Deputy Commissioner of Income-tax , Jalgaon V. Smt. Shakuntala S. Sanghavi, Jalgaon

ITA 1548/PUN/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1924 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.1548/PN/2014 #& & / ASSESSMENT YEAR : 2008-09 DCIT, CIRCLE-1, JALGAON . / APPELLANT V/S SMT. SHAKUNTALA S. SANGHAVI, NILONS HOUSE, NEAR N.H.NO.6, JALGAON 425001 PAN NO.AWOPS4626E . / RESPONDENT / ASSESSEE BY : SHRI NIKHIL PATHAK / REVENUE BY : SHRI HITENDRA NINAWE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 27-05-2015 OF THE CIT(A)-II, NASHIK RELATING TO ASSESSMENT YEARS 2008-09. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND WAS A PARTNER OF DEEPAK FOODS WHICH WAS ENGAGED IN THE BUSINESS OF MANUFACTURE AND SALE IN TUTI- FRUTI. THE ORIGINAL ASSESSMENT WAS COMPLETED U/S.143(3)(II) ON 24-12- 2010 DETERMINING THE TOTAL INCOME AT RS.47,580/-. SUBSEQUENTLY THE LD.CIT PASSED AN ORDER U/S.263 ON 21 -03- / DATE OF HEARING :28.04.2016 / DATE OF PRONOUNCEMENT:29.04.2016 2 ITA NO.1548/PN/2014 2013 HOLDING THAT THE AMOUNT OF RS.21,52,73,777/- RECEIVED BY THE ASSESSEE UNDER THE HEAD GOODWILL AND STATED TO B E NOT TAXABLE BY THE ASSESSEE IS TO BE TAXED UNDER THE HEAD CAPITAL GAINS . AFTER THE ORDER OF THE CIT U/S.163 THE AO IN TH E ORDER PASSED U/S.143(3) R.W.S. 263 ORDER DATED 12-12-2013 DETERMINED THE TOTAL INCOME AT RS.21,53,21,537/- BY BRINGING TO TAX THE ENTIRE AMOUNT RECEIVED BY THE ASSESSEE FROM TH E PARTNERSHIP FIRM. 3. BEFORE CIT(A) THE ASSESSEE SUBMITTED THAT AGAINST THE ORDER PASSED U/S.263 BY THE CIT THE ASSESSEE HAD PRE FERRED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ITA NO.956/PN/2013 ORDER DATED 21-03-2014 HAS QUASHED TH E ORDER PASSED U/S.263. 4. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LD.CIT(A) HELD THAT IN VIEW OF THE ORDER PASSED BY THE TRIB UNAL QUASHING THE 263 ORDER, THE ASSESSMENT ORDER DATED 12 -12-2013 PASSED BY THE AO U/S.143(3) R.W.S. 263 DOES NOT STAND AN D THE SAME DOES NOT SURVIVE. HE HOWEVER HELD THAT IN THE EV ENT OF THE ORDER OF THE TRIBUNAL BEING SET ASIDE BY THE DECISION OF TH E HIGHER COURT HIS ORDER SHALL STAND REVIVED AUTOMATICALLY. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVENUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD CIT(A)-II , NASHIK HAS ERRED IN HOLDING THAT IN CONSEQUENCE OF CIT ' S ORDER U/S 263 BEING QUASHED AND SET ASIDE BY HON'BLE IT AT, PUNE, ASSESSMENT ORDER DT. 12/12/2013 PASSED BY A.O U/S 143(3) R WS 263 DOES NOT STAND. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD . CIT(A)-II, NASHIK HAS ERRED IN HOLDING THAT IN THE EV ENT OF THE ORDER OF TRIBUNAL BEING SET ASIDE BY THE DECISION OF THE HI GHER COURT, THIS APPELLATE ORDER SHALL STAND REVIVED AUTOMATICALLY . 3 ITA NO.1548/PN/2014 3. THE APPELLANT RESPECTFULLY DRAWS THE ATTENTION TO THE FACT THAT AN APPEAL TO THE HON ' BLE HIGH COURT, BOMBAY BENCH AT AURANGABAD AGAINST THE DECISION OF THE HON ' BLE ITAT FOR THE I MPUGNED ORDER U/S 263 OF THE I.T.ACT, 1961 IS FILED A ND IS PENDING . THEREFORE , IT IS PRAYED TO SET ASIDE THE ORDER OF THE CIT(A) TILL THE DECISION OF THE HON'BLE HIGH COURT. 4. THE APPELLANT CRAVES LEAVE TO ADD , ALTER, MODIFY, DELETE AMEND ANY OF THE GROUNDS WITH PRIOR PERMISSION OF THE HON'BLE CIT, AS PER THE CIRCUMSTANCES OF THE CASE. 5. THE APPELLANT PRAYS TO FILE ANY OF THE ADDITIONAL EVIDENCE APPROPRIATE TO THE GROUNDS TAKEN IN APPEAL. 6. AFTER HEARING BOTH THE SIDES, WE DO NOT FIND ANY MERIT IN THE GROUNDS RAISED BY THE REVENUE. AS STATED EARLIER, T HE ORDER OF THE CIT PASSED U/S.263 HAS ALREADY BEEN QUASHED BY THE TRIBUNAL. THE REVENUE ONLY WANTS TO KEEP THE MATTER A LIVE SINCE AN APPEAL HAS BEEN FILED BEFORE THE HONBLE HIGH COU RT AGAINST THE ORDER OF THE TRIBUNAL. UNTIL AND UNLESS THE OR DER OF THE TRIBUNAL IS REVERSED BY A HIGHER COURT THE CIT(A) IS B OUND TO FOLLOW THE ORDER OF THE TRIBUNAL. WE THEREFORE DO NOT FIND A NY INFIRMITY IN THE ORDER OF THE CIT(A) HOLDING THAT IN CONSEQU ENCE OF CITS ORDER U/S263 BEING QUASHED AND SET ASIDE BY T HE TRIBUNAL, THE ORDER PASSED BY THE AO U/S.143(3) R.W.S.263 D OES NOT STAND. THE GROUNDS RAISED BY THE REVENUE ARE A CCORDINGLY DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29-04-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED : 29 TH APRIL, 2016. 4 ITA NO.1548/PN/2014 ) *#,! -! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) - I I , NASHIK 4. 5. 6. THE CIT-II, NASHIK $ ''(, (, / DR, ITAT, B PUNE; - / GUARD FILE. / BY ORDER , // TRUE COPY // // TRUE COPY // // $ ' //TRUE /0 ' ( / SR. PRIVATE SECRETARY (, / ITAT, PUNE