ACIT, Circle - 2, Margao V. New Era Shipping Ltd, Vasco

ITA 152/PAN/2009

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1028 (ITAT-PANAJI)
• Duration Of Justice: 5 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-06-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 08-12-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHA DESAI LD
• Assessee Lawyers: D E ROBINSON
• Keywords: Opportunity of being heard; Question of law; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI GEORGE MATHAN , HONBLE JUDICIAL MEMBER ITA N O . 152 /PNJ/20 09 : (A.Y 2004 - 05 ) ACIT, CIRCLE - 2, MARGAO ( APPELLANT) VS. NEW ERA SHIPPING LTD., 1 ST FLOOR, DR. MUKUND BUILDING, F.L. GOMES ROAD, VASCO - DA - GAMA PAN : AABCN7724Q (RESPONDENT) CO N O . 42 /PNJ/20 14 (IN ITA NO. 152 /PNJ/20 09) : (A.Y 2004 - 05 ) NEW ERA SHIPPING LTD., 1 ST FLOOR, DR. MUKUND BUILDING, F.L. GOMES ROAD, VASCO - DA - GAMA PAN : AABCN7724Q (CROSS OBJECTOR) VS. ACIT, CIRCLE - 2, MARGAO ( RESPONDENT) ASSESSEE BY : D.E. ROBINSON, ADV. REVENUE BY : SMT. ASHA DESAI , LD. DR DATE OF HEARING : 09 / 06 /201 5 DATE OF PRONOUNCEMENT : 09 / 06 /201 5 O R D E R 1. ITA NO. 152/PNJ/2009 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A), PANAJI IN ITA NO. 205/MRG/07 - 08 DT. 22.9.2009 FOR A.Y 2004 - 05. CO NO. 42/PNJ/2014 IS THE CROSS OBJECTION FILED BY THE ASSESSEE AGAINST THE REVENUES APPEAL IN ITA NO. 152/PNJ/2009. THE CROSS OBJECTION FILED BY THE ASSESSEE IS TIME BARRED BY 1751 DAYS. THE ASSESSEE ALSO FILED AN AFFIDAVIT REQUESTING FOR CONDONATION OF DELAY AND HAS GIVEN REASONS IN THE AFFIDAVIT. THE LD. SENIOR STANDING COUNSEL ON BEHALF OF THE REVENUE 2 ITA NO. 152/PNJ/2009 & CO NO. 42/PNJ/2014 (A.Y : 2004 - 05) VEHEMENTLY OPPOSED THE CONDONATION OF THE DELAY. IT WAS THE SUBMISSION THAT THAT THE ORDER OF THE HON'BLE HIGH COURT RESTORING THE APPEAL TO THE TRIBUNAL WAS DT. 10.9.2012 BUT THE CROSS OBJECTION HAS BEEN FILED ONLY ON 3.11.2014. IT WAS THE SUBMISSION T HAT THE DELAY SHOULD NOT BE CONDONED. 2. WE HAVE CONSIDERED THE SUBMISSIONS AND THE AFFIDAVIT FOR THE CONDONATION OF THE DELAY. THE AFFIDAVIT SPECIFICALLY MENTIONS THE REASONS FOR THE DELAY WAS THAT THE ASSESSEE WAS UNDER THE BONA FIDE BELIEF THAT BY T HE DIRECTION OF THE HON'BLE HIGH COURT IN TAX APPEAL NO. 44/2012 THE TRIBUNAL WAS BOUND TO HEAR THE ISSUE OF RE - OPENING. HOWEVER, IT IS ONLY AS A PRECAUTION THAT THE CROSS OBJECTION HAS BEEN FILED. THE REASONS ARE FOUND TO BE REASONABLE. CONSEQUENTLY, TH E DELAY IN FILING OF THE CROSS OBJECTION STANDS CONDONED. 3. AS THE ISSUE OF RE - OPENING GOES TO THE ROOT OF THE APPEAL, LD. COUNSEL ON BEHALF OF THE RESPONDENT - ASSESSEE WAS REQUESTED TO MAKE HIS SUBMISSIONS ON RE - OPENING. IT WAS SUBMITTED BY THE LD. AR O N BEHALF OF THE ASSESSEE THAT THE REASONS FOR THE RE - OPENING WAS NOT GIVEN TO THE ASSESSEE BEFORE THE COMPLETION OF THE ASSESSMENT. IT WAS THE SUBMISSION THAT THE ASSESSMENT WAS COMPLETED ON 13.11.2007 WHEREAS THE REASONS FOR THE RE - OPENING WAS GIVEN TO T HE ASSESSEE ONLY ON 17.7.2011 WHEN THE APPEAL WAS BEFORE THE TRIBUNAL. IT WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF VIDESH SANCHAR NIGAM LTD. REPORTED IN 340 ITR 66 AS THE REASONS RECORDED FOR RE - OPENI NG OF THE ASSESSMENT WERE NOT FURNISHED TO THE ASSESSEE TILL COMPLETION OF THE ASSESSMENT, THE RE - ASSESSMENT ORDER CANNOT BE UPHELD. IT WAS INFORMED TO THE LD. AR AT THIS POINT THAT AS THE REASONS HAVE NOT BEEN GIVEN TO THE ASSESSEE AND AS THE OBJECTION T O THE SAME HAVE NOT BEEN CONSIDERED , IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFT S (INDIA) LTD. REPORTED IN 259 ITR 19 (SC) THE ISSUES IN THIS APPEAL WOULD HAVE TO 3 ITA NO. 152/PNJ/2009 & CO NO. 42/PNJ/2014 (A.Y : 2004 - 05) BE RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION IN RESPECT OF THE ISSUE OF RE - OPENING AND CONSIDER THE OBJECTIONS OF THE ASSESSEE AND PASS THE ASSESSMENT ORDER AFRESH. IT WAS AT THAT POINT SUBMITTED BY THE LD. AR THAT THE HON'BLE BOMBAY HIGH COURT AT GOA HAS IN ITS ORDER DT. 10.9.2012 DIRECTED THAT THE TRIBUNAL MUST HEAR AND DECIDE ALL THE ISSUES. THE LD. SENIOR STANDING COUNSEL ON BEHALF OF THE REVENUE HAD NO OBJECTION TO THE ISSUE BEING RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION IN LINE WITH THE DECISION OF THE HON'BLE SUPREME COURT IN THE CA SE OF GKN DRIVESHAFT S (INDIA) LTD. REPORTED IN 259 ITR 19 (SC) REFERRED TO SUPRA. 4. WE HAVE CONSIDERED THE SUBMISSIONS. ADMITTEDLY, THE HON'BLE JURISDICTION HIGH COURT OF BOMBAY AT GOA HAS REFERRED TO THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN TH E CASE OF GANESH BUILDERS REPORTED IN 116 ITR 911 WHEREIN THE HON'BLE HIGH COURT HAS SPECIFICALLY EXTRACTED THE FOLLOWING PORTION WE MAY INCIDENTALLY OBSERVE THAT IN A CASE LIKE THE PRESENT ONE, WHERE ALTERNATIVE ARGUMENTS ON FACTS ARE POSSIBLE AND VARYIN G FINDINGS CAN BE GIVEN, IT IS DESIRABLE THAT THE APPELLATE AUTHORITY GIVES ALL FINDINGS OF FACT AND NOT DISPOSE OF THE MATTER MERELY ON A POINT OF LAW. THIS WOULD FACILITATE FINAL DISPOSAL OF THE MATTER BY THE HIGH COURT, WHOSE JURISDICTION IS LIMITED MER ELY TO THE QUESTION OF LAW BY THE ADDED CHAP. XX - A. THIS IS A NORMAL APPROACH IN ALL CIVIL MATTERS UNLESS OF COURSE A POINT OF LAW IS ALREADY DECIDED BY THE HIGHEST COURT OF THIS LAND AND IT IS NOT WORTHWHILE MAKING ALL THE EXERCISES IN GOING THROUGH THE C OMPLICATED FACTS REQUIRED FOR THE DECISION OF THIS CASE . 5. HERE, IT MUST BE MENTIONED THAT THE FACTS EMANATING TO THIS APPEAL , BEING THE COPY OF THE REASONS RECORDED , ARE NOT BEFORE THE TRIBUNAL. THOUGH THE LD. AR HAS ALSO INVOKED THE POWERS UNDER RULE 27 OF THE ITAT RULES FOR THE PURPOSE OF RAISING THE GROUND OF RE - OPENING , AS THE VERY FOUNDATION OF THE ISSUE RESTS ON THE REASONS RECORDED AND THE ORDER SHEET ASSOCIAT ED WITH SUCH REASONS RECORDED AND THE BASIC FACTS NOT BEING AVAILABLE BEFORE THIS TRIBUNAL, WE ARE OF 4 ITA NO. 152/PNJ/2009 & CO NO. 42/PNJ/2014 (A.Y : 2004 - 05) THE VIEW THAT IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFT S (INDIA) LTD. REPORTED IN 259 ITR 19 (SC) REFERRED TO SUP RA , THE ISSUE IN THIS APPEAL MUST BE RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE PARTLY ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED AND DICTATED IN THE OPEN COURT ON 09/06/2015. S D / - (N.K. BILLAIYA) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 0 9 /06/ 201 5 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 5 ITA NO. 152/PNJ/2009 & CO NO. 42/PNJ/2014 (A.Y : 2004 - 05) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 09/06/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 09/06/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 09/06/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 09/06/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 1 0 /06/2015 SR.PS 6. DATE OF PRONOUNCEMENT 09/06/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 1 0 /06/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER