M/s. Tamilnadu Jai Bharath Mills Ltd., Aruppukottai V. ACIT, Virudhunagar

CO 14/CHNY/2010

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 5085 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-08-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 20-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K R MEENA
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Reopening of assessment
• Section: 143(3); 80HHC; 115JB; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AN D SHRI GEORGE MATHAN, JUDICIAL MEMBER .. I.T.A. NO. 363/MDS/2010 ASSESSMENT YEAR : 2001-02 THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-I, VIRUDHUNAGAR. V. M/S. TAMILNAD JAIBHARATH MILLS LTD., 212, RAMASAMY NAGAR, ARUPPUKOTTAI-626159. PAN: AABCT0158J (APPELLANT) (RESPONDENT) A N D C.O. NO. 14/MDS/2010 (IN ITA NO. 363/MDS/2010) ASSESSMENT YEAR : 2001-02 M/S. TAMILNADU JAIBHARATH MILLS LTD., V. THE A SSISTANT COMMISSIONER ARUPPUKOTTAI. OF INCOME-TAX ,CIRCLE-I, VIRUDHUNAGAR. (CROSS OBJECTOR) (RESPONDEN T) DEPARTMENT BY : SHRI K.R. MEENA ASSESSEE BY : SHRI R. VIJAYARAGHAVAN O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : ITA NO. 363/MDS/2010 IS AN APPEAL BY THE REVENUE A GAINST THE ORDER OF THE LEARNED CIT(A)-II, MADURAI IN APPEAL NO. ITA NO . 278/08-09 DATED 17-12- 2009 FOR THE ASSESSMENT YEAR 2001-02. C.O. NO. 14/ MDS/2010 IS A CROSS I.T.A. NO.363/MDS/2010 & C.O. NO. 14/MDS/2010 2 OBJECTION FILED BY THE ASSESSEE IN REVENUES APPEAL IN ITA NO. 363/MDS/2010 FOR THE ASSESSMENT YEAR 2001-02. 2. SHRI K.R. MEENA, LEARNED CIT-DR REPRESENTED ON B EHALF OF THE REVENUE AND SHRI R. VIJAYARAGJAVAN, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 3. THE ASSESSEE HAS ALSO FILED AN APPLICATION FOR A DMISSION OF ADDITIONAL GROUNDS OF CROSS OBJECTIONS WHEREIN THE ASSESSEE HA S CHALLENGED THE ACTION OF REOPENING OF THE ASSESSMENT, ESPECIALLY WHEN THE IS SUE IN THE REOPENING BEING THE DETERMINATION OF THE DEDUCTION U/S. 80HHC ON TH E BASIS OF THE COMPUTATION U/S. 115JB OF THE INCOME-TAX ACT,1961 WAS BEFORE TH E ASSESSING OFFICER AT THE TIME OF ORIGINAL ASSESSMENT AND WAS THE SUBJECT MAT TER OF APPEAL. 4. IN THE ADDITIONAL GROUNDS OF CROSS OBJECTIONS TH E ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. THE CIT(A) IN HIS ORDER DATED 14.07.2 004 HAS HELD THAT WHILE DETERMINING THE BOOK PROFIT UNDER SECTIO N 115JB, RELIEF IN RESPECT OF EXPORT SHOULD BE COMPUT ED ON THE BASIS OF BOOK PROFIT. AS SUCH THE ORDER OF ASSESSMENT IS MERGED WITH THE ORDER OF CIT(A) AND HENCE THE ASSESSMENT ORDER CANNOT BE REOPENED UNDER SECTION 147 ON THIS ISSUE. 2. IN ANY EVENT ALL THE FACTS RELATING TO COMPUTATION OF SECTION 115JB WAS BEFORE THE ASSESSING OFFICER AT T HE TIME OF ORIGINAL ASSESSMENT AND WAS SUBJECT MATTER OF APPEAL. HENCE REOPENING OF ASSESSMENT BEYOND FOUR I.T.A. NO.363/MDS/2010 & C.O. NO. 14/MDS/2010 3 YEARS FROM THE END OF THE ASSESSMENT YEAR IS WITHOU T JURISDICTION IN VIEW OF THE PROVISO TO SUB-SECTION (1) OF SECTION 147. 5. IT WAS SUBMITTED BY THE LEARNED DR THAT THE ADDI TIONAL GROUNDS AS RAISED BY THE ASSESSEE WERE NOT LIABLE TO BE ENTERTAINED I NSOFAR AS THE ISSUE HAD NOT BEEN RAISED BEFORE THE LEARNED CIT(A) AND THE LEARN ED CIT(A) HAD NOT ADJUDICATED ON THE SAME. 6. IN REPLY, THE LEARNED AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO GROUND NO.2 AS RAISED BEFORE THE LEARNED CIT(A) WHE REIN THE ASSESSEE HAS RAISED THE GROUND AS FOLLOWS:- THE REOPENING IS AGAINST THE PROVISIONS OF THE I.T.ACT AS THE MATTER HAS BEEN ONCE FOR ALL SETTLED BY CIT(A)S ORDER DATED 14-07-2004 IN THE APPEAL AGAINST THE ORDER U/S. 143(3) OF THE ACT. THE GROUND TAKEN BY THE ASSESSING OFFICER, THAT 115JB ISSUE HAS NO PLACE IN THE CIT(A)S ORDER IS AGAINST THE FACTS. IT SEEMS THAT THE ASSESSING OFFICER HAS NOT PROPERLY READ THE CIT(A)S ORDER. IT WAS THE SUBMISSION THAT THIS GROUND AS RAISED BE FORE THE LEARNED CIT(A) HAD NOT BEEN DISPOSED OF BY THE LEARNED CIT(A). IT WAS THE SUBMISSION THAT AS THE I.T.A. NO.363/MDS/2010 & C.O. NO. 14/MDS/2010 4 SAME HAD NOT BEEN DISPOSED OF, IT SHOULD BE DEEMED TO HAVE BEEN REJECTED. IT WAS THE FURTHER SUBMISSION BY THE LEARNED AUTHORISE D REPRESENTATIVE THAT IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT REPORTED IN 229 ITR 383, ASSE SSEE WAS ENTITLED TO RAISE THE GROUND BEFORE THE TRIBUNAL, ESPECIALLY WHEN ALL THE RELEVANT FACTS WERE ON RECORD. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE GROUND OF APPEAL FILED BY THE ASSESSEE BEFORE THE LEARNED CIT (A) CLEARLY SHOWS THAT THE ISSUE OF REOPENING OF THE ASSESSMENT HAS BEEN RAISE D BEFORE THE LEARNED CIT(A). A PERUSAL OF THE ORDER OF THE LEARNED CIT(A) CLEARL Y SHOWS THAT THE LEARNED CIT(A) HAS NOT ADJUDICATED THE SAID GROUND NO.2. I T IS NOTICED THAT THE LEARNED CIT(A) HAS ONLY ADJUDICATED THE ISSUE ON MERITS. I T IS FURTHER NOTICED THAT THE ISSUE RAISED BY THE ASSESSEE AGAINST THE REOPENING OF THE ASSESSMENT GOES TO THE ROOT OF THE MATTER AND CONSEQUENTLY IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD., REFERRED TO SUPRA THE ADDITIONAL GROUND AS RAISED BY THE ASSESSEE STA NDS ADMITTED. AS MENTIONED EARLIER, THE LEARNED CIT(A) HAS NOT ADJUDICATED ON THIS ISSUE OF REOPENING WHICH HAS BEEN RAISED IN GROUND NO.2 OF THE ASSESSEES AP PEAL BEFORE THE LEARNED CIT(A). IN THE CIRCUMSTANCES, WE ARE OF THE VIEW T HAT IN THE INTEREST OF JUSTICE THE ISSUES IN THE APPEAL BY THE REVENUE AS ALSO BY THE ASSESSEE IN THE CROSS OBJECTION MUST BE RESTORED TO THE FILE OF THE LEARN ED CIT(A) FOR RE-ADJUDICATION I.T.A. NO.363/MDS/2010 & C.O. NO. 14/MDS/2010 5 AFTER ADJUDICATING ON GROUND NO.2 OF THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) AND WE DO SO. IN THE CIRCUMSTANCES, THE APPEAL OF THE REVENUE AS ALSO THE CROSS OBJECTION O F THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. THE ORDER WAS PRONOUNCED IN THE COURT ON 18-08-2 010. SD/- SD/- (ABRAHAM P. GEORGE) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 18 TH AUGUST, 2010. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE