Premium Polymers Alloys Pvt.Ltd., Ahmedabad V. The ACIT.,Circle-4, Baroda

ITA 1472/AHD/2010

• Counselvise Citation: 147220514 RSA 2010
• Duration Of Justice: 3 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 04-09-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 05-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS SRDR
• Assessee Lawyers: ANIL R SHAH
• Keywords: Reopening of assessment

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ %& %& %& %& , , , , &' &' &' &' ( & ' ( & ' ( & ' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) ITA NO.1472/AHD/2010 [ASSTT.YEAR : 2003-2004] PREMIUM POLY ALLOYS P. LTD. 417/418, GIDC ESTATE WAGODIA, BARODA. PAN : AABCP 2640 P /VS. ACIT, CIR.4 BARODA. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) .% / 0 &/ ASSESSEE BY : SHRI ANIL R. SHAH ( / 0 &/ REVENUE BY : SHRI K.C. MATHEWS, SR-DR 2 / %3'/ DATE OF HEARING : 4 TH SEPTEMBER, 2013. 456 / %3'/ DATE OF PRONOUNCEMENT : 04/10/2013 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2003-2004 IS DIREC TED AGAINST THE ORDER OF THE CIT(A)-III, BARODA DATED 20.11.2009. 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1. YOUR APPELLANT SUBMITS THAT THE ASSESSING OFFICE R HAS WRONGLY INVOKED PROVISIONS U/S. 148 OF THE ACT AND REOPENING ITA NO.1472/AHD/2010 -2 THE ASSESSMENT VIDE NOTICE DATED 18-3-2008 IS BAD IN LAW AND VOID. 2. IT IS SUBMITTED THAT NO PART OF HAS ESCAPED ASS ESSMENT OR EXCESS RELIEF/ REBATE HAS BEEN GIVEN TO APPELLAN T AND ALL FACTS AND INFORMATION WAS BEFORE THE ASSESSING OFFICER WH ILE PASSING ORDER U/S.143(3) OF THE ACT, AND THERE IS NO 'NEXUS ' OF FACTS OF' THE CASE AND REASONS RECORDED FOR REOPENING THE ASS ESSMENT RESULTING INTO VERY ASSESSMENT BEING BAD IN LAW AND VOID. 3. THE ORIGINAL ORDER U/S.143(3) DATE 28-3-2006 SOU GHT TO BE RE-ASSED U/S.148 DOES NOT EXISTS IT BEING 'MERGE D' WITH THE ORDER OF CIT(A) DATED 31-1-2007 AND HENCE REOPENING OF ASSESSMENT U/S. 148 IS NOT VALID. II. ON MERITS: 1. (A) THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND IN FACT IN UPHOLDING REDUCTION OF RS.4,17,453 MADE BY THE ASSESSING OFFICER IN THE CLAIM OF U/S.80HHC MADE BY YOUR APPELLANT. (B) IT IS SUBMITTED THAT BOTH ON POINT OF LAW AND O N POINT OF FACT THE ORDER OF THE CIT(A) IS ERRONEOUS AND HE HAS WRONGLY CONFIRMED THE DISALLOWANCE/DEDUCTION OF RS.4,17,453 MADE BY THE ASSESSING OFFICER. 2. IT IS FURTHER SUBMITTED BY YOU APPELLANT THAT FO R A.Y.02- 03 ON SAME FACTS THE CLAIM OF THE APPELLANT WAS ALL OWED BY THE CITY(A) WHICH HAS BEEN ACCEPTED BY THE INCOM E- TAX DEPARTMENT AND SINCE THE SAID ORDER FOR A.Y.02- 03 WAS CORRECT AS PER PROVISIONS OF LAW AND FACTS OF T HE CASE AND THERE HAS BEEN NO CHANGE, IT IS SUBMITTED THAT THE CIT(A) OUGHT TO HAVE FOLLOWED THE SAME AND RELIEF O UGHT TO HAVE BEEN ALLOWED BY THE CIT(A). 3. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT TH E ISSUE OF LEGALITY OF NOTICE ISSUED UNDER SECTION 148 OF THE ACT, REOPENING THE CASE OF THE ASSESSEE, GOES TO THE ROOT OF THE CASE, AND BEING LEGAL IN NATURE, MAY BE ADMITTED BY THE TRIBUNAL. HE SUBMIT TED THAT THIS ISSUE WAS NOT RAISED BY THE ASSESSEE BEFORE THE LOWER AUT HORITIES, AND THIS ITA NO.1472/AHD/2010 -3 GROUND HAS BEEN TAKEN FOR THE FIRST TIME BEFORE THE TRIBUNAL. THE LEARNED DR HAS SUBMITTED THAT THE ISSUE OF LEGALITY OF NOTICE U/S.148 OF THE ACT WAS NOT BEFORE THE REVENUE AUTHORITIES, AND SHOULD NOT HAVE BEEN TAKEN FOR THE FIRST TIME BEFORE THE TRIBUNAL. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS. REGARDING THE ISSUE OF LEGALITY OF NOTICE UNDER SECTION 148 OF THE ACT, WE FIND THAT THE ISSUE IS LEGAL IN NATURE, AND THEREFORE, COULD BE TAKEN F OR THE FIRST TIME BEFORE THE TRIBUNAL. HOWEVER, SINCE THE ISSUE WAS NOT RAISED BY THE ASSESSEE BEFORE THE REVENUE AUTHORITIES, WE CONSIDE R IT PROPER TO RESTORE THE SAME TO THE FILE OF THE CIT(A) WITH DIR ECTION TO DECIDE THE ISSUE OF LEGALITY OF ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT AND RECORD A FINDING ON THE SAME AFTER ALLOWING DUE OPP ORTUNITY OF HEARING TO BOTH PARTIES ON THIS ISSUE. IN VIEW OF OUR DECI SION TO RESTORE THE ISSUE OF LEGALITY OF NOTICE ISSUED UNDER SECTION 14 8 OF THE ACT TO THE FILE OF THE CIT(A), WE ARE NOT ADJUDICATING OTHER I SSUES FOR THE CLAIM OF ASSESSEE FOR DEDUCTION UNDER SECTION 80HHC, AND THE SAME IS ALSO RESTORED TO THE FILE OF THE CIT(A) TO DECIDE THE SA ME DE NOVO AS PER LAW, AFTER PROVIDING REASONABLE OPPORTUNITY OF HEAR ING TO BOTH THE SIDES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %& %& %& %& / TEJ RAM MEENA) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT