ORBIT CONSTRUCTIONS, MUMBAI V. DCIT CEN CIR 47, MUMBAI

ITA 1458/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93107 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 11-03-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 22-02-2013
• Court: TRIBUNAL
• Department Lawyers: PRAVIN KUMAR
• Keywords: Opportunity of being heard
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C , MUMBAI BEFORE SHRI G.S. PANNU , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER , ITA NO S . 1458, 1459 & 1460 / MUM / 2013 ASSESSMENT Y EAR : 2006 - 07 M/S. ORBIT CONSTRUCTIONS 301, THE ANGEL, 2 , KRISHNA SANGHI PATH, GAMDEVI MUMBAI 400 007 PAN:AAAFO 5480 G VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 47 MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAKESH JOSHI REVENUE BY : SHRI PRAVIN KU MAR DATE OF HEARING : 17.06.2015 DATE OF ORDER : 30.06.2015 PER G.S. PANNU , A M : IN THE CAPTIONED THREE APPEALS, ASSESSEE HAS RAISED A COMMON GRIEVANCE. THE APPEAL IN ITA NO.1458/MUM/2013 FOR ASSESSMENT YEAR 2006 - 07 IS TAKEN AS THE LEAD CASE, AS THE FACTS AND CIRCUMSTANCES ARE SIMILAR IN ALL THE CAPTIONED APPEALS. 2. ITA NO. 1458/MUM/2013 IS AN APPEAL DIRECTE D AGAINST THE ORDER OF THE LD. CIT(A)[HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 27.11.2012 WHICH IN TURN HAS ARISEN FROM AN ORDER PASSED BY ASSESSING OFFICER DATED 27.12.2011 UNDER SECTION 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961, [HEREINAFTER REFERRED TO AS THE ACT] FOR ASSESSMENT YEAR 2006 - 07. ITA NOS.1458, 1459 & 1460/MUM/2013 ASSESSMENT YEAR : 2006 - 07 2 3. THE PRIM ARY CONTENTION OF THE APPELLANT - ASSESSEE IS THAT THE ASSESSING OFFICER HAS PASSED THE IMPUGNED ORDER UNDER SECTION 143(3) R.W.S. 153A OF THE ACT WITHOUT APPRECIATING THAT THE PROCEEDINGS FOR THE IMPUGNED YEAR WERE PENDING BEFORE THE INCOME TAX SETTLEMENT COMMISSION (ITSC) FOR FINAL DISPOSAL AND THA T THE OFFER BEFORE THE ITSC INCLUDED ALL INCOMES OFFERED UPTO THE LAST DATE OF HEARING BEFORE THE ITSC ON 09.11.2011. 4. THE LD.CIT(DR) HAS ADMITTED THAT THE ASSESSING OFFICER HAS MERELY TAKEN COGNIZANCE OF THE TOTAL INCOME AS DISCLOSED BEFORE THE ITSC F OR THE PURPOSES OF COMPUTATION OF INCO M ES IN THE IMPUGNED ASSESSMENT ORDERS FOR ALL THE THREE CAPTIONED ASSESSMENT YEAR S. THE LD. CIT(DR) HAS REFERRED TO THE FINDING OF THE CIT(A) TO THE EFFECT THAT THE METHODOLOGY ADOPTED BY THE ASSESSING OFFICER DOES NO T AMOUNT TO MAKING ANY ADDITIONS TO THE RETURNED INCOME. THE SAID POSITION IS NOT DISPUTED BY THE APPELLANT, BUT IT IS SUBMITTED THAT THE MATTER BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTIONS TO ASSESS THE INCOME OF THE ASSESSEE IN A CCORDANCE WITH THE FINAL ORDER OF THE ITSC. THE LD. CIT(DR) HAS NOT OPPOSED THE AFORESAID PLEA OF THE APPELLANT. 5. IT IS QUITE WELL UNDERSTOOD THAT THE ITSC HAS EXCLUSIVE JURISDICTION OVER THE PROCEEDINGS IN THE COURSE OF WHICH CERTAIN INCOMES HAVE BEEN DISCLOSED BY THE ASSESSEE; AND, THE FINAL OUTCOME OF THE PROCEEDINGS PENDING BEFORE THE ITSC AND THE INCOMES DETERMINED THEREOF WOULD HAVE TO BE STATUTORILY ADOPTED BY THE ASSESSING OFFICER FOR THE RELEVANT ASSESSMENT YEAR S. OSTENSIBLY, THE MATTER IS PEND ING BEFORE THE ITSC FOR FINAL DISPOSAL, AS CONTENDED BY THE LD. R E PRESENTATIVE FOR THE ASSESSEE BEFORE US. IN THIS BACKGROUND OF THE MATTER, THE IMPUGNED ORDER OF THE CIT(A) IS SET - ASIDE AND THE ASSESSMENT I S REMANDED BACK TO THE FILE OF ITA NOS.1458, 1459 & 1460/MUM/2013 ASSESSMENT YEAR : 2006 - 07 3 THE ASSESSING OFFI CER TO PASS A FRESH ORDER IN ACCORDANCE WITH THE AWAITED FINAL ORDER OF THE ITSC. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD, BEFORE PASSING A FRESH ORDER IN ACCORDANCE WITH LAW. THUS, ON THIS AS PECT, ASSESSEE SUCCEEDS F OR STATISTICAL PURPOSES WITH RESPECT TO GROUND OF APPEAL NOS. 1 TO 3. 6. IN SO FAR AS GROUND OF APPEAL NO. 4 AND 5 ARE CONCERNED THEY RELATE TO INITIATION OF THE PROCEEDINGS FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE CHALLENGE OF THE APPELLANT IS QUITE PRE - MATURE, AS THE PENALTY PROCEEDINGS WERE MERELY INITIATED BY THE ASSESSING OFFICER. ACCORDINGLY, THE SAID GROUNDS OF APPEAL ARE DISMISSED. 7. I N THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO. 1458/MUM/2013 FOR A SS ESSMENT YEAR 2006 - 07 IS PARTLY ALLOWED ABOVE. 8. IT WAS A COMMON GROUND BETWEEN THE PARTIES THAT THE ISSUES, FACTS AND CIRCUMSTANCES IN THE OTHER CAPTIONED APPEALS ARE SIMILAR TO THOSE CONSIDERED BY US IN THE APPEAL FOR A SSESSMENT YEAR 2006 - 07 IN THE EARL IER PARAS. THEREFORE, OUR DECISION IN THE APPEAL OF THE ASSESSEE FOR A SSESSMENT YEAR 2006 - 07 SHALL APPLY MUTATIS MUTANDIS IN THE OTHER TWO CAPTIONED APPEALS ALSO. 9. RESULTANTLY, ALL THE CAPTIONED APPEALS ARE PARTLY ALLOWED. ORDER PRONO UNCED IN THE OPE N COURT ON THIS 30 TH DAY JUNE , 2015. SD/ - SD/ - (AMIT SHUKLA) ( G.S. PANNU ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 30 .06.2015 * SKS ITA NOS.1458, 1459 & 1460/MUM/2013 ASSESSMENT YEAR : 2006 - 07 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR C BENCH // TRUE COPY // BY ORDER DY/ASSTT. REGISTRAR, IT AT, MUMBAI.