The DCITCrcle-1(2), Baroda V. India Medtronics Pvt.Ltd., Baroda

ITA 135/AHD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6040 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-07-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 08-01-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Assessee Lawyers: S N SOPARKAR SRAR; S R SHAH
• Keywords: Reopening of assessment
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD B BENCH BEFORE SHRI G.D. AGARWAL, HONBLE VICE-PRESIDENT (AZ) AND SHRI D.K. TYAGI, HONBLE JUDICIAL MEMBER ITA NO.135 & 243/AHD/2008 ASSESSMENT YEAR:2002-03 DATE OF HEARING:19.7.11 DRAFTED:27.7.11 ACIT, CIR-1(2), BARODA M/S INDIA MEDTRONIC PRIVATE LIMITED, 919/2, GIDC, INDUSTRIAL ESTATE, MAKARPURA, BARODA 390 010 PAN NO.AAACJ4227Q V/S . V/S . M/S INDIA MEDTRONIC PVT. LTD. 919/2 GIDC INDS. ESTATE, MAKARPURA, BARODA ACIT, CIRCLE-1(2), BARODA (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI S.N.SOPARKAR, SR-AR & SHRI S.R. SHAH, AR REVENUE BY:- SHRI ALOK JOHRI, CIT-DR O R D E R PER D.K. TYAGI, JUDICIAL MEMBER:- THESE ARE CROSS-APPEALS FILED BY REVENUE AND ASSES SEE AGAINST THE COMMON ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS )-VI, BARODA DATED 25- 10-2007 FOR ASSESSMENT ORDER 2002-03. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E-COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND IMPORT OF VARI OUS MEDICAL DEVICES FROM MEDTRONIC USA GROUP OF COMPANIES ABROAD AND DISTRIB UTION OF THESE PRODUCTS IN INDIA THROUGH WAREHOUSES/DISTRIBUTORS AT VARIOUS LOCATIONS. THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME DECLARING TOTAL INCOME OF RS.5,23,71,880/- ITA NO.135 & 243/AHD.2008 A.Y. 2002-03 ACIT CIR-1(2) BRD V. M/S. INDIA MEDDTRONIC P. LTD. PAGE 2 AND THE SAME WAS PROCESSED U/S.143(1)(A) OF THE INC OME-TAX ACT, 1961 EXCEPTING THE RETURN OF INCOME AND THE REFUNDS OF R S.12,85,215/- WAS ALSO ISSUE. SUBSEQUENTLY, ASSESSMENT U/S.143(3) OF THE A CT WAS COMPLETED DETERMINING THE TOTAL INCOME AT RS.10,29,81,829/-. THEREAFTER NOTICE U/S.148 WAS ISSUED. THE ASSESSMENT U/S.143(3) R.W.S 147 OF THE ACT WAS COMPLETED ON A TOTAL INCOME OF RS.14,76,64,950/-. 3. IN APPEAL THE ASSESSEE CHALLENGED THE REOPENING OF ASSESSMENT BY ASSESSING OFFICER AND ALSO THE ADDITION MADE BY HIM . THE LD. CIT(APPEALS) HOWEVER CONFIRMED THE ACTION OF ASSESSING OFFICER A S FAR AS REOPENING OF ASSESSMENT U/S 147 R.W.S 148 OF THE ACT WAS CONCERN ED. HE, HOWEVER GAVE SOME RELIEF TO THE ASSESSEE IN RESPECT OF ADDITION MADE BY ASSESSING OFFICER. 4. AGGRIEVED BY THIS ORDER OF LD. CIT(APPEALS) REVE NUE HAS FILED AN APPEAL AGAINST THE RELIEF GIVEN BY LD. CIT(APPEALS) TO ASSESSEE WHILE ASSESSEE IN ITS APPEAL HAS CHALLENGED THE REOPENING OF RE-ASSESSMENT U/S.147 R.W.S. 148 OF THE ACT AND THE ADDITION SUST AINED BY LD. CIT(APPEALS). SINCE THE QUESTION OF JURISDICTION IS INVOLVED IN A SSESSEES APPEAL WE DECIDE TO HEAR THE ASSESSEES APPEAL FIRST. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORDS ON THE ISSUE OF REOPENING OF ASSESSMENT U/S. 147 R.W.S. 148 OF THE ACT WE FIND THAT HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. V ITO AND OTHERS (2003) 259 ITR 19 (SC), HAS LAID DOWN A PROCEDURE T O BE ADOPTED BY ASSESSEE AND DUTY OF ASSESSING OFFICER WHERE A NOTI CE U/S.148 OF THE INCOME- TAX ACT, 1961 HAS BEEN ISSUED BY HIM BY OBSERVING A S UNDER:- WHEN A NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961, IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICE IS TO FILE THE RETURN AND, IF HE SO DESIRES, TO SEEK REASONS FOR ISSUING THE N OTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASON ABLE TIME. ON RECEIPT OF REASONS, THE NOTICE IS ENTITLED TO FILE OBJECTIO NS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF TH E SAME BY PASSING A SPEAKING ORDER. ITA NO.135 & 243/AHD.2008 A.Y. 2002-03 ACIT CIR-1(2) BRD V. M/S. INDIA MEDDTRONIC P. LTD. PAGE 3 ON RECEIVING NOTICES UNDER SECTION 148 THE APPELLAN T FILED THE RETURNS. THE APPELLANT ALSO RECEIVED NOTICES UNDER SECTION 143(2 ) CALLING FOR FURTHER INFORMATION ON CERTAIN POINTS IN CONNECTION WITH TH E RETURNS. THEREUPON THE APPELLANT FILED WRIT PETITIONS CHALLENGING THE NOTI CES. THE HIGH COURT DISMISSED THE WRIT PETITIONS HOLDING THAT THE PETITIONS WERE PREMATURE AND THE APPELLANT COULD RAISE ITS OBJECTIONS TO THE NOTICES BY FILING REPLY TO THE NOTICES BEFORE THE ASSESSING OFFICER (SEE. E.G. [2002] 257 ITR 702). THE APPELLANT PREFERRED APPEALS AND THE SUPREME COURT DISMISSED THE APPEALS , OBSERVING THAT SINCE THE REASONS FOR REOPENING OF ASSESSMENTS UNDER SECT ION 148 HAD BEEN DISCLOSED IN RESPECT OF FIVE ASSESSMENT ORDERS, THE ASSESSING OFFICER HAD TO DISPOSE OF THE OBJECTIONS, IF FILED, BY PASSING A S PEAKING ORDER BEFORE PROCEEDING WITH THE ASSESSMENTS FOR THOSE YEARS. RESPECTFULLY FOLLOWING THIS DECISION OF HONBLE SUP REME COURT THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJ UDICATION IN THE LIGHT OF ABOVE OBSERVATION OF HONBLE APEX COURT. 6. IN VIEW OF OUR ABOVE DECISION THE OTHER GROUNDS TAKEN IN APPEAL OF ASSESSEE AND THE APPEAL OF REVENUE DO NOT REQUIRE ANY ADJUDI CATION ON OUR PART AS THE ASSESSING OFFICER WILL FIRST DISPOSE OFF OBJECTION RAISED BY THE ASSESSEE IN RESPECT OF REOPENING OF ASSESSMENT BY PASSING A SPEAKING ORDER AND AFTER THAT HE WILL PROCEED TO MAKE THE RE-ASSESSMENT IF REQUIRED. 7. IN THE RESULT, BOTH THE CROSS-APPEALS FILED BY ASSE SSEE & REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS DAY OF 28 TH JULY, 2011 SD/- SD/- ( G.D.AGARWAL ) ( D.K. TYAGI ) (VICE PRESIDENT) (JUDICIAL MEMBER) AHMEDABAD, DATED : 28/07/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 4. THE CIT CONCERNS. 2. THE REVENUE. 5. THE DR, ITAT, AHMEDABAD 3. THE CIT(APPEALS)-VI, BARODA 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD