PRIYANKA JAIN, BHILAI V. PRINCIPAL COMMISSIONER OF INCOME TAX , RANGE- RAIPUR

ITA 140/RPR/2024

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 4338 (ITAT-RAIPUR)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-08-2024
• Assessment Year: 2018-2019
• Appeal Filed On: 03-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.L.ANURAGI
• Assessee Lawyers: MOOLCHAND JAIN
• Keywords: Set aside; Opportunity of being heard; Bogus purchase; Period of limitation; Reopening of assessment; Assessment record; Revision of order; Bogus
• Section: 147; 148; 142(1); 154; 263

Judgement Text

आयकर अपीलीय अिधकरण, रायपुर Ɋायपीठ, रायपुर IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR ŵी रिवश सूद, Ɋाियक सद˟ एवं ŵी अŜण खोड़िपया, लेखा सद˟ के समƗ । BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM (ITA No. 140/RPR/2024) (Assessment Year: 2018-19) Prinyanka Jain, 59, Old Nehru Nagar (East), Bhilai, Durg, C.G., 490020 V s Principal Commissioner of Income, Raipur-1, Raipur PAN: JBPP05226E (अपीलाथŎ/Appellant) . . (ŮȑथŎ / Respondent) िनधाŊįरती की ओर से /Assessee by : Shri Moolchand Jain, Adv. राजˢ की ओर से /Revenue by : Shri S. L. Anuragi, CIT-DR सुनवाई की तारीख/ Date of Hearing : 28.08.2024 घोषणा की तारीख/Date of Pronouncement : 05.09.2024 आदेश / O R D E R Per Arun Khodpia, AM: The captioned appeal is filed by the assessee against the order of Principal Commissioner of Income, Raipur-1, [in short “Ld. PCIT”], u/s 263 of the Income Tax Act, 1961 (in short “The Act”) for the Assessment Year 2018-19, dated 23.03.2024, which in turn arises for revision of the Assessment order u/s 147 r.w.s. 144B of the Act, passed by Addl. / Joint/ Deputy/ Asst. Commissioner of Income Tax, NFAC, Delhi, (in short “Ld. AR”) dated 29.03.2022. 2 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 2. The grounds of appeal raised by the assessee are as under: 1. That the learned Pr. C.I.T., Raipur-1 has erred in law and on facts in invoking the provisions of Section 263 of the J.T. Act in so far as the order passed by the A.O. is not erroneous and Section 263 cannot be invoked on the vague ground of lack of proper enquiry without pointing out as to what enquiry ought to have been made by the A.O. 2. That the learned Pr. C.I.T., Raipur-1 has erred in setting aside the assessment order ,u/s. 263 without appreciating the evidences placed on record, and where the assessee had produced relevant material and offered explanation in pursuance of the notice u/s. 142(1) as well as u/s. 142(2) and after considering the material and explanation, the I.T.O. has come to a definite conclusion, merely because the A.O. has taken a particular view with which the Commissioner did not agree, cannot form the basis of an action u/s. 263 of the I.T. Act. that the learned Pr. CIT Raipur-l has not taken into cognizance of the technical error in uploading the communication on the portal of the department which is most arbitrary and unjust. 3. That the learned Pr. CIT, Raipur-l has not taken into consideration various case laws mentioning that revision proceeding is void ab-initio and cannot be invoked, which is bad in law. 4. That the appellant craves to add, amend, alter or rescind the grounds of appeal at the time of hearing. 3. The Brief facts of the case culled out are that the assessee is carrying on the business of trading of lead ingot and has filed her return of income for AY 2018- 19 on 01.10.2018, declaring total income of Rs. 38,31,830/-. As per information available, the assessee had made bogus purchases with fake invoices without physical receipt of goods from M/s SM Enterprises during the period December 2017 to March 2018, for an amount of Rs. 76,10,450/-. The case of the assessee was taken up for reopening assessment u/s 147. Notice u/s 148 was issued on 3 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 30.12.2020, in response to which ROI was filed on 23.01.2021. Statutory notices u/s 143(2), 142(1) etc. were issued. During the course of assessment proceedings, Ld. AO have observed that the purchase transaction of the assessee was duly recorded in the stock register, evidence furnished by the assessee for transportation of goods and all the payments were reflected in the bank statement, therefore, after his satisfaction, the assessment was completed by accepting the return of income disclosed by the assessee. 4. Subsequently, the case of the assessee was picked u/s 263 for the reason that order passed u/s 147 r.w.s 144B by the Ld. AO was erroneous in so far as prejudicial to the interest of revenue. Accordingly, the matter was set aside to the file of Ld. AO with the direction to pass a fresh assessment order in a speaking manner after making all necessaries inquiries, proving due an adequate opportunity of being heard to the assessee. 5. Aggrieved with the order of Ld. PCIT u/s 263 dated 23.03.2024, the assessee preferred the present appeal before us. Raising the ground assailed hereinabove. 6. At the outset, Ld. AR, Shri Moolchand Jain, Advocate (in short “Ld. AR”), making the pleading on behalf of the assessee have raised the issue that the 4 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 revision proceedings u/s 263 have been initiated by the Ld. PCIT, Raipur by issuance of show cause notice (SCN) dated 14.03.2014, whereas the proceedings u/s 148A are already pending on the assessee as per notice under clause (b) of section 148A of the Act dated 15.02.2024 was issued by the ACIT, Circle1(1), Bhilai. It is further submitted that there was no reference to the notice issued u/s 148A(b) nor any details regarding disposal of the proceeding’s u/s 148A in the order u/s 263 are discerning. Ld. AR further argued that as per settled position of law during the pendency of proceedings regarding assessment of any particular assessment year of the assessee, it is not permissible on the part of revenue to initiate separate proceedings on the assessee under any other provision of Income Tax Act. With the aforesaid submissions, it was the prayer that the revisionary proceedings-initiated u/s 263 are inconsistent with the settled preposition of law, therefore, the order passed by Ld. PCIT was erroneous in law and on facts, void ab initio and bad in law, thus, the same cannot sustained in the eyes of law. A written submission showing facts of the case and date of events has been furnished before us, which is extracted for the sake of clarity and facts: 5 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 6 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 7 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 7. Contradicting the aforesaid submission of the assessee, Ld. CIT DR vehemently placed reliance on the order of Ld. PCIT u/s 263 of the Act and requested to uphold the same. 8. We have considered the rival submissions, perused the material available on record and the order of revenue authorities. For verification of contention raised by the Ld. AR that reopening assessment proceedings u/s 148A are pending at the time when revisionary proceedings u/s 263 are invoked by the Ld. PCIT, assessment records are called or and produced before us. On perusal of assessment record, it is emanating that the order under clause (d) of section 148A of the Act was passed by the Ld. ACIT, Circle-1(1), Bhilai dated 23.03.2024 and the case of assessee was considered as not fit for reopening of assessment for the AY 2018-19. Copy of the order is extracted as under: 8 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 9 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 10 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 11 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 12 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 \ 13 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 14 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 15 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 16 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 9. On perusal of the aforesaid order passed by the Asstt. Commissioner of Income Tax, Circle-1(1), Bhilai, referring to the last para of the said order it is an admitted position that the proceedings u/s 148A are initiated on the assessee vide notice issued by JAO u/s 148A(b) dated 08.02.2024 to reopen the assessment for AY 2018-19 are dropped through the aforesaid order dated 23.03.2024. It is also 17 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 a fact on record that a show cause notice u/s 263 for revision of an order passed u/s 147 r.w.s. 144B for AY 2018-19 was issued on 14.03.2024, such action invoking provisions of section 263 are indeed initiated while the proceedings u/s 148A are still live i.e., pending to be culminated against the assessee which were finally dropped on 23.03.2024. In totality of facts and circumstances, as described hereinabove the proceedings u/s 263 on the assessee for same AY i.e., 2018-19 are initiated before the completion of other proceedings for the relevant AY are pending with the AO u/s 148A. The question now to be answered before us is that, “whether during the pendency of proceedings under one section of the Act, can the proceedings under any other section for same AY, involving same issue in both the proceedings be initiated lawfully?”. In our considered opinion as per settled mandate of law, two simultaneous proceedings cannot be activated on an assessee by the revenue through different authorities at the same time for same assessment year and same issue. If certain proceedings are required to be lawfully initiated, then the proceedings already in progress have to be culminated / disposed of as per law before initiation of new proceedings in a situation refer to herein. Our decision is supported by the ratio of law laid down by Hon’ble Apex Court in the case of S.M. Oversease Pvt. Ltd vs. CIT (2023) 450 ITR 1 (SC) dated 07.12.2022, wherein Hon’ble Apex Court in a similar situation, deliberating upon proceedings for reopening assessment u/s 147/ 148 initiated against the assessee by the revenue while proceedings u/s 154 are pending, have held as under: 18 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 “ 4. In that view of the matter, during the pendency of proceedings u/s 154 of the Act, it was not permissible on the part of the revenue to initiate proceedings u/s 147 / 148 of the Act pending the proceedings u/s 154 of the Act. The High Court has erred in presuming and observing that the proceedings u/s 154 were invalid because the same were beyond the period of limitation.” 10. In view of aforesaid decision by Hon’ble Apex Court in the case of S. M. Overseas Pvt. Ltd. (supra), drawing support of same analogy in the present case, wherein the proceedings u/s 263 were initiated on 14.03.2024, whereas the proceedings u/s 148A on the same assessee, for the same AY involving the same issue was pending at that time and date, which was dropped by the Ld. Jurisdictional Assessing Officer subsequently vide order dated 23.03.2024 u/s 148A(d), we find substance in the pleadings of Ld. AR, thus, the proceedings initiated u/s 263 are found to be without valid jurisdiction of law and are liable to be quashed. In result, the order passed u/s 263 dated 23.03.2024 passed by initiating the proceedings in violation of settled principle of law referred to (supra), was void ab initio and has no standing the eyes of law, thus, the same stands quashed. 11. Since the impugned order u/s 263 has been rendered as bad in law and quashed by us in terms of our aforesaid observation, the other contentions raised 19 ITA No. 140/RPR/2024 Priyanka Jain vs. PCT, Raipur-1 by the assessee under aforesaid grounds of appeal need not be adjudicated separately, thus, are left open. 12. Resultantly, the appeal of the assessee is allowed in terms of our aforesaid observations. Order pronounced in the open court on 05/09/2024. Sd/- (RAVISH SOOD) Sd/- (ARUN KHODPIA) Ɋाियक सद˟ / JUDICIAL MEMBER लेखा सद˟ / ACCOUNTANT MEMBER रायपुर/Raipur; िदनांक Dated 05/09/2024 Vaibhav Shrivastav आदेश की Ůितिलिप अŤेिषत/Copy of the Order forwarded to : आदेशानुसार/ BY ORDER, (Senior Private Secretory) आयकर अपीलीय अिधकरण, रायपुर/ITAT, Raipur 1. अपीलाथŎ / The Appellant- Priyanka Jain 2. ŮȑथŎ / The Respondent-PCIT-Raipur-1 3. आयकर आयुƅ(अपील) / The CIT(A), 4. The Pr. CIT-1, Raipur (C.G.) 5. िवभागीय Ůितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur 6. गाडŊ फाईल / Guard file. // स×याǒपत Ĥित True copy //