ITO 12(1)(2), MUMBAI V. AI ANU DEVELOPERS P.LTD, MUMBAI

ITA 1619/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3094 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 08-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHOK GUPTA DIRE CTOR
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA NO.1 619, 1620 & 1621 /MUM/201 7 (A.Y S : 2004 - 05, 2005 - 06 & 2006 - 07 ) INCOME TAX OFFICER - 12(1 )(2) ROOM NO. 146A , 1 ST FLOOR AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 V. M/S. ANI AN U DEVELOPERS PVT. LTD., 18, SURTI CHAMBERS, 2 ND DHOBI TALAO LANE, MUMBAI 400 002 PAN: AACCA 5917 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHOK GUPTA [DIRE CTOR] DEPARTMENT BY : SHRI ANOOP HIWASE DATE OF HEARING : 23.08.2018 DATE OF PRONOUNCEMENT : 27 .08 .2018 O R D E R PER SHRI C. N. PRASAD (JM) 1. THESE THREE APPEALS ARE FILED BY THE REVENUE AGAINST DIFFERENT ORDERS OF THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) 9, MUMBAI DATED 29.12.2016 FOR THE ASSESSMENT YEARS 2004 - 05 TO 2006 - 07. 2. REVENUE IN ALL THESE APPEALS RAISED THE FOLLOWING COMMON GROUNDS: (1) WHETHER THE LD.CIT(A) HAD THE POWER TO SEND THE MATTER BACK TO THE ASSESSING OFFICER TO DECIDE T H E MATTER AFRESH IN VIEW OF THE AMENDMENT MADE IN SECTION 251(1)(A) TAKING AWAY SUCH POWER, WHICH 2 ITA NO.1619, 1620 & 1621/MUM/2017 M/S. ANI ANU DEVELOPERS PVT. LTD., WAS MADE WITH EFFECT FROM 01.06.2001, WHILE THE APPEAL IN THE PRESENT CASE BEFORE THE LEARNED COMMISSIONER WAS FILED ON 16.04.2014. (2) THE LD.CIT(A) OUGHT TO H AVE APPRECIATED THE FACT THAT THE ASSESSING OFFICER DOES NOT HAVE THE POWER TO REVISIT THE ASSESSMENT AGAIN ON THE CONCLUDED ASSESSMENT AND CANNOT GAIN THE POWER FROM THE ORDER OF THE LD.CIT(A) WHICH IS NOT AUTHORIZED BY THE PROVISIONS OF INCOME - TAX ACT, 1 961. (3) THE APPELLANT PRAYS THAT THE ORDER OF THE LD.CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE REVENUE IN THESE APPEALS IS CHALLENGING AS TO WHETHER TH E LD.CIT(A) HAD THE POWER TO SEND THE MATTER BACK TO AS SESSING OFFICER TO DECIDE AFRESH IN VIEW OF THE PROVISIONS OF SECTION 251(1)(A) OF THE ACT. 4. AT THE TIME OF HEARING, LD. DR SUBMITTED THAT THE LD.CIT(A) HAS NO POWER TO SEND BACK THE MATTER TO THE ASSESSING OFFICER TO DECIDE AFRESH IN VIEW OF THE PROVISIONS OF SECTION 251(1)(A) OF THE ACT AND THE AMENDMENT WHICH CAME W.E.F 01.06.2001. 5. AT THE TIME OF HEARING , IT IS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE HON'BLE BOMBAY HIGH COURT STAYED THE NOTICE ISSUED U/S. 148 AND CONSEQUENTIAL PROCEEDINGS AND T HEREFO RE THE ASSESSING OFFICER MAY BE DIRECTED TO KEEP THE ASSESSMENT PROCEEDINGS PENDING TILL THE HON'BLE HIGH COURT DISPOSED OF THE WRIT PETITION (L) . 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE ORDER PASSED BY THE HON'BLE HIGH COURT IN WRIT PETITION (L) N O S . 2889 OF 2010 TO 2892 OF 2010 . ON A PERUSAL OF THE 3 ITA NO.1619, 1620 & 1621/MUM/2017 M/S. ANI ANU DEVELOPERS PVT. LTD., ASSESSMENT ORDERS, WE FIND THAT THE ASSESSMENTS FOR THE ASSESSMENT YEARS UNDER APPEAL BEFORE US NOW I.E. A.Y.2004 - 05, 2005 - 06 & 2006 - 07 WERE REOPENED U/S. 147 O F THE ACT AND THE ASSESSMENTS WERE MADE ON 28.02.2014 U/S. 143(3) R.W.S. 147 OF THE ACT. IN THESE THREE ASSESSMENT YEARS THE ASSESSING OFFICER W HILE COMPLETING THE RE - ASSESSMENTS ASSESSED DEEMED RENTAL INCOME FROM THE PROPERTY AKSHAT INDUSTRIAL ESTATE. T HE LD.CIT(A) IN VIEW OF HIS APPELLATE ORDER PASSED FOR THE ASSESSMENT YEAR 2003 - 04 , DIRECTED THE ASSESSING OFFICER TO W ORK OUT OR COMPUTE THE ANNUAL RATABLE VALUE AS PER SECTION 22 & 23 OF THE I.T. ACT . WE OBSERVED THAT W HILE PASSING ORDER FOR THE ASSESSM ENT YEAR 2003 - 04 THE LD.CIT(A) NOTICED THAT THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2007 - 08 TO 2009 - 10 IN ITA.NO. 2905, 2906 & 7728/MUM/2012 DATED 17.12.2014 RESTORED THE APPEAL S OF THE ASSESSEE TO THE FILE OF THE ASSESSING OFFICER FOR DETERMINING THE ANN UAL RATABLE VALUE AS PER PROVISIONS OF SECTION 22 & 23 OF THE I.T. ACT. FOLLOWING THIS ORDER OF THE TRIBUNAL THE LD.CIT(A) WHILE DISPOSING OFF THE APPEAL FOR ASSESSMENT YEAR 2003 - 04 DIRECTED THE ASSESSING OFFICER TO WORK OUT AND RECOMP UTE THE INCOME OF THE ASSESSEE AS PER ANNUAL RATABLE VALUE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 22 & 23 OF THE I.T. ACT. 7. NOW T HE LD.CIT(A) WHILE DISPOSING OF THE SE APPEALS FOR THE ASSESSMENT YEARS 2004 - 05 TO 2006 - 07 FOLLOWED THE ORDER OF THE TRIBUN AL 4 ITA NO.1619, 1620 & 1621/MUM/2017 M/S. ANI ANU DEVELOPERS PVT. LTD., AND HIS ORDER FOR ASSESSMENT YEAR 2003 - 04 DIRECTED THE ASSESSING OFFICER TO RECOMPUTE THE ANNUAL RATABLE VALUE AS PER SECTION 22 & 23 OF THE I.T. ACT. IN THE CIRCUMSTANCES, WE OBSERVE THAT THE LD.CIT(A) DID NOT SENT BACK THE MATTER TO THE ASSESSING OFF ICER FOR AFRESH ADJUDICATION ON HIS OWN BUT H E HAS FOLLOWED THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEARS 2007 - 08 TO 2009 - 10 AND DIRECTED THE ASSESSING OFFICER TO RECOMPUTE THE RENTAL VALUE IN ACCORDANCE WITH PROVISIONS OF SECTION 22 & 23 OF THE I.T. ACT , KEEPING IN VIEW THE ORDER OF THE TRIBUNAL. THUS, THERE IS NO VIOLATION OF PROVISIONS OF SECTION 251(1)(A) OF THE I.T. ACT. HENCE, WE SUSTAIN THE ORDER OF THE LD.CIT(A) AND REJECT THE GROUNDS RAISED BY THE REVENUE . 8. IN THE RESULT, APPEALS OF THE REVEN UE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27 TH AUGUST , 2018 SD/ - SD/ - ( R AJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 27 / 0 8 / 2018 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELL ANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM