ACIT, CHENNAI V. M/s. Sai Siddharth Resort India Ltd., CHENNAI

ITA 1638/CHNY/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51810 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-08-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 04-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JR
• Assessee Lawyers: R PADMANABHAN
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE DR. O. K. NARAYANAN, VICE PRESIDENT AND SHRI GEORGE MATHAN, JUDICIAL MEMBER .. I.T.A. NO. 1638/MDS/2010 ASSESSMENT YEAR : 1994-95 THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-VI(1), CHENNAI. V. M/S. SAI SIDDHARTH RESORT INDIA LTD., FLAT NO. 3, I FLOOR, 18/1, INDIRA STREET, DASARATHAPURAM,SALIGRAMAM, CHENNAI-600 093. PAN : AABCS2320R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.E.B. RENGARAJAN, JR. STANDING COUNSEL RESPONDENT BY : SHRI R. PADMANABHAN, CA DATE OF HEARING : 29- 08-2011 DATE OF PRONOUNCEMENT : 29-08-2011 O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT (APPEALS)-V, CHENNAI IN ITA NO. 37/09-10 DATED 28-0 7-2010 FOR THE ASSESSMENT YEAR 1994-95. I.T.A. NO.1638/MDS.2010 2 2. SHRI K.E.B. RENGARAJAN, JR. STANDING COUNSEL REPR ESENTED ON BEHALF OF THE REVENUE AND SHRI R. PADMANABHAN, CA REPRESENTED ON BEHALF OF THE ASSESSEE. 3. AT THE TIME OF HEARING IT WAS SUBMITTED BY THE L EARNED DR THAT ORIGINALLY THE ASSESSMENT HAD BEEN COMPLETED UNDER SECTION 143(3) READ WITH SECTION147 OF THE INCOME-TAX ACT, 1961 ON 29-03-2001. IT WAS THE SUB MISSION THAT THIS ASSESSMENT ORDER WAS SUBJECT MATTER OF APPEAL BEFORE THE LEARN ED CIT(A) AND THE LEARNED CIT(A) HAD GRANTED CERTAIN RELIEF TO THE ASSESSEE. IT WAS THE SUBMISSION THAT ON APPEAL AGAINST THE SAID ORDER, THE ITAT VIDE ITS OR DER IN ITA NO. 594/MDS/2004 DATED 21-08-2007 HAD SET ASIDE THE ISSUE OF THE DEL ETION OF ` 17,80,000/- REPRESENTING THE ADDITION ON ACCOUNT OF SHARE APPLI CATION MONEY TO THE ASSESSING OFFICER FOR RE-ADJUDICATION. IT WAS THE SUBMISSION THAT AS A CONSEQUENCE OF THE ORDER OF THE TRIBUNAL, THE ASSESSMENT HAD BEEN COMP LETED UNDER SECTION 144 READ WITH SECTION 254 OF THE INCOME TAX ACT, 1961 ON 26- 12-2008. IT WAS THE SUBMISSION THAT AGAINST THE SAID ORDER, THE ASSESSE E HAD FILED AN APPEAL BEFORE THE LEARNED CIT(A) AND THE LEARNED CIT(A) HAD IN HI S ORDER IN ITA NO. 37/09-10 DATED 28-07-2010 DIRECTED THE ASSESSING OFFICER TO PASS A SPEAKING ORDER BY FOLLOWING THE DECISION OF THE TRIBUNAL AND GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY. IT WAS THE SUBMISSION THAT IT IS AGAI NST THIS ORDER THE REVENUE HAS FILED THE APPEAL. IT WAS THE FURTHER SUBMISSION TH AT AS A CONSEQUENCE OF THE ORDER OF THE LEARNED CIT(A) ANOTHER ASSESSMENT HAD BEEN COMPLETED UNDER SECTION 143(3) READ WITH SECTION 254 DATED 10-12-20 10 AND THE SAME WAS SUBJECT I.T.A. NO.1638/MDS.2010 3 MATTER OF APPEAL BEFORE THE LEARNED CIT(A). IT WAS THE SUBMISSION THAT THE LEARNED CIT(A) DID NOT HAVE THE POWER TO SET ASIDE THE ASSESSMENT. IT WAS THE SUBMISSION THAT THE ORDER OF THE LEARNED CIT(A) IS LIABLE TO BE REVERSED. 4. IN REPLY, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THE LEARNED CIT(A) HAD IN THE ORIGINAL ASSESSMENT PROCEEDINGS ITSELF C ONSIDERED THE EVIDENCES AND HAD DELETED THE ADDITION. IT WAS THE SUBMISSION TH AT THE ORDER OF THE LEARNED CIT(A) WAS LIABLE TO BE SUSTAINED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOTICED THAT IN THE PRESENT CASE THE ADDITION REPRESENTING SHARE APPLICATION MO NEY IS THE ONLY ISSUE INVOLVED. IT IS ALSO NOTICED THAT AS A CONSEQUENCE OF THE ORD ER OF THE LEARNED CIT(A), WHICH IS THE SUBJECT MATTER OF APPEAL BEFORE US, THE ASSE SSING OFFICER HAS ALREADY COMPLETED THE ASSESSMENT ON 10-12-2010 AND AN APPEA L AGAINST THE SAME HAS BEEN FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(A ). 6. IN REGARD TO THE ISSUE OF SETTING ASIDE OF THE A SSESSMENT ORDER, THE LEARNED CIT(A) HAS NOT SET ASIDE THE ASSESSMENT PER SE BUT HE HAS ONLY DIRECTED THE ASSESSING OFFICER TO PASS THE ASSESSMENT ORDER BY F OLLOWING THE ORDERS OF THE TRIBUNAL DATED 21-08-2007 AND 22-12-2008 FOR THE AS SESSMENT YEAR 1994-95 BY GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY AND EXAM INE THE GENUINENESS OF THE AMOUNT IN ACCORDANCE WITH LAW. IN THE CIRCUMSTANCE S, IT CANNOT BE SAID THAT THE LEARNED CIT(A) HAS SET ASIDE THE ASSESSMENT ORDER F OR RE-ADJUDICATION. IT IS ONLY A DIRECTION TO THE ASSESSING OFFICER TO COMPLY WITH T HE ORDER OF THE TRIBUNAL. I.T.A. NO.1638/MDS.2010 4 FURTHER IT IS NOTICED THAT, AS A CONSEQUENCE OF THE ORDER OF THE LEARNED CIT(A), FRESH ASSESSMENT HAS BEEN COMPLETED ON 10-12-2010 AND THE SAME IS SUBJECT MATTER OF APPEAL BEFORE THE LEARNED CIT(A). IN THE CIRCUMSTANCES, THE APPEAL OF THE REVENUE BECOMES INFRUCTUOUS AS THE ISSUE IN THE APPEAL IS BEFORE THE LEARNED CIT(A) IN THE APPEAL FILED AGAINST THE ASSESSMENT O RDER DATED 10-12-2010 FOR THE ASSESSMENT YEAR 1994-95. IN THE CIRCUMSTANCES, THE APPEAL OF THE REVENUE IS DISMISSED AS INFRUCTUOUS. 7. THE ORDER WAS PRONOUNCED IN THE COURT ON 29/08/2 011. SD/- SD/- (DR. O. K. NARAYANAN) (GEORGE MATHAN) VICE PRESIDENT JUDICIAL MEMBER CHENNAI, DATED THE 29 TH AUGUST, 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE