AMAR AVINASH ASSOCIATES, MUMBAI V. DCIT CEN CIR 42, MUMBAI

ITA 1630/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92683 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 01-06-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 28-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Assessee Lawyers: PRASAD BAPAT
• Keywords: Rectification of order; Search and seizure
• Section: 143(3); 244A; 153A; 32; 132; 154

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI A BENCH , , BEFORE S/SH. I P BANSAL,JUDICIAL ME MBER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO. 1630 /MUM/2013, / ASSESSMENT YEAR - 200 3 - 04 AMAR AVINASH ASSOCIATES 5/54, MAHESH NIWAS, L.T. ROAD NO.3, GOREGAON (W) , MUMBAI - 62. PAN: AADFA 1628 D VS DCIT, CEN T RAL CIRCLE - 42 MUMBAI. ( / APPELLANT ) ( / RESPONDENT ) /ASSESSEE BY : SHRI PRASAD BAPAT / REVENUE BY :SHRI ASGHAR ZAIN / DATE OF HEARING : 01 - 0 6 - 2015 / DATE OF PRONOUNCEMENT : 01 - 0 6 - 2015 , 1961 254 ( 1 ) ORDER U/S .254(1)OF THE INCOME - TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DATED 26/12/2012 OF CIT(A) - 18, MUMBAI, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - BEING AGGRIEVED BY AN ORDER PASSED BY THE COMMISS IONER OF INCOME - TAX (APPEALS) - 18, MUMBAI U/SEC. 250 DATED 26.12.2012, YOUR APPELLANT SUBMITS THE FOLLOWING 'GROUND OF APPEAL' FOR YOUR SYMPATHETIC CONSIDERATION. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS) - 18, MUMBAI ERRED IN IGNORING THE PROVISIONS OF SEC 246A( 1)( C) AND STATING THAT THE ASSESSEE CAN NOT FILE ANY APPEAL AGAINST THE REJECTION OF RECTIFICATION APPLICATION BY AO. 2. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS A ND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) - 18, MUMBAI ERRED IN CONFIRMING ACTION OF ASSESSING OFFICER OF NOT ALLOWING INTEREST U/S. 244A ON REFUND OF RS.9,25,902/ - . ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) - 18, MUMBAI ERRED IN NOT APPRECIATING THAT AS PER SCHEME OF SECTION 244A(2) THE' AA' WAS NOT AUTHORISED TO TAKE UNILATERAL & EX - PARTE DECISION AND HENCE THE ORDER PASSED BY THE AA I S BAD IN LAW BEING WITHOUT JURISDICTION. 3. THE APPELLANT CRAVES LEAVE TO ADD/ ALTER/ AMEND/ WITHDRAW EXISTING GROUND; RAISE NEW GROUND OF APPEAL AT THE TIME OF HEARING. THE ASSESSEE - FIRM , FILED I TS RETURN OF INCOME ON 8.2.2006, DECLARING TOTAL INCOM E OF RS.25.19 LACS. THE ASSESSING OFFICER( AO ) COMPLETED THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 153A OF THE ACT ON 29.12.2006 DETERMINING THE INCOME AT RS.25,19,460/ - . 2. A SEARCH AND SEIZURE ACTION UNDER SECTION 1 32 OF THE ACT WAS CONDUCTED ON 19.11.200 4 AT THE RESIDENTIAL PREMISES OF AMAR H. MANJREKAR, BY THE INVESTIGATION WING, PUNE ,WHO IS ONE OF THE PARTNERS OF THE ASSESSEE FIRM. INCRIMINATING DOCUMENTS/ARTICLES OF THE ASSESSEE WERE FOUND AND SEIZED DURING SEARCH AND SEIZURE OPERATIONS. THE ASSESSEE FI LED AN APPLICATION U/ S . 154 OF THE ACT ITA/ 1630 /MUM/2013,AY. 0 3 - 04 - AMAR AVINASH ASSOCIATES 2 ON 7/5/2009 FOR SETTING OFF B ROUGHT FORWARD BUSINESS LOSSES. THE AO PASSED THE ORDER UNDER SECTION 154 OF THE ACT ON 20.3.2009 AND ALLOWED THE SET OFF OF BROUGHT FORWARD LOSSES OF RS. 46. 53 LACS. THE ASSESSEE FURTHER FILED AN APPLICATION FOR RECTIFICATION ORDER DT. 24/3/2009 ABOUT GRANT OF REFUND AND REDUCING INTEREST UNDER SECTION 234C OF THE ACT.VIDE HIS ORDER DT. 29/6/2009, THE AO REFUSED TO PASS RECTIFICATION ORDER AS PRAYED BY THE ASSESSEE . 3. AGGRIEVED BY THE OR DER OF THE AO, ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELL ATE AUTHORITY (FAA). BEFORE HIM, IT WAS STATED THAT REFUND OF RS.9.25 LACS WAS DUE TO THE ASSESSEE ON WHICH INTEREST UNDER SECTION 244A WAS NOT GRANTED, THAT IT HAD FILED RECTIFICATION APPLI CATION FOR GRANTING OF INTEREST UNDER SAID SECTION, THAT THE AO DENIED THE SAME WITHOUT EXAMINING ANYTHING ABOUT THE DELAY AND MENTIONING THAT TAXES WERE PAID AS PER RETURNED INCOME, THAT THERE WAS NO DELAY IN ISSUING REFUND ON ACCOUNT OF ANY LAPSES FROM THE ASSESSEES SIDE, THAT THE AO HAD NOT GRANTED OPPORTUNITY OF HEARING UNDER SECTION 244A(2) OF THE ACT, THAT HIS EX - PARTE DECISION WAS NOT AS PER PROVISIONS OF THE ACT. THE FAA DURING THE APPELLATE PROCEEDINGS ASKED THE ASSESSEE TO EXPLAIN AS TO WHETHER ANY APPEAL COULD BE FILED AGAINST THE REJECTION OF THE RECTIFICATION APPLICATION.AS PER THE FAA, THE ASSESSEE DID NOT FILE ANY REPLY IN THAT REGARD. REFERRING TO THE PROVISIONS OF THE S EC .246A OF THE ACT, THE FAA HELD THAT THE ASSESSEE COULD FILE APPEAL UND ER THE DIFFERENT SECTIONS OF THE ACT, HAT THERE WAS NO POWER WITH THE FAA TO DEAL WITH APPEAL FILED BY THE ASSESSEE, THAT THE ASSESSEE COULD NOT FILE APPEAL AGAINST REJECTION OF APPLICATION BY AO. TREATING THE APPEAL FILED BY THE ASSESSEE AS INFRUCTUOUS, HE DISMISSED IT. 4. BEFORE US,THE AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT THE FAA HAD IGNORED THE PROVISIONS OF S.246A(1)(C) OF THE ACT, THAT THE ASSESSEE WAS ENTITLED TO FILE APPEAL AGAINST THE REJECTIO N OF RECTIFICATION APPLICATION, THAT THE FAA HAD CON FIRMED THE ACTION OF THE AO OF NOT ALLOWING INTEREST UNDER SECTION 244A ON REFUND ON R S.9.25 LACS. THE D EPARTMENTAL REPRESENTATIVE (DR) SUPPORTED THE ORDER OF FAA. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT THE PRO VISIONS OF S.246A(1)(C) CLEARLY STIPULATE THAT AN APPEAL CAN BE FILED AGAINST REJECTION OF RECTIFICATION APPLICATION FILED UNDER SECTION 154 OF THE ACT. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE RESTORING BACK THE MATTER TO THE FILE OF THE FAA FOR FRES H ADJUDICATION. HE WOULD DECIDE THE APPEAL ON MERITS AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE . EFFECTIVE GROUND OF APPEAL, FILED BY THE ASSESSEE IS ALLOWED IN ITS FAVOUR IN PART. ITA/ 1630 /MUM/2013,AY. 0 3 - 04 - AMAR AVINASH ASSOCIATES 3 AS A RESULT, APPEAL FILED BY THE ASSESSEE STANDS PA RTLY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST , JUNE ,2015. 1 , 2015 SD/ - SD/ - ( /I P BANSAL) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, /DATE: 01 . 06. 2015 . . . JV . SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCER NED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI.