Vyas Realties Pvt. :td., Pune V. ACIT, Pune

CO 39/PUN/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 9120 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 19-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Section: 143(3); 260A; 6; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO S . 2516 & 2517 /PN/201 2 ASSESSMENT YEAR S : 200 6 - 07 & 2007 - 08 A SST. COMMISSION ER OF INCOME TAX, CIRCLE - 7, PUNE VS. VYAS REALTIES PVT. LTD. 1206/4A, VYAS VERTEX, J.M. ROAD, PUNE - 411004 (APPELLANT) (RESPONDENT) PAN NO. AABCV7093D CO NOS. 39 & 40/ PN/2013 (ARISING OUT OF ITA NOS. 2516 & 2517/ PN/2012) ASSESSMENT YEAR S : 200 6 - 07 & 2007 - 08 VYAS REALTIES PVT. LTD. 1206/4A, VYAS VERTEX, J.M. ROAD, PUNE - 411004 VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 7, PUNE ( CROSS OBJECTOR ) ( APPELLANT IN THE APPEAL ) PAN NO. AABCV7093D REVENUE BY: SHRI A.K. MODI ASSESSEE BY: SHRI SUNIL GANOO DATE OF HEARING : 24 - 09 - 2013 DATE OF PRONOUNCEMENT : 29 - 1 1 - 2013 ORDER P ER R.S. PADVEKAR , JM : - THESE TWO APPEALS ARE FILED BY THE REVENUE CHALLENGING THE RESPECTIVE IMPUGNED ORDERS OF THE LD. CIT(A) - III, PUNE FOR THE A.YS. 2006 - 07 AND 2007 - 08. THE REVENUE HAS TAKEN THE FOLLOWING GROUND WHICH IS COMMON IN BOTH THE APPEALS. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE AFTER HOLDING THAT THE ASSESSMENT ORDER PASSED BY THE AO CO NSEQUENT TO THE ORDER OF THE CIT U/S. 263 OF THE ACT HAS LOST THEIR BASE AND DOES NOT SURVIVE. 2. THE BRIEFLY STATED FACTS ARE AS UNDER. IN BOTH THE ASSESSMENT YEARS LD. CIT - IV, PUNE BY EXERCISING HIS POWERS U/S. 263 OF THE INCOME - TAX ACT PASSED THE ORDERS DATED 31 - 03 - 2011 SETTING ASIDE THE EARLIER ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE ACT 2 ITA NOS. 2516 & 2517 /PN/2012 & CO NOS. 39 & 40 /PN/2013, VYAS REALTIES PVT. LTD., PUNE FOR BOTH THE ASSESSMENT YEARS WHICH ARE BEFORE US. THE ASSESSEE CHALLENGED THE ORDERS PASSED BY THE LD. CIT U/S. 263 BEFORE THE TRIB UNAL BY FILING THE APPEAL BEING ITA NOS. 566 & 567/PN/2011 AND THE TRIBUNAL QUASHED THE ORDER PASSED BY THE LD. CIT U/S. 263 VIDE ORDER DATED 23 - 12 - 2011. IN THE MEANTIME THE ASSESSING OFFICER GAVE EFFECT TO THE ORDER OF THE LD. CIT AND PASSED THE ASSESSME NT ORDERS U/S. 143(3) R.W. SEC. 263 OF THE INCOME - TAX ACT FOR THE A.YS. 2006 - 07 AND 2007 - 08 , WITHDRAWING THE DEDUCTION U/S. 80IB(10) OF THE ACT WHICH WAS ALLOWED IN THE ORIGINAL ASSESSMENTS BY THE ASSESSING OFFICER. THE ASSESSEE CHALLENGED THE ORDER PASSE D BY THE ASSESSING OFFICER IN COMPLIANCE WITH THE ORDER PASSED BY THE LD. CIT U/S. 263 OF THE INCOME - TAX ACT BEFORE THE LD. CIT(A). THE LD. CIT(A) DISMISSED THE APPEALS FILED BY THE ASSESSEE ON THE REASON THAT SUBSEQUENTLY THE ASSESSING OFFICER GAVE EFFEC T TO THE ORDER OF THE TRIBUNAL QUASHING THE ORDER PASSED BY THE LD. CIT U/S. 263 AND DELETED THE ADDITIONS VIDE ORDER DATED 03 - 10 - 2012. AFTER C ONSIDER ING THE SAID SITUATION , THE LD. CIT(A) HELD THAT THE APPEALS FILED BY THE ASSESSEE ARE INFRUCTUOUS AND NE ED NOT BE ADJUDICATED . A GAINST THE ORDER S OF THE LD. CIT(A) , T HE REVENUE HAS FILED THE PRESENT APPEALS IN THE TRIBUNAL . 3. WE HAVE HEARD THE PARTIES. WE FIND THAT THE ORDER S PASSED BY THE LD. CIT, PUNE U/S. 263 HAVE BEEN QUASHED BY THE TRIBUNAL AND HENC E, AS RIGHTLY OBSERVED BY THE LD. CIT(A) AND THE ASSESSING OFFICER HAS GIVEN THE EFFECT TO THE ORDER OF THE TRIBUNAL ALLOWING THE CLAIM OF THE ASSESSEE, THE ASSESSMENT ORDERS WHICH ARE PASSED IN COMPLIANCE OF THE ORDER OF LD. CIT U/S. 263 OF THE ACT DO NOT SURVIVE AND BECAME NONEST. WE, ACCORDINGLY, DISMISS THE GROUND TAKEN BY THE REVENUE IN BOTH YEARS AND DISMISS THE REVENUES APPEAL S. 4. SO FAR AS CROSS OBJECTIONS OF THE ASSESSEE ARE CONCERNED, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 3 ITA NOS. 2516 & 2517 /PN/2012 & CO NOS. 39 & 40 /PN/2013, VYAS REALTIES PVT. LTD., PUNE 1. CROSS OB JECTOR PRAYS FOR CONFIRMATION OF CIT(A) ORDER. 2. CROSS OBJECTOR PRAYS FOR COST U/S. 254(2B) OF THE ACT, 1961. RS.10,000/ - . 3. CROSS OBJECTOR PRAYS OF JUST AND EQUITABLE RELIEF / COMPENSATION. 5 . GROUND NO. 1 IS SUPPORTING THE ORDER OF THE LD. CIT(A) HENCE, THE SAID GROUND IS INFRUCTUOUS AND NO SPECIFIC ADJUDICATION IS REQUIRED. SO FAR AS GROUND NO. 2 IS CONCERNED THE ASSESSEE HAS PRAYED FOR AWARDING OF COST U/S. 254(2B) OF THE ACT, 1961 OF RS.10,000/ - ON THIS ISSUE. 6 . WE HAVE HEARD THE RIVAL SUBM ISSIONS OF THE PARTIES. THE MAIN PL A NK OF LD. COUNSEL S ARGUMENT IS THAT THERE WAS NO NEED FOR THE REVENUE TO FILE THE PRESENT APPEALS BEFORE THE TRIBUNAL WHEN ADMITTEDLY AFTER QUASHING THE ORDERS PASSED BY THE LD. CIT U/S. 263 OF THE ACT BY THE HON'BLE T RIBUNAL, T HE ASSESSING OFFICER HAS GIVEN EFFECT TO THE SAID ORDER AND DELETED THE ADDITIONS. IT IS ARGUED THAT IN SUCH A SITUATION , IT WAS INCUMBENT UPON THE REVENUE NOT TO INITIATE THE PRESENT UNNECESSARY LITIGATION BY FILING THE PRESENT APPEALS WHICH HA VE CAUSED HARASSMENT AND COST TO THE ASSESSEE. HE PLEADED THAT SPECIFIC PROVISION IS MADE FOR AWARDING THE COST U/S. 254(2B) OF THE ACT AND AS THE PRESENT APPEALS FILED BY THE REVENUE ARE WITHOUT ANY CAUSE, THE ASSESSEE MAY BE COMPENSATED BY AWARDING THE COST. THE LEARNED COUNSEL ALSO RELIED ON THE FOLLOWING DECISION S IN SUPPORT OF HIS PLEA FOR AWARDING THE COST TO THE ASSESSEE (I) UNION OF INDIA VS. RAJA MOHAMMED AMIR MOHAMMAD KHAN, APPEAL (CIVIL) 2501 OF 2002 . (II) CHARANJILAL TAK SHYAM PARWANI & PA RTY VS. UNION OF INDIA & ORS., 252 ITR 333 (RAJ.) . (III) SHRAMJIVI NAGARI SAHAKARI PAT SANSTHA MARYADIT VS. ADDL. CIT, RANGE - 6, PUNE, ITA NO. 477/PN/2010 ORDER DATED 08 - 06 - 2011. 4 ITA NOS. 2516 & 2517 /PN/2012 & CO NOS. 39 & 40 /PN/2013, VYAS REALTIES PVT. LTD., PUNE 7 . PER CONTRA, THE LD. CIT (DR) SUBMITS THAT THE REVENUE HAS CHALLENGED THE ORDER OF THE HON'BLE TRIBUNAL IN THE HON'BLE HIGH COURT OF BOMBAY BY FILING THE APPEAL S U/S. 260A OF THE ACT ON 11 - 06 - 2012 AND HENCE, MATTER HAS NOT REACHED THE FINALITY. HE SUBMITS THAT FOR KEEPING THE MATTER ALIVE , THE REVENUE HAS NO OPTION BUT TO CHALL ENGE THE ORDERS OF THE LD. CIT(A) BEFOR E THIS HON'BLE TRIBUNAL AS IN CASE IF THE ORDERS OF THE HON'BLE TRIBUNAL ARE REVERSED BY THE HON'BLE HIGH COURT , THEN I N SUCH SITUATION , THE REVENUE WILL BE WITHOUT ANY REMEDY AND THE PRESENT APPEALS CANNOT BE DESCRIB ED AS A FRIVOLOUS LITIGATION BY THE REVENUE. 8. IN THIS CASE, IT IS NOT IN DISPUTE THAT THE REVENUE HAS CHALLENGED THE ORDER S PASSED BY THIS TRIBUNAL IN ITA NOS. 566 & 567/PN/2011 DATED 23 - 12 - 2011 QUASHING THE ORDER PASSED BY THE LD. CIT, PUNE U/S. 263 BEFORE THE HON'BLE HIGH COURT OF BOMBAY AND SAID FACT IS ALSO FAIRLY ADMITTED BY THE L D. COUNSEL. IT IS SEEN THAT THE APPEALS FILED BY THE REVENUE IN THE HON'BLE HIGH COURT OF BOMBAY ON 11 - 06 - 2012 AND THOSE APPEALS WERE LISTED FOR ADMISSION ON 30 - 09 - 2013 . W HEN THE PRESENT APPEALS WERE HEARD A DMITTEDLY APPEALS FILE D BY THE REVENUE WERE PENDING IN HON'BLE HIGH COURT OF BOMBAY . 9. I N THE CASE OF RAJA MOHAMMED AMIR MOHAMMAD KHAN (SUPRA) T HE RESPONDENT IN THE SAID CASE WAS THE SON OF RAJA OF MAHMUDABAD IN DIS TT. SITAPUR UTTAR PRADESH. IN DECEMBER, 1957 , THE ERSTWHILE RAJA OF MAHMUDABAD, FATHER OF THE RESPONDENT, MIGRATED TO PAKISTAN AND BECAME A CITIZEN OF PAKISTAN. BUT THE RESPONDENT AND HI S MOTHER RANI KANIZ ABDI CONTINUED TO RESIDE IN INDIA AS INDIAN CITIZ EN. ON THE MIGRATION OF THE RAJA (KING) THE PROPERTY OF THE MIGRATED (KING) DECLARED AS ENEMY PROPERTY AND THE SAME WAS VESTED IN THE CUSTODIAN AS PER THE ENEMY PROPERTY (CUSTODY & REGISTRATION) ORDER, 1965. THE SAID K ING DIED IN 1973 AND THE RESPONDEN T IN THE SAID CASE APPROACHED THE GOVERNMENT FOR RELEASE OF THE PROPERTY BY TAKING THE PLEA THA T AFTER THE 5 ITA NOS. 2516 & 2517 /PN/2012 & CO NOS. 39 & 40 /PN/2013, VYAS REALTIES PVT. LTD., PUNE DEATH OF HIS FATHER I.E. ERSTWHILE KING , THE PROPERTY BY INHERITANCE VESTED IN HIM AS LEGAL HEIR AND HE ALSO GOT THE DECLARATION FROM THE COURT TO TH AT EXTENT. THERE WAS A BATTLE OF LITIGATION FOR GETTING THE POSSESSION OF THE PROPERTY FOR ALMOST 32 YEARS AS THE GOVERNMENT HAS AGREED TO RELEASE 25% OF THE PROPERTY EVEN IF THE RESPONDENT WAS ENTITLED TO THE WHOLE OF THE PROPERTY . U LTIMATELY THE HIGH C OURT GAVE THE RELIEF TO THE RESPONDENT AND DIRECTED THE GOVERNMENT TO HANDOVER POSSESSION OF THE PROPERTIES, ACTUAL OR JURIDICAL , WITHIN THREE MONTHS FROM THE DATE OF PASSING OF THE ORDER. 9.1 . THE MATTER WAS CARRIED BEFORE THE HON'BLE SUPREME COURT BY THE GOVERNMENT AND HON'BLE SUPREME COURT WAS UNHAPPY WITH THE APPROACH OF THE GOVERNMENT AUTHORITY IN THE SAID MATTER AND HON'BLE SUPREME COURT HAS HELD THAT THE AUTHORITY HAS DEPRIVED THE RESPONDENT OF THE POSSESSION AND ENJOYMENT OF THE PROPERTIES FOR TH E LAST 32 YEARS WITHOUT ANY JUSTIFICATION. IT IS FURTHER OBSERVED THAT THE REASONS FOR DOING SO WAS THAT BUILDINGS WERE BEING OCCUPIED BY THE D Y. COMMISSIONER, SUPERINTENDENT OF POLICE AND OTHER DISTRICT OFFICERS FOR THEIR RESIDENCES AS WELL AS FOR THEIR OFFICES, WHICH THEY DID NOT WANT TO GIVE UP. THE HON'BLE SUPREME COURT AWARDED THE COST OF RS.5 LACS BY HOLDING THAT SINCE THE APPELLANTS HAVE RETAINED THE POSSESSION OF THE PROPERTIES ILLEGALLY AND IN A HIGH HANDED MANNER FOR 32 YEARS, THE APPEAL IS DISM ISSED WITH COSTS AND AWARDED THE COSTS OF RS.5 LACS. IN OUR OPINION, THE DECISION IN THE CASE OF RAJA MOHAMMED AMIR MOHAMMAD KHAN (SUPRA) IS NOT HELPFUL TO THE ASSESSEE AS THE FACTS ARE TOTALLY DIFFERENT WHICH ARE NARRATED HERE - IN - ABOVE. T HERE IS NO MERI T IN THE SUBMISSION OF THE LEARNED COUNSEL THAT THE SAID DECISION SUPPORT THE ASSESSEES CASE. 10 . WE HAVE ALSO CONSIDERED THE OTHER DECISION S RELIED ON BY THE LEARNED COUNSEL . I N OUR OPINION , THE PRESENT APPEALS FILED BY THE 6 ITA NOS. 2516 & 2517 /PN/2012 & CO NOS. 39 & 40 /PN/2013, VYAS REALTIES PVT. LTD., PUNE REVENUE CANNOT BE SAID TO BE FRIVOLOUS IN NATURE AS ADMITTEDLY THE DECISION /ORDERS OF THE TRIBUNAL WAS CARRIED BY WAY OF APPEAL S BEFORE THE HON'BLE HIGH COURT OF BOMBAY. WE DO NOT FIND ANY REASON TO AWARD COST TO THE ASSESSEE U/S. 254(2B) OF THE ACT . 11. IN THE RESULT, BOTH THE APPEALS AS WELL AS BOTH THE CROSS OBJECTIONS ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 29 - 1 1 - 2013 . SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATE D : 29 TH NOVEMBER, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - III, PUNE 4 THE CIT - III, PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE