ITO, Ward 1(3), Pune V. Shri Dnyaneshwar M. Laygude, Pune

ITA 1052/PUN/2013

• Counselvise Citation: 105224514 RSA 2013
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 09-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Keywords: Transfer pricing
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.1052/PN/2013 (A.Y: 2005-06) ITO (CIB-2), PUNE APPELLANT VS. SHRI DNYANESHWAR M. LAYGUDE S.NO.14/4, GANESH NAGAR, SINHAGAD ROAD, DHAYARI, PUNE - 411041 PAN: ABZPL9711B RESPONDENT APPELLANT BY : SHRI P.L.PA THADE RESPONDENT BY : NONE DATE OF HEARING: 30.04.2014 DATE OF ORDER : 30.04.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-CENTRAL, [I N SHORT CIT(A)] PUNE, DATED 27.02.2013 FOR A.Y. 2005-06 ON THE FOLLOWING GROUNDS. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX(APPEALS) IS CONTRARY TO LAW AND TO THE FACTS AN D CIRCUMSTANCES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) GR OSSLY ERRED IN ANNULLING THE ORDER MADE BY THE INCOME-TAX OFFICER, CIB-2, PUNE U/S.144 OF THE INCOME-TAX ACT, 1961 INS TEAD OF CONFIRMING THE SAME. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) GR OSSLY ERRED IN ANNULLING THE ASSESSMENT ON THE SOLE GROUN D THAT THE ASSESSEE WAS NOT A NON-EXISTING ASSESSEE (I.E. ONE WHO HAD NEVER FILED HIS RETURN EARLIER), AND WITHOUT APPREC IATING THAT THE ASSESSEE NEVER BROUGHT THE ABOVE FACTS? TO THE NOTI CE OF THE 2 INCOME-TAX OFFICER, CIB-2, PUNE, NOR QUESTIONED THE JURISDICTION EXERCISED BY THE LATTER AS PROVIDED IN SECTION 124( 3)(A) OF THE INCOME-TAX ACT, 1961. 4. IN THE CIRCUMSTANCES MENTIONED SUPRA, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) GROSSLY ERRED IN ENTERTAINING THE APPEAL FILED BY THE ASSESSEE THERE BY QUESTIONING THE JURISDICTION EXERCISED BY THE INCOM E-TAX OFFICER, CIB-2, PUNE. 5. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) GRO SSLY ERRED IN FAILING TO APPRECIATE THAT EVEN THOUGH THE INCOME-TAX OFFICER, WARD-L(3), PUNE HAD JURISDICTION OVER THE ASSESSEE'S CASE, THE INCOME-TAX OFFICER, CIB-2, PUNE ALSO HAD CONCURRENT JURISDICTION OVER THE ASSESSEE'S CASE AS PER THE OR DER U/S.120 PASSED BY THE CHIEF CIT, PUNE DATED 01.08.2007. 6. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF THE HEARING, THE ORDER OF THE ID. COMMISSIO NER OF INCOME-TAX(APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY OR ALL THE GROUNDS OF APPEAL. 2. THE ASSESSEE IS AN INDIVIDUAL. AS PER INFORMATI ON RECEIVED VIA ANNUAL INFORMATION RETURN U/S.285BA OF THE ACT DURING THE RELEVANT PREVIOUS YEAR, THE ASSESSEE DEPOSITED 16,57,850/- IN CASH IN HIS SAVINGS ACCOUNT. ON THE BASIS OF THIS INFORMATION, A NOTICE U/S.142(1) OF THE ACT WAS ISSUED TO THE ASSE SSEE BY THE CONCERNED ASSESSING OFFICER CALLING FOR HIS RETURN FOR A.Y. 2005- 06. AS THE ASSESSEE FAILED TO COMPLY, THE ASSESSIN G OFFICER PASSED AN EX-PARTE ORDER U/S.144 TREATING THE ENTIR E DEPOSIT OF 16,57,850/- AS UNEXPLAINED. 3. THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AU THORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE, WHEREIN, THE CIT(A) DELETED THE PENALTY B Y OBSERVING AS UNDER: 5. I HAVE CAREFULLY PERUSED THE IMPUGNED ASSESSMEN T ORDER, THE STATEMENT OF FACTS AND WRITTEN SUBMISSIO NS 3 MADE ON BEHALF OF THE APPELLANT, AS WELL AS THE VER BAL EXPLANATIONS PROVIDED BY THE LD. AR. 6. PERUSAL OF MATERIAL AVAILABLE ON RECORD REVEALS THAT THE APPELLANT WAS ALREADY ASSESSED TO TAX WITH ITO WAR D 1(3), PUNE WITH PAN. ABZPL9711B. IN RESPECT OF THE PER SONS WHOSE NAMES APPEAR IN ANNUAL INFORMATION RETURN, CC IT PUNE ISSUED JURISDICTION ORDERS U/S.120 OF IT. ACT ON 1/8/2007. THE RELEVANT PORTION OF ORDER IS REPRODUC ED BELOW :- 'ORDER UNDER SECTION 120 OF THE INCOME TAX ACT. 1961 IN EXERCISE OF POWERS CONFERRED BY SECTION 120 OF T HE INCOME TAX ACT AND INSTRUCTION NO. 6/2006 DATED 1ST AUGUST , 2006, I HEREBY ORDER THAT THE ASSESSING OFFICERS WO RKING UNDER THE CONTROL OF COMMISSIONER OF INCOME TAX (CI B), PUNE, AS MENTIONED BELOW SHALL ACT AS WITH ' DESIGN ATED ASSESSING OFFICERS' (DAOS) AND SHALL EXERCISE CONCU RRENT JURISDICTION WITH RESPECT TO THE ASSESSEE FALLING W ITHIN THE JURISDICTION OF COMMISSIONERS OF INCOME TAX I, II, III, IV, V PUNE COMMISSIONERS OF INCOME TAX COMMISSIONER OF INCOME TAX-I AND II, NASIK; COMMISSIONER OF INCOME TAX AURANGABAD; COMMISSIONER OF INCOME TAX-1 AND II & I II, THANE, COMMISSIONER OF INCOME TAX (CENTRAL), PUNE A ND DIRECTOR OF INCOME TAX (TRANSFER PRICING), PUNE WHO SE NAMES APPEAR IN ANNUAL INFORMATION RETURN (ARI) DAT A RELATING TO PUNE REGION AND WHOSE PAN ARE NOT MENTI ONED AIR DATA. S.NO ASSESSING OFFICER 1. INCOME TAX OFFICER (HQ)(CIB), PUNE 2. INCOME TAX OFFICER (CIB)-3, PUNE 2. THE DAOS SHALL HAVE CONCURRENT JURISDICTION OVE R THE CASES FOR ISSUING NOTICES U/S 142(1). IN CASE OF NON- EXISTING ASSESSEES (WHO HAVE NEVER FILED A RETURN O F INCOME EARLIER) THE DAO SHALL ASSESS THE CASE U/S 143(3) O R 144, AS THE CASE MAY HE. IN ALL OTHER CASES THE DAOS SHALL TRANSFER THE AIR INFORMATION TO THE JURISDICTIONAL ASSESSING OFFICERS (JAO). 3. THIS ORDER IS WITH IMMEDIATE EFFECT AND UNTIL FU RTHER ORDER. SD/- CHIEF COMMISSIONER OF INCOME TAX, PUNE.' 4 7. IN VIEW OF THE AFOREMENTIONED JURISDICTION ORDER DT.1/8/2007, ITO CIB-2, PUNE DID NOT HAVE JURISDICT ION TO ASSESS THE APPELLANT U/S.143(3) OR 144 OF I.T. ACT AS THE APPELLANT WAS NOT A NON-EXISTING ASSESSEE (I.E., ON E WHO HAS NEVER FILED A RETURN OF INCOME EARLIER). UNDER THE CIRCUMSTANCES, ITO CIB-2 PASSED ORDER U/S. 144 OF I .T. ACT DT. 24/12/2007 WAS WITHOUT JURISDICTION AND, THEREF ORE, THE ASSESSMENT IS HEREBY ANNULLED. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF RE VENUE AS CONTENDED IN THE GROUNDS OF APPEAL AND REQUESTED TO SET ASIDE THE ORDER OF CIT(A) AND THAT OF ASSESSING OFFICER B E RESTORED. NONE HAVE APPEARED ON BEHALF OF ASSESSEE. SO, THE APPEAL IS BEING DECIDED ON THE BASIS OF ARGUMENTS OF LEARNED DEPARTMENTAL REPRESENTATIVE AND MATERIAL ON RECORD. 4. AFTER GOING THROUGH THE ARGUMENT OF LEARNED DEPA RTMENTAL REPRESENTATIVE AND MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE WAS ALREADY ASSESSED TO TAX WITH ITO, WARD 1(3), PU NE WITH PAN NO.ABZPL9711B. IN RESPECT OF OTHER PERSONS WHOSE N AMES APPEARED IN ANNUAL INFORMATION RETURN, CCIT, PUNE I SSUED JURISDICTION ORDER U/S.120 OF I.T. ACT AS REPRODUCE D ABOVE. IN VIEW OF AFORESAID JURISDICTION ORDER DATED 01.08.20 07, ITO, CIB-2, PUNE DID NOT HAVE JURISDICTION TO ASSESS THE ASSESS EE U/S.143(3) OR 144 OF THE ACT AS THE ASSESSEE WAS NOT A NON-EXI STING ASSESSEE I.E. ONE WHO HAS NEVER FILED A RETURN OF INCOME EAR LIER. UNDER THE CIRCUMSTANCES, THE ORDER PASSED BY THE CONCERNED AS SESSING OFFICER U/S.144 OF THE ACT DATED 24.12.2007 WAS RIG HTLY FOUND BY CIT(A) WITHOUT JURISDICTION AND ACCORDINGLY, THE CI T(A) WAS JUSTIFIED IN ANNULLING THE ASSESSMENT. THIS REASON ED FINDING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPH OLD THE SAME. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. 5 PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 30 TH OF APRIL, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 30 TH APRIL, 2014 GCVSR COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-I, NASHIK 4) THE CIT-I, NASHIK 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE