Sushilabai K. Sankelcha, Nashik V. Income tax Officer, Nashik

CO 1/PUN/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3819 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 09-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Condonation of delay
• Section: 147; 148; 6

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.1972/PUN/2016 !' # $# / ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER, WARD- 2(1), NASHIK. ....... / APPELLANT %' / V/S. SMT. SUSHILABAI K. SANKLECHA, 11, CITY PLAZA, OPP. KALIKA MANDIR, OLD AGRA ROAD, NASHIK-422 002. PAN : ACVPS3607G / RESPONDENT &' ( /CO NO. 01/PUN/2017 !' # $# /ASSESSMENT YEAR: 2008-09 (ARISING OUT OF ITA NO.1972/PUN/2016) SMT. SUSHILABAI K. SANKLECHA, 11, CITY PLAZA, OPP. KALIKA MANDIR, OLD AGRA ROAD, NASHIK-422 002. PAN : ACVPS3607G .. / CROSS OBJECTOR %' / V/S. THE INCOME TAX OFFICER, WARD- 2(1), NASHIK. / RESPONDENT 2 ITA NO.1972/PUN/2016 CO NO. 01/PUN/2017 A.Y.2008-09 APPELLANT BY : SHRI PRAMOD SHINGTE RESPONDENT BY : SHRI PANKAJ GARG / DATE OF HEARING : 15.05.2018 / DATE OF PRONOUNCEMENT : 16.05.2018 ) / ORDER PER D. KARUNAKARA RAO, AM THIS CORE APPEAL FILED BY REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-2, NASHIK DATED 22.06.20 16 FOR ASSESSMENT YEAR 2008-09. THE ASSESSEE HAS FILED CROSS OBJECTION IN THE APPEAL FILED BY THE DEPARTMENT. ITA NO.1972/PUN/2016 ( BY REVENUE) A.Y. 2008-09 2. IN ITA NO. 1972/PUN/2016, THE REVENUE HAS RAISED FOLLO WING GROUNDS IN APPEAL: 1. WHETHER ON THE FACTS & CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN QUASHING THE REASSESSMENT O RDER U/S 147 PASSED BY THE AO. RELYING ON THE DECISION OF THE HON'BLE S UPREME COURT IN THE CASE OF GKN DRIVE SHAFT (INDIA) LTD. VS. ITO 259 IT R 19 WITHOUT APPRECIATING THE FACT THAT THE A.O HAD DISPOSED OFF THE OBJECTION FILED BY THE ASSESSEE BY WAY OF MAKING A NOTING IN THE ORDER SHEET AND SIGNED BY THE A.R OF THE ASSESSEE? 2. WHETHER ON THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN QUASHING THE REASSESSMENT ORDER U/ S 147 PASSED BY THE AO. BY NOT CONSIDERING SECTION 292B OF THE INCOME-T AX ACT-1961? 3. THE APPELLANT PRAYS LEAVE TO ADD, ALTER, CLARIFY , AMEND OR TO WITHDRAW ANY GROUNDS OF APPEAL AS AND WHEN THE OCCASION DEMA NDS. 3 ITA NO.1972/PUN/2016 CO NO. 01/PUN/2017 A.Y.2008-09 3. BRIEFLY STATED RELEVANT FACTS INCLUDE THAT THE ASSESSE E HAS FILED RETURN OF INCOME ON 06.03.2009 DECLARING TOTAL INCOME AT RS.2,09,130/ -. THE CASE OF THE ASSESSEE WAS RE-OPENED ON 02.08.2012 BY ISSUING NOT ICE U/S. 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE A CT). THE ASSESSING OFFICER NOTED THAT THE ASSESSEE ENTERED INTO DEVELOPMEN T AGREEMENT WITH M/S.VASCON DEWLLING PVT. LTD. FOR DEVELOPING THE PROPERTY BE ARING SURVEY NO. 82/1/1/1+2+3 AT WADALA, NASHIK. THE SALE VALUE OF THE SAID PROPERTY WAS CREDITED BY M/S. SANKLECHA CONSTRUCTIONS IN ITS PROFIT AND LOSS ACCOUNT. THE ASSESSING OFFICER HELD THAT AS THE PER THE PROVISION OF THE INCOME TAX ACT, 1961, THE SALE SHOULD HAVE BEEN RECORDED IN THE BOOKS OF PURCHASER A ND NOT IN THE BOOKS OF M/S. SANKLECHA CONSTRUCTION AND THE SHORT TERM/ LONG TERM CAPITAL GAIN/LOSS SHOULD BE TAXED IN THE HANDS OF ASSESSEE . IN RE-ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASSESSED THE TOTAL INCO ME OF ASSESSEE AT RS.43,75,800/- (ROUNDED OFF) AND COMPLETED THE ASSESSMENT U/S. 143(3 ) R.W.S. 147 BY MAKING ADDITION OF RS. 41,66,666/- ON ACCOUNT OF SHO RT TERM CAPITAL GAIN. 4. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) CHALLENGING THE RE-ASSESSMENT PROCEEDINGS ON THE G ROUND THAT ASSESSING OFFICER DISPOSED OFF THE OBJECTION FILED BY ASSESSE E BY WAY OF MAKING A NOTING IN THE ORDER SHEET AND NOT FOLLOWED THE PROPER PROCEDURE LAID DOWN BY THE HON'BLE SUPREME COURT OF INDIA. THE CIT(A) IN THE CASE OF ASSESSEE HELD THAT THE ASSESSING OFFICER HAS NOT ADHERED TO THE P ROCEDURE LAID DOWN BY THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. VS. INCOME TAX OFFICER & ORS REPORTED AS 259 I TR 19 AND THUS, ASSESSMENT ORDER IS DECLARED INVALID BY CIT(A). AGAINST THE SAID FINDINGS OF THE CIT(A), THE DEPARTMENT IS IN APPEAL BEFORE US RAISING GROUNDS EXTRACTE D ABOVE. 4 ITA NO.1972/PUN/2016 CO NO. 01/PUN/2017 A.Y.2008-09 5. THE LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDER OF ASSESSING OFFICER/ CIT(A). 6. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY SUPPORTIN G THE FINDINGS OF CIT(A) SUBMITTED THAT THE ASSESSEE SOUGHT THE REASONS FOR RE-OPENING OF THE ASSESSMENT AND THEREAFTER, FILED OBJECTIONS AGAINST RE-OPE NING OF THE ASSESSMENT. THE ASSESSING OFFICER WITHOUT DISPOSING OF THE O BJECTIONS AS HAS BEEN LAID DOWN BY THE HON'BLE SUPREME COURT OF INDIA IN T HE CASE OF GKN DRIVE SHAFT (INDIA) LTD. ITO & ORS (SUPRA) PROCEEDED ON TO MAKE ASSESSMENT. THE LD. COUNSEL FURTHER, SUBMITTED THAT SIMILAR ISSUE INVOLVED IN THIS CASE WAS ADJUDICATED BY PUNE BENCH OF TRIBUNAL IN THE CASE O F ITO VS. SMT. NIRMALA VIJAY SANKLECHA, ITA NO. 1937/PUN/2016 AND CO NO. 35/PUN/2016 FOR A.Y. 2008-09 DECIDED ON 23.02.2018. THE CONTENTS OF PA RA 15 OF THE ORDER OF TRIBUNAL ARE RELEVANT IN THIS REGARD AND SAME IS EXTRACTED AS UNDER: 15. IT IS APPARENT FROM RECORD THAT THE ASSESSING O FFICER COMMITTED ERROR IN NOT FOLLOWING THE PROPER PROCEDURE FOR DECIDING THE OBJECTIONS OF ASSESSEE AGAINST RE-OPENING OF ASSESSMENT. THE ASSE SSING OFFICER IS A QUASI JUDICIAL AUTHORITY AND IS THEREFORE, DUTY BOU ND TO FOLLOW THE LAW LAID DOWN BY THE HON'BLE SUPREME COURT OF INDIA, THE HON 'BLE HIGH COURTS AND THE APPELLATE AUTHORITIES. THE ASSESSMENT ORDERS HA VE BEEN PASSED BY THE ASSESSING OFFICER IN BOTH THE CASES WITHOUT FOL LOWING THE PRINCIPLES AS SET OUT BY THE HON'BLE APEX COURT AND HON'BLE JURIS DICTIONAL HIGH COURT. THUS, CONSIDERING THE FACTS OF THE CASE AND IN THE LIGHT OF VARIOUS JUDGMENTS THE IMPUGNED ORDERS ARE SET ASIDE AND APP EALS OF THE REVENUE ARE DISMISSED. THUS, CONSIDERING THE ABOVE REFERRED DECISION OF PUNE BENC H OF TRIBUNAL, THE FACT THAT THE ASSESSING OFFICER HAD NOT DISPO SED OF OBJECTIONS OF THE ASSESSEE AGAINST ISSUANCE OF NOTICE FOR RE-OPENING AS SESSMENT BY A 5 ITA NO.1972/PUN/2016 CO NO. 01/PUN/2017 A.Y.2008-09 SPEAKING ORDER, THE IMPUGNED ORDER IS SET ASIDE AND APPE AL OF THE REVENUE IS DISMISSED. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. CO NO. 01/PUN/2017 ( BY ASSESSEE) A.Y. 2008-09 8. CONDONATION OF DELAY OF 57 DAYS : AN AFFIDAVIT WAS FILED WITH REGARD TO DELAY IN FILING CROSS OBJECTION IN LATE BY 57 DAYS DUE TO MIS COMMUNICATION AMONG THEIR STAFF. SINCE THE DELAY IN FILING CROSS OBJECTION IS UNINTENTIONAL, THE CROSS OBJECTION FILED BY ASSESSEE IS ADMITTED AND TAK EN UP FOR ADJUDICATION. 9. IN CROSS OBJECTIONS, THE ASSESSEE HAS ASSAILED THE O RDER OF CIT(A) ON THE ADDITION MADE ON MERIT. SINCE, I UPHOLD THE FINDINGS OF CIT(A) I N QUASHING THE ASSESSMENT ORDER AS MENTIONED BY THE LD. AR, THE CROS S OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND IS DISMISSED. 10. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED AND CROSS OBJECTION FILED BY ASSESSEE IS ALSO DISMISSED. ORDER PRONOUNCED ON 16 TH DAY OF MAY, 2018. SD/- ( . / D. KARUNAKARA RAO ) / ACCOUNTANT MEMBER / PUNE; '# / DATED : 16 TH MAY, 2018. SB 6 ITA NO.1972/PUN/2016 CO NO. 01/PUN/2017 A.Y.2008-09 )*&!+,-.-$+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEAL)-2, NASHIK. 4. THE PR. CIT-2, NASHIK. 5. &'( ))*+ , , *+ , - -./ , / DR, ITAT, SMC BENCH, PUNE. 6. (0 12 / GUARD FILE. // TRUE COPY // , 3 / BY ORDER, )4 */ /PRIVATE SECRETARY , *+ , / ITAT, PUNE.