DCIT, SRIGANGANAGAR V. M/s. Ganesh Builders, SRIGANGANAGAR

ITA 150/JODH/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78218 (ITAT-JODHPUR)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-07-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 150 /JODH/201 4 (A.Y. 200 7 - 08 ) DCIT, CIRCLE, VS. M/S. GA NESH BUILDERS, SRIGANGANAGAR . 1 - C - 19, JAWAHAR NAGAR, SRIGANGANAGAR. PAN NO. AA BFG 1354 Q (APPELLANT) (RESPONDENT) C.O. NO. 1 6 /JODH/201 4 (A.Y. 200 7 - 08 ) M/S. GANESH BUILDERS, VS. DCIT, CIRCLE, 1 - C - 19, JAWAHAR NAGAR, SRIGANGANAGAR. SRIGANGANAGAR. PAN NO. AABFG 1354 Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURESH OJHA . DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 24 / 0 7 /201 4 . DATE OF PRONOUNCEMENT : 25 /0 7 /201 4 . O R D E R 2 PER N.K. SAINI, A.M TH E APPEAL BY THE DEPARTMENT AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 2 0 / 12 /2013 OF L D . CIT(A), BIKANER . IN THE DEPARTMENT AL APPEAL, THE ONLY GROUND RAISED READ AS UNDER: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ACCEPTING THE APPEAL OF THE ASSESSEE ON THE BASIS OF ORDER PASSED BY THE HON'BLE ITAT AGAINST THE ORDER U/S 263 OF CIT, EVEN THOUGH THE DEPARTMENT HAS FILED FURTHER APPEAL U/S 2 60A BEFORE THE HON'BLE HIGH COURT AGAINST THE SAID ORDER OF ITAT. 2 ON A PLAIN READING OF THE ABOVE GROUNDS, IT WOULD BE CLEAR THAT THE DEPARTMENT WANTS TO KEEP THE ISSUE ALIVE , ONLY ON THIS BASIS THAT THE ORDER OF THE ITAT WHICH HAS BEEN FOLLOWED BY THE LD. CIT(A) WHILE DECIDING THE ISSUE UNDER CONSIDERATION HAD BEEN CHALLENGED BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. 3. FACTS RELATING TO THE CASE, IN BRIEF, ARE THAT THE ASSESSMENT OF THE ASSESSE E WAS ORIGINALLY COMPLETED BY THE ASSESSING OFFICER ON 27/04/2009. THEREAFTER, THE LD. CIT(A) ISSUED NOTICE U/S 263 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) ON 26/0 3 /2011 AND PASSED THE ORDER U/S 263 OF THE ACT DATED 04/11/2011 WITH CERTAIN 3 DIRECTIONS TO THE ASSESSING OFFICER. IN PURSUANCE TO THOSE DIRECTIONS, THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 143(3) OF THE ACT VIDE ORDER DATED 09/11/2012 . IN THE SAID ASSESSMENT , THE ASSESSING OFFICER MADE CERTAIN ADDIT IONS AS PER THE DIRECTIONS OF THE LD. CIT, BIKANER VIDE ORDER DATED 04/11/2011 . IN THE MEANWHILE, THE ASSESSEE PREFERRED AN APPEAL TO THE ITAT , JODHPUR BENCH , JODHPUR AGAINST THE ORDER PASSED BY THE LD. CIT U/S 263 OF THE ACT WHICH WAS PENDING AT THE TIME THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER CONSIDERATION. IN THE MEANWHILE , THE ITAT SET ASIDE THE ORDER U/S 263 OF THE ACT PASSED BY THE LD. CIT AND HELD THAT THE ORIGINAL ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. AGAINST THE ASSESSMENT ORDER DATED 09/11/2012 PASSED U/S 143(3) OF THE ACT, THE ASSESSEE PREFERRED AN APPEAL TO THE LD. CIT(A) AND FURNISHED THE COPY OF THE ORDER DATED 26/02/2013 PASSED B Y THE ITAT IN I.T.A.NO. 410 & 411/ JU/2011 WHEREIN THE ORDER PASSED BY THE LD. CIT U/S 263 OF THE ACT WAS SET ASIDE . 4. THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER AS PER THE DIRECTION OF THE LD. CIT, BIKANER AND THOSE DIRECTIONS WERE DECLARED AS ILLEGAL AND AGAINST THE LAW BY THE ITAT. HE THEREFORE, 4 DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER. NOW THE DEPARTMENT IS IN APPEAL. 5. LEARNED D.R. ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THE FINDINGS GIVEN BY THE LD. CIT(A). 6 . IN HIS RIVAL SUBMISSIONS, LEARNED COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LD. CIT(A) AND FURTHER SUBMITTED THAT THE ORDER OF THE ITAT WAS BINDING IN NATURE AND THE LOWER AUTHORITY IS BOUND TO FOLLOW THE ORDER OF THE TRIBUNAL UNLESS AND OTHERWISE IT IS EITHER REVERSE OR STAYED BY THE HIGHER FORUM. RELIANCE WAS P L ACED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF KAN A LAKSHMI FINANCE LTD. REPORTED AT 72 TAXMAN 43. 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER ON THE DIRECTION GIVEN VIDE ORDER DATED 04/11/2011 PASSED U/S 263 OF THE ACT BY THE LD. CIT, BIKANER . THE SAID ORDER WAS SET ASIDE BY THE ITAT , THEREFORE, THE LD. CIT(A) WAS FULLY JUSTIFIED IN DELETING THE ADDITIONS MADE BY THE ASSESSING OFFICER O N THE BASIS OF THE ORDER PASSED BY THE LD. CIT(A) U/S 263 OF THE ACT WHICH HAS ALREADY BEEN SET 5 ASIDE BY THE ITAT. WE THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT . 8 . IN THE CROSS OBJECTION, THE ASSESSEE SIMPLY SUPPORTED THE ORDER OF THE LD. CIT(A) AND STATED THAT THE APPEAL OF THE DEPARTMENT IS NOT MAINTAINABLE IN VIEW OF THE JUDGMENT OF HON'BLE SUPREME COURT DELIVERED IN THE CASE OF KANALAKSHMI FINANCE CO. (SUPRA) . SINCE WE HAVE DISMISSED THE APPEAL OF THE DEPARTMENT , THIS CROSS OBJECTION OF THE ASSESSEE BECOMES INFRUCTUOUS. 9 . IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED AND THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. ( ORDER PRONOUNCED IN THE COURT ON 25 TH JULY , 201 4) . SD/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 25 TH J ULY , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .