M/s Abhinav Wines, Puttur V. DCIT, Mangalore

ITA 1545/BANG/2010

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8654 (ITAT-BANGALORE)
• Duration Of Justice: 6 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-11-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 29-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: V. SRINIVASAN
• Keywords: Question of law; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS. A.Y. APPELLANT VS. RESPONDENT 1545/BANG/2010 2005-06 M/S. ABHINAV WINES, SRINIVAS KRIPA BLDG., OLD BUS STAND ROAD, UPPINANGADY, PUTTUR TALUK PAN: AALFA 7369Q THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, MANGALORE. 1546/BANG/2010 2006-07 1557/BANG/2010 2005-06 SHRI K. UDAYA KUMAR, CIVIL CONTRACTOR, UDAYGIRI, NEKKILADY, UPPINANGADY, PUTTUR TALUK. PAN: ANUPK 7409G 1558/BANG/2010 2006-07 APPELLANT BY : SHRI V. SRINIVASAN, ADVOCATE RESPONDENT BY : SHRI M.K. BIJU, JCIT(DR)(ITAT)-3 DATE OF HEARING : 01.12.2016 DATE OF PRONOUNCEMENT : 06.01.2017 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THESE APPEALS ARE PREFERRED BY DIFFERENT ASSESS EES AGAINST THE RESPECTIVE ORDERS OF THE CIT(APPEALS). SINCE THESE APPEALS WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER. WE, HOWEVER, PREFER TO ADJUDICATE THEM ONE AFTER THE OT HER. ITA NOS.1545 & 1546 AND 1557 & 1558/BANG/2010 PAGE 2 OF 5 ITA NOS.1545 & 1546/BANG/2010 2. THESE APPEALS ARE PREFERRED BY THE ASSESSEE FIRM AGAINST THE RESPECTIVE ORDERS OF THE CIT(APPEALS). IN ITA NO.1 545/BANG/2010, THE ASSESSEE HAS TAKEN GROUNDS WITH REGARD TO VALIDITY OF THE ASSESSMENT FRAMED U/S. 153C R.W.S. 143(3) OF THE INCOME TAX AC T, 1961 [THE ACT] ON THE GROUND OF VALID SERVICE OF NOTICE OF HEARING, BUT D URING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS OPTED NOT TO PRESS GROUND NOS.1, 2(A), 2(B) & 2(C) RELATING TO THIS ISSUE. A CCORDINGLY, THIS ISSUE IS DISMISSED BEING NOT PRESSED. 3. THE OTHER GROUNDS IN ITA NO.1545/BANG/2010 AND T HE GROUNDS IN ITA NO.1546/BANG/2010 ARE COMMON AND IT RELATES TO ASSESSMENT FRAMED IN THE STATUS OF AOP ONLY FOR THE SIMPLE REASON THA T THE REGISTERED PARTNERSHIP DEED WAS NOT FILED ALONG WITH THE RETUR N OF INCOME. THE ORDER OF AO WAS CONFIRMED BY THE CIT(APPEALS) WITHOUT LOO KING TO THE FACT THAT THE REGISTERED PARTNERSHIP DEED WAS FILED DURING TH E COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE AO. 4. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE AO OUGHT TO HAVE EXAMINED THE PARTNERSHIP DEED AND FRAMED THE A SSESSMENT IN THE STATUS OF FIRM HAVING RELIED UPON THE PARTNERSHIP D EED. THE LD. COUNSEL FURTHER PLACED RELIANCE UPON THE JUDGMENT OF HONBL E JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. JANARDHAN & ASSOCIATES IN ITA NO.2299/2005 IN WHICH IT HAS BEEN HELD THAT PARTNERSHIP DEED CAN AL SO BE FILED DURING THE ITA NOS.1545 & 1546 AND 1557 & 1558/BANG/2010 PAGE 3 OF 5 COURSE OF ASSESSMENT PROCEEDINGS AND ACCORDINGLY TH EY ANSWERED THE QUESTION I.E., 'WHETHER THE TRIBUNAL WAS CORRECT IN DIRECTING THE ASSESSING OFFICER TO EXAMINE THE CERTIFIED COPY OF THE PARTNE RSHIP DEED WHICH FILED SUBSEQUENTLY AND TO TREAT THE ASSESSEE AS A FIRM BY IGNORING THE MANDATORY PROVISIONS OF SECTION 184(2) OF THE ACT', IN THE AF FIRMATIVE AND IN FAVOUR OF THE ASSESSEE. THE RELEVANT OBSERVATIONS OF THE JUR ISDICTIONAL HIGH COURT ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- 2. THE APPEAL WAS ADMITTED TO CONSIDER THE FOLLOW ING SUBSTANTIAL QUESTION OF LAW. 'WHETHER THE TRIBUNAL WAS CORRECT IN DIRECTING THE ASSESSING OFFICER TO EXAMINE THE CERTIFIED COPY OF THE PARTNE RSHIP DEED WHICH FILED SUBSEQUENTLY AND TO TREAT THE ASSESSEE AS A FIRM BY IGNORING THE MANDATORY PROVISIONS OF SECTION 184 (2) OF THE ACT.' 3. SIMILAR QUESTION HAS BEEN ANSWERED BY THE DIVISI ON BENCH OF THIS COURT IN THE CASE OF COMMISSIONER OF INCOME TAX AND ANOTHER V/S ACE MULTITAXES PVT LTD., AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. FOLLOWI NG THE SAME, THE APPEAL IS DISMISSED. 5. SINCE IT HAS BEEN HELD BY THE HONBLE JURISDICTI ONAL HIGH COURT THAT ONCE THE PARTNERSHIP DEED IS FILED DURING THE COURS E OF ASSESSMENT PROCEEDINGS, SUBSEQUENT TO THE FILING OF THE RETURN , IT MEETS THE REQUIREMENT OF LAW AND IT HAS TO BE EXAMINED BY THE AO WHILE CO MPLETING THE ASSESSMENT IN THE STATUS OF FIRM, WE ARE, THEREFOR E, OF THE VIEW THAT THE AO SHOULD HAVE EXAMINED THE PARTNERSHIP DEED FILED DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS AND FRAMED PROPER ASSESSMENT IN THE STATUS OF ITA NOS.1545 & 1546 AND 1557 & 1558/BANG/2010 PAGE 4 OF 5 REGISTERED FIRM. WE ACCORDINGLY SET ASIDE THE ORDE R OF CIT(APPEALS) AND DIRECT THE AO TO EXAMINE THE CERTIFIED COPY OF THE PARTNERSHIP DEED FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND IF HE FINDS THE PARTNERSHIP FIRM TO BE GENUINE, THE ASSESSMENT BE F RAMED IN THE STATUS OF FIRM. 6. ACCORDINGLY, THE APPEALS FILED BY THE ASSESSE IN ITA NOS. 1545 & 1546/BANG/2010 STANDS ALLOWED FOR STATISTICAL PURPO SES. ITA NOS. 1557 & 1558 7. THE OTHER APPEALS I.E., ITA NOS.1557 & 1558/BANG /2010 ARE FILED BY THE PARTNER OF THE AFORESAID FIRM AND SINCE THE ASS ESSMENT IN THE HANDS OF PARTNERSHIP FIRM IS TO BE FRAMED AFRESH IN THE LIGH T OF DIRECTIONS GIVEN HEREINABOVE, THE ASSESSMENT HAS TO BE FRAMED AFRESH IN THE HANDS OF PARTNER ALSO. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(APPEALS) IN THESE APPEALS AND RESTORE THE MATTER TO THE ASSESSING OFF ICER TO FRAME THE ASSESSMENT AFRESH IN THE HANDS OF PARTNER, AFTER TA KING INTO ACCOUNT THE ASSESSMENT FRAMED IN THE HANDS OF PARTNERSHIP FIRM. 8. ACCORDINGLY THE APPEALS FILED BY THE ASSESSEES S TAND ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.1545 & 1546 AND 1557 & 1558/BANG/2010 PAGE 5 OF 5 9. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 06 TH DAY OF JANUARY, 2017. SD/- SD/- (A.K. GARODIA ) (SUNIL KUMAR YADAV ) ACCOUNTANT MEMBER JUDICI AL MEMBER BANGALORE, DATED, THE 06 TH JANUARY, 2017. / DS / COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.