Intimate Fashions (India) Pvt. Ltd., Guduvancherry V. ACIT, CHENNAI

ITA 1257/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96198 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 01-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-05-2015
• Court: TRIBUNAL
• Department Lawyers: JOE SEBASTIANCIT
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , ! , ' #$ % , & ' BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.1257 /MDS./2015 ( / ASSESSMENT YEAR :2008-09) M/S.INTIMATE FASHIONS (INDIA) PVT. LTD., 517-519, TIRUPPORUR KOTTAMEDU HIGH ROAD, NANDHIVARAM VILLAGE, GUDUVANCHERI 603 202. KANCHIPURAM DISTRICT. VS. ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-II(3), NUNGAMBAKKAM, CHENNAI-34. PAN AAACI 2706 C ( () / APPELLANT ) ( %*() / RESPONDENT ) / APPELLANT BY : MR.S.P.CHIDAMBARAM,ADVOCATE / RESPONDENT BY : MR.JOE SEBASTIAN,CIT, D.R / DATE OF HEARING : 01.10.2015 /DATE OF PRONOUNCEMENT : 09.10.2015 + / O R D E R PER A.MOHAN ALANKAMONY , ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-6, CHENNA I DATED ITA NO.1257 /MDS/2015 2 28.01.2015 IN ITA NO.1540/CIT(A)-62013-14 PASSED U NDER SEC.143(3) READ WITH SECTION 144(C) & SEC. 250 OF THE ACT. 2. THE ASSESSEE HAS RAISED SIX ELABORATE GROUNDS I N ITS APPEAL, HOWEVER THE CRUX OF THE ISSUE IS THAT THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE LD. CIT (A), WHO HAD DISMISSED THE APPEAL AS NON- MAINTAINABLE FOR NOT FILING THE FINAL ASSESSMENT OR DER U/S.143(3) R.W.S 144C(13) OF THE ACT. BUT HAD FILED ONLY DRAFT ASSES SMENT ORDER PASSED U/S.143(3) R.W.S 144C(I) OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A DOMESTIC COMPANY, FILED ITS RETURN OF INCOME ELECTRONICALLY ON 19.09.2008 FOR THE ASSESSMENT YEAR 2008-09 DISCLOSING INCOME OF ` 57,65,880/-. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY UN DER CASS (COMPUTER ASSISTED SELECTIVE SCRUTINY) AND THE CASE WAS REFERRED TO THE LD.TPO, SINCE THERE WERE INTERNATIONAL TRANSACT IONS INVOLVED IN THIS CASE. THE LD. AO ISSUED A DRAFT ASSESSMENT OR DER U/S.143(3) R.W.S 144C(I) OF THE ACT ON 20.12.2011 BASED ON THE ORDER OF THE TPO DATED 28.10.2011. AGGRIEVED WITH THE DRAFT ASSESSM ENT ORDER, THE ITA NO.1257 /MDS/2015 3 ASSESSEE FILED AN APPEAL BEFORE DRP, CHENNAI, WHO D ISMISSED THE APPEAL AS BARRED BY LIMITATION. THEREAFTER, THE LD . ASSESSING OFFICER COMPLETED THE FINAL ASSESSMENT U/S.143(3) R.W.S 144 C(13) ON 15.06.2012 WHEREIN THE LD. ASSESSING OFFICER MADE C ERTAIN ADDITIONS. 3.1 AGGRIEVED WITH THE FINAL ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). THE OBS ERVATIONS OF THE LD. CIT(A) ARE AS UNDER:- 4.0 DECISION: AS COULD BE SEEN FROM THE FORM NO.3 5 FILED BY THE ASSESSEE, THE ORDER WHICH IS APPEALED AGAINST IS THE ORDER PASSED U/S. 143(3) R.W.S. 144C(13). THE COPY OF ORDER ENCLOSED ALONG WITH THE SAID FORM NO.35 IS TH E DRAIT ORDER ISSUED BY THE ASSESSING OFFICER U/S.143(3) R.W.S.144C(1) DATED 20 .12.2011. AS PER THE PROVISIONS OF THE ACT, THE ASSESSEE CANN OT FILE ANY APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AGAINST THE DR AFT ORDER ISSUED U/S. 143(3) R.W.S. 144C(1) OF THE ACT, IF THE ASSESSEE HAS ANY OBJECTI ONS, HE CAN FILE HIS OBJECTIONS BEFORE THE DISPUTE RESOLUTION PANEL (DRP) AGAINST SUCH DRA FT ORDERS. HOWEVER, THE ASSESSEE IN THE PRESENT CASE, FILED AN APPEALS AGAINST THE DRA FT ORDER ISSUED BY THE ASSESSING OFFICER U/SA43(3) R.W.S.144C(L) DATED 20-12.2011 BE FORE THE UNDERSIGNED. SUCH APPEALS ARE NOT MAINTAINABLE. HENCE THE ASSESSEE, VIDE ORDE R SHEET NOTING DATED 06.01.20 15, WAS INFORMED AND SHOW-CAUSED AS TO WHY ITS APPEAL F ILED AGAINST THE ABOVE DRAFT ORDER SHOULD NOT BE REJECTED AND DISMISSED. IN RESPONSE T HE ASSESSEE, VIDE ITS LETTER DATED 28.01.2015, EXPLAINED THAT THE APPEAL FILED WAS AGA INST THE REGULAR ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S.1 44(1) OF THE ACT DATED 15.06.2012. HOWEVER, WHILE FILING THE APPEALS, THE DRAFT ORDE R ISSUED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S. 144C(1) DATED 20-12-2011 WAS ERR ONEOUSLY ENCLOSED ALONG WITH THE FORM NO.35, INSTEAD OF THE REGULAR ASSESSMENT ORDE R DATED 15.06.2012. HENCE THE ITA NO.1257 /MDS/2015 4 ASSESSEE CLAIMED THAT THE MISTAKE MAY BE CONDONED A ND THE APPEALS FILED MAY BE CONSIDERED AS VALID. I HAVE CONSIDERED THE ASSESSEES SUBMISSIONS. IT IS AN ADMITTED FACT THAT WHAT WAS ENCLOSED ALONG WITH THE SAID FORM NO.35 IS THE DRA FT ORDER ISSUED BY THE ASSESSING OFFICER U/S.143(3) R.W.S.144C(1) DATED 20 -12.2011. FURTHER, THE ASSESSEE IN ITS FORM NO.35 HAS MENTIONED THAT THE ORDER APPEALED AG AINST WAS THE ORDER U/S. 143(3) R.W.S. 144C(13). THE DATE WAS NOT MENTIONED. BUT T HE COPY OF THE ORDER (WHICH IS A CERTIFIED COPY BY THE ASSESSEE) ENCLOSED ALONG WIT H THE FORM NO.35 IS THE DRAFT ORDER ISSUED BY THE ASSESSING OFFICER U/ S.143(3) R.W.S. 144C(1) DATED 20.12.2011. EVEN NOW, WHEN THE ABOVE LACUNA OR THE ERROR WAS CO MMUNICATED TO THE ASSESSEE, THE ASSESSEE HAS NOT SUBMITTED THE COPY OF THE FINAL AS SESSMENT ORDER PASSED BY THE ASSESSEE, WHICH THE ASSESSEE CLAIMS TO BE THE ACTUA L ORDER WHICH IS ACTUALLY APPEALED AGAINST. THUS, THE ASSESSEE FILED THE PRESENT APPEALS AGAINS T A DRAFT ORDER ISSUED BY THE ASSESSING OFFICER U/S.143(3) R.W.S.144C(1) DATED 20 -12-2011. AS MENTIONED ABOVE, NO APPEALS CAN BE FILED BEFORE THE COMMISSIONER OF INC OME TAX (APPEALS) AGAINST A DRAFT ORDER ISSUED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S. 144C(L).OF THE ACT. THEREFORE THE PRESENT APPEALS IS NOT A MAINTAINABLE APPEALS A ND HENCE THE ASSESSEE& APPEALS IS REJECTED AND STANDS DISMISSED . 4. AT THE OUTSET, LD. A.R. SUBMITTED BEFORE US THA T THE LD. CIT (A) HAD DISMISSED THE APPEAL AS NOT MAINTAINABLE FOR NO T FILING THE FINAL ASSESSMENT ORDER PASSED U/S.143(3) R.W.S 144C(13) O F THE ACT WITHOUT AFFORDING SUFFICIENT OPPORTUNITY TO THE ASS ESSEE OF BEING HEARD AND NOT GRANTING AN OPPORTUNITY FOR CURING THE DEFE CT OF FILING THE FINAL ASSESSMENT ORDER WHICH IS GROSSLY IN VIOLATION OF P RINCIPLE OF NATURAL ITA NO.1257 /MDS/2015 5 JUSTICE. HE THEREFORE PLEADED THAT THE APPEAL MAY B E REMITTED BACK TO THE FILE OF THE LD. CIT (A) TO CONSIDER THE APPEAL AFRESH AND TO PASS APPROPRIATE ORDER AFTER GIVING SUFFICIENT OPPORTUNI TY TO THE ASSESSEE OF BEING HEARD AND CURING THE DEFEAT. LD. D.R STOUTLY OPPOSED TO THE SUBMISSIONS OF THE LD. A.R AND PLEADED THAT THE LD. CIT(A) HAD DECIDED THE CASE ON THE BASIS OF THE MATERIALS AVAI LABLE ON RECORD AND HENCE THE APPEAL NEED NOT BE REMITTED BACK TO T HE LD.CIT(A), INSTEAD THE SAME MAY BE HEARD BY THE BENCH AND DISP OSED OFF ON MERITS. 5. AFTER HEARING BOTH SIDES AND PERUSING THE MATER IALS ON RECORDS AND THE ORDER PASSED BY THE LD. CIT (A), WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT (A) OUGHT TO HAVE GRANTED SUF FICIENT OPPORTUNITY TO THE ASSESSEE FOR CURING THE DEFECT OF FILING THE FINAL ASSESSMENT ORDER. THEREFORE IN THE INTEREST OF JUSTICE WE REMI T BACK THE MATTER TO THE FILE OF LD. CIT (A) FOR DENOVO CONSIDERATION AN D ALSO DIRECT THE LD. CIT (A) TO ALLOW THE ASSESSEE TO CURE THE DEFECT BY ALLOWING HIM TO FILE THE FINAL ASSESSMENT ORDER PASSED U/S.143(3) R.W.S 144C(13) OF THE ACT AND ANY OTHER RELEVANT MATERIALS TO DECIDE THE CASE ON MERITS. ITA NO.1257 /MDS/2015 6 HOWEVER, WE ALSO CAUTION THE ASSESSEE TO CO-OPERATE WITH THE REVENUE IN THEIR PROCEEDINGS FAILING WHICH THE LD. CIT (A) SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER ON MERIT AND LAW WITHOUT FURTHER GIVING ANY OPPORTUNITY TO THE ASSESSEE OF BEING HEA RD. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES AS INDICATED HEREIN ABOVE. ORDER PRONOUNCED ON 9 TH OCTOBER,2015 AT CHENNAI. SD/- SD/- ( ' #$ % ) ((CHALLA NAGENDRA PRASAD) ( . ) (A.MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 9 TH OCTOBER, 2015. K S SUNDARAM. !'## $%#&% /COPY TO: # 1. /APPELLANT 2. /RESPONDENT 3. # '#() /CIT(A) 4. # ' /CIT 5. %*+# , /DR 6. +-#. /GF