Jocil, Guntur V. ACIT, Circle-1(1), Guntur

CO 11/VIZ/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3739 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 01-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V APPALA RAJU
• Section: 143(3); 6; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 07 / VIZ /201 8 (ASST. YEAR : 20 12 - 13 ) ACIT, CIRCLE - 1(1), GUNTUR. V S . M/S. JOCIL LIMITED, DOKIPARRU, NARASARAOPET ROAD, MEDIKONDURU MANDAL, GUNTUR DISTRICT . PAN NO. AAACJ 5606 L (APPELLANT) (RESPONDENT) C.O.NO. 11/VIZ/2018 (ARISING OUT OF ITA NO. 07 / VIZ /201 8) (ASST. YEAR : 20 12 - 13 ) M/S. JOCIL LIMITED, DOKIPARRU, NARASARAOPET ROAD, MEDIKONDURU MANDAL, GUNTUR DISTRICT. VS. ACIT, CIRCLE - 1(1), GUNTUR. PAN NO. AAACJ 5606 L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI C. SUBRAHMANYAM FC A. DEPARTMENT BY : SHRI V. APPALA RAJU SR. DR DATE OF HEARING : 23 / 0 4 /201 8 . DATE OF PRONOUNCEMENT : 25 / 04 /201 8 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY THE 2 ITA NO. 07/VIZ/2018 C.O.NO. 11/VIZ/2018 ( M/S. JOCIL LTD. ) COMMISSIONER OF INCOME TAX (APPEALS) - 1 , GUNTUR , DATED 30/11 /201 7 FOR THE ASSESSMENT YEAR 20 12 - 13 . 2. IN THIS CASE, THE ASSESSING OFFICER HAS PASSED AN ORDER UNDER SECTION 143(3) READ WITH SEC. 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') DATED 28/02/2017. ON APPEAL, LD. CIT(A) HAS HELD THAT THE ORDER PASSED BY THE ASSESSING OFFICER CANNOT SURVIVE FOR THE REASON THAT THE VERY BASIS ON WHIC H 263 OF THE ACT ISSUED BY THE PR . CIT HAS BEEN SET ASIDE BY THE ITAT , VISAKHAPATNAM BENCH IN ITA NO. 94/VIZ/2017, DATED 06/09/2017 AND THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE ORDER IS EXTRACTED AS UNDER: - IN THIS CASE, THE A O PASSED ORDER U/S. 143(3) OF IT ACT ON 14 - 03 - 2015 DETERMINING THE TAXABLE INCOME AT RS. 16,80,12, 320/ - AS AGAINST THE INCOME RETURNED OF RS. 16,19,57,360/ - . SUBSEQUENTLY, THE PR. CIT, GUNTUR INVOKED THE PROVISIONS OF SEC. 263 AND DIRECTED THE AD TO DISALLOW THE CLAIM MADE BY THE ASSESSEE U/S. 80 I A OF IT ACT. WHILE DOING SO, THE PR. CIT, GUNTUR CONSIDERED THAT THE ASSESSEE - COMPANY IS NOT ENTITLED FOR THE CLAIM AS THE COMPANY HAS CARRY FORWARD LOSSES AND AS PER SEC. 80 I A(5) OF IT ACT, THE ELIGIBLE UNIT NEED TO BE TREATED AS THE ONLY SOURCE OF INCOME. SIMULTANEOUSLY, THE ASSESSEE FILED APPEAL AGAI NST TH E ORDER U/S. 263 OF IT ACT WITH HON'BLE ITAT , VISAKHAPATNAM. THE SAME WAS DISPOSED VIDE ITA NO. 94/VIZ/ 2017 DATED 06 - 09 - 2017 FOR THE AY IN QUESTION, WHEREIN IT WAS HELD THAT THE ORDER PASSED BY THE PR.CIT, GUNTUR IS UNSUSTAINABLE AND SET ASIDE THE OR DER OF THE PR. CIT, GUNTUR AND RESTORED THE ORDER PASSED BY THE ASSESSING OFFICER. THE RELEVANT PORTION IN PARA 3.2 OF THE ORDER IS REPRODUCED AS UNDER: 3 ITA NO. 07/VIZ/2018 C.O.NO. 11/VIZ/2018 ( M/S. JOCIL LTD. ) I N THE INSTANT CASE THIS TRIBUNAL HELD THE ISSUE IN FAVOUR OF THE ASSESSEE IN THE CASE CITED (SUPRA) A ND LD. CIT HAVING REFERRED THE DECISION OF THIS TRIBUNAL IN DEVI SEAFOODS LTD VS. J CI T SHOULD HAVE FOLLOWED THE DECISION OF THIS TRIBUNAL AS PER THE JUDICIAL HIERARCHY. IN VIEW OF THE FOREGOING DISCUSSION, WE HOLD THAT THE ORDER OF THE L D. PCIT IS UNSUSTAINABLE ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. PCIT AND RESTORE THE ASSESSMENT ORDER.' IN VIEW OF THE ABOVE, THE ORDER GIVING EFFECT TO ORDER PASSED U/S. 263 WHICH IS SUBJECT MATTER OF APPEAL NEEDS TO BE DECIDED. ONCE AN ORDER U/S. 263 WAS S ET ASIDE THE CONSEQUENTIAL ORDER PASSED BY THE AO DOES NOT SURVIVE. HENCE THE APPEAL IS ALLOWED ACCORDINGLY. 3 . LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER PASSED BY THE ASSESSING OFFICER, WHEREAS LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUPPORTED THE ORDER PASSED BY THE LD. CIT(A). 4 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 5. IN THIS CASE, LD. CIT(A) ALLOWED THE APPEAL FILED BY THE ASSESSEE ON THE GROUND THAT THE VERY BASIS ON WHICH 263 WAS ISSUED BY THE LD. PR.CIT WAS SET ASIDE BY THE ITAT, THEREFORE, CONSEQUENT TO THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) READ WITH SEC. 263, DAT ED 28/02/2017 CANNOT SURVIVE. WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LD.CIT(A). THUS, THIS APPEAL FILED BY THE REVENUE IS DISMISSED. 6 . SO FAR AS CROSS OBJECTION FILED BY THE ASSESSEE IS CONCERNED, IN VIEW OF OUR ABOVE DECISION, C.O. IS ONLY MER E ACADEMIC AND THE SAME IS LIABLE TO BE DISMISSED , A CCORDINGLY DISMISSED . 4 ITA NO. 07/VIZ/2018 C.O.NO. 11/VIZ/2018 ( M/S. JOCIL LTD. ) 7 . IN THE RESULT, APPEAL FILED BY THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 2 5 T H DAY OF APRIL , 201 8 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 5 T H APRIL , 201 8 . VR/ - COPY TO: 1. THE ASSESSEE - M/S. JOCIL LIMITED, DOKIPARRU, NARASARAOPET ROAD, MEDIKONDURU MANDAL, GUNTUR DISTRICT. 2. THE REVENUE - ACIT, CIRCLE - 1(1), GUNTUR. 3. THE PR. CIT , GUNTUR. 4. THE CIT(A) - 1, GUNTUR. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.