Green World Corporation, New Delhi V. ITO, New Delhi

ITA 1511/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3640 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-06-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 16-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D N KAR
• Assessee Lawyers: S B GARG
• Keywords: Reassessment proceedings
• Section: 143(3); 142(2A); 147; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.G. BANSAL ITA NO. 1511 & 1637/DEL/09 A.Y. 1998-99 & 1999-2000 GREEN WORLD CORPN. VS. INCOME-TAX OFFICER, SHOP NO. 3065, D.B. GUPTA ROAD, WARD-19(3), NEW DE LHI. OPPOSITE STATE BANK OF INDIA, PAHARGANJ, NEW DELHI. PAN/ GIR NO. AAAFG6719Q ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI S.B. GARG CA & SH. ACHIN GA RG ADV. RESPONDENT BY : SHRI D.N. KAR CIT DR O R D E R PER R.P. TOLANI , J.M : THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAIN ST SEPARATE ORDERS DATED 13-03-2009 PASSED BY THE COMMISSIONER OF INCO ME-TAX U/S 263 OF THE INCOME-TAX ACT, 1961 FOR A.Y. 1998-99 & 1999-2000, REVISING THE RESPECTIVE ASSESSMENT ORDERS DATED 8-11-2006 PASSED BY THE AO U/S 143(3) READ WITH SECTION 147 OF THE I.T. ACT, 1961. THE AS SESSEE HAS RAISED VARIOUS GROUNDS IN SUM AND SUBSTANCE TO CHALLENGE THE VALID ITY OF ACTION U/S 263. 2. THE LEARNED COUNSEL CONTENDS THAT THE REASSESSME NT ORDER DATED 8-11- 2006 FOR A.Y. 1998-99 PASSED BY THE AO HAS BEEN QU ASHED BY THE ITAT VIDE ORDER DATED 4-9-2009 IN ITA NO. 408/DEL/09, BY OBSERVING AS UNDER: 6. IN THIS VIEW OF THE SITUATION, WE FOUND THAT TH E ISSUE RAISED BEFORE US IS SQUARELY COVERED BY AFOREMENTIONED ORDER DATED 19.6 .2009 OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2002-03. IN PARA 34 QUOTED AS ABOVE, IT CAN BE NOTED THAT CO-ORDINATE BENCH HAS Q UASHED NOTICE U/S 148. ADOPTING THE SIMILAR VIEW WE HOLD THAT NOTICE U/S 1 48 IS QUASHED FOR THE PRESENT YEAR ALSO AND AS NOTICE IS QUASHED NOTHING ELSE SURVIVES AND 1511 &1637-D-09 M/S GREEN WORLD CORPN. LTD. 2 ACCORDINGLY, THE REMAINING GROUNDS RAISED IN THE PR ESENT APPEAL DO NOT REQUIRE GOING INTO. WE HOLD ACCORDINGLY. 3. LIKEWISE FOR A.Y. 1999-2000 THE ITAT QUASHED THE REASSESSMENT ORDER VIDE DATED 12-6-2009 IN ITA NO. 723/DEL/09. I T WAS PLEADED THAT THE ACTION U/S 263 IS ALWAYS INVOKED QUA THE ORDER PA SSED BY LOWER AUTHORITY. IF SUCH ORDER DOES NOT SURVIVE, THEN THE REVISIONARY A CTION TAKEN U/S 263 CONSEQUENTIALLY IS TO BE QUASHED. LEARNED COUNSEL FURTHER CONTENDS THAT IN VARIOUS OTHER YEARS SIMILAR ACTION U/S 263 HAVE BEE N QUASHED AS REOPENED ASSESSMENT HAVE BEEN HELD TO BE BAD IN LAW. 4. IN A.Y. 2001-02, IN ITA NO. 1746/DEL/09 THE ITA T VIDE ORDER DATED 14-5-2010 QUASHED THE ORDER PASSED U/S 263 BY FOLLO WING OBSERVATIONS: 11. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF CO-ORDINATE BENCH IN THE ASSESSEES OWN CASE, WE HOLD THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT U/S 263 ON 13.03.2009 IN RESPECT OF THE ASSESSM ENT ORDER MADE BY THE AO U/S 143(3)/147 OF THE ACT ON 15.11.2006 IS INVAL ID AND WITHOUT JURISDICTION IN AS MUCH AS, THE ASSESSMENT ORDER IN RESPECT OF WHICH THE LD. CIT HAS EXERCISED HIS POWER U/S 263 OF THE ACT, DOE S NOT SURVIVE ANY MORE IN THE LIGHT OF THE TRIBUNALS ORDER 11.09.2009, QU ASHING THE REASSESSMENT PROCEEDINGS AS INVALID. THE TRIBUNALS ORDER DATED 11.09.2009 QUASHING THE PROCEEDINGS INITIATED BY THE AO U/S 147 OF THE ACT GOES BACK TO THE DATE WHEN THE AO ASSUMED HIS JURISDICTION U/S 147 O F THE ACT AND ISSUED NOTICE U/S 148 OF THE ACT. WE, THEREFORE, QUASH THE ORDER PASSED BY THE LD. CIT U/S 263 ACCORDINGLY. 5. IN A.Y. 2002-03, IN ITA NO. 1854/DEL/09 THE ITA T VIDE ORDER DATED 13-11-2009 QUASHED THE ORDER PASSED U/S 263 BY FOLL OWING OBSERVATIONS: 9. IF WE READ THE ABOVE OBSERVATIONS AND ABOVE PAR A, IT IS CLEAR THAT THE IMPUGNED ASSESSMENT DOES NOT SURVIVE AS IT HAS BEEN QUASHED BY THE TRIBUNAL VIDE ITS ORDER DATED 19.06.09. THE POWER U /S 263 HAS BEEN EXERCISED BY THE LD. COMMISSIONER IN RESPECT OF IMP UGNED ASSESSMENT WHICH IS NO MORE IN EXISTENCE. IF THE VERY BASIS IS REMOVED THEN THE ORDER U/S 263 DOES NOT HAVE ANY LEGS TO STAND. . PAGE 24 : .. THEREFORE, THERE IS NO ROOM FOR SUBSISTENCE OF ORDER PASSED BY CIT U/S 263 IN RESPECT OF AN ASSESSMENT WHICH HAS ALREADY B EEN QUASHED BY THE 1511 &1637-D-09 M/S GREEN WORLD CORPN. LTD. 3 TRIBUNAL. THE ORDER PASSED BY CIT U/S 263 IN RESPEC T OF ASSESSMENT, WHICH HAD ALREADY BEEN QUASHED BY ITAT, CANNOT BE HELD TO BE VALID AND AHS TO BE QUASHED. ACCORDINGLY, ORDER U/S 263 IS QUASHED. 6. THE LEARNED DR, ON THE OTHER HAND, ENDEAVOURED TO DISTINGUISH THESE APPEALS AND CONTENDS THAT THIS CASE HAS A CHEQUERED HISTORY AND FLOWS FROM HONBLE SUPREME COURTS ORDER IN CIT VS. GREEN WORL D CORPORATION 314 ITR 81 AND SUBSEQUENT PROCEEDINGS. IT WAS CONTENDED THAT THE ASSESSEE HAS NOT COMPLIED WITH THE PROVISIONS OF SECTION 142(2A) AND THE CIT (A) IN 263 ORDERS HAS GIVEN DISTINCT REASONS. REVENUE HAS FILE D CURATIVE APPLICATIONS BEFORE THE HONBLE SUPREME COURT, THEREFORE, BY HOL ISTIC READING THE ITAT MAY EXERCISE ITS EXTRAORDINARY POWERS TO HOLD THAT 263 ACTION BE DEEMED TO BE INVOKED ON ORIGINAL ORDERS U/S 143(1). THE LEARN ED DR RELIED ON THE RATIO OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF MOHAMMAD KUNHI 71 ITR 815 FOR THE PROPOSITION THAT TRIBUNAL HAS POW ER TO DECIDE ANCILLARY MATTERS TO DECIDE THE APPEAL. 7. THE LEARNED COUNSEL FOR THE ASSESSEE IN REJOINDE R CONTENDS THAT BY ANCILLARY POWER THE ITAT CANNOT ENHANCE THE STATUTO RY TIME LIMIT WHICH IS NEITHER CHALLENGED BY THE REVENUE IN ANY APPEAL OR CROSS OBJECTION. THE CURATIVE APPLICATION OF THE DEPARTMENT ALSO HAS BEE N DISMISSED BY THE HONBLE SUPREME COURT VIDE ORDER DATED 16-3-2010, W HICH HAS BECOME FINAL. 8. WE HAVE HEARD RIVAL SUBMISSIONS AND CAREFULLY CO NSIDERED THE ENTIRE MATERIAL ON RECORD. IN VIEW OF THE ORDER OF HONBLE SUPREME COURT, DISMISSING THE CURATIVE APPLICATION OF THE REVENUE, AS POINTED OUT BY THE LEARNED AR, A COPY OF WHICH IS PLACED ON RECORD, TH ERE REMAINS NO AMBIGUITY ABOUT THE ABOVE SUPREME COURTS ORDER. BESIDES, THE REVENUES PLEA THAT CASE OF MOHD. KUNHI (SUPRA), IS NOT TENABLE INASMUC H AS IN VIEW OF 1511 &1637-D-09 M/S GREEN WORLD CORPN. LTD. 4 SUPREME COURT JUDGMENT NO AMBIGUITY SURVIVES AND TH E LEARNED COUNSEL FOR THE ASSESSEE HAS RIGHTLY OPPOSED SUCH VIEW. SINCE T HE ISSUE ABOUT THE IMPUGNED REASSESSMENT HAVING BEEN QUASHED AND IS NO MORE RES-INTEGRA, REASSESSMENTS ARE QUASHED BY ITAT AND IN THIS EVENT UALITY, RESPECTFULLY FOLLOWING THE TRIBUNALS ORDERS IN ASSESSEES OWN C ASE ON SAME FACTS, WE HOLD THAT THE IMPUGNED REVISIONARY ACTIONS EXERCISE D BY THE COMMISSIONER OF INCOME TAX U/S 263 OF THE ACT FOR A.Y. 1998-99 A ND 1999-2000 ARE CONSEQUENTLY QUASHED. 9. IN THE RESULT ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 30 TH JUNE, 2010. SD/- SD/- (K.G. BANSAL ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH JUNE 2010. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 1511 &1637-D-09 M/S GREEN WORLD CORPN. LTD. 5