JP Jai Land and Building Promoters Pvt Ltd., CHENNAI V. DCIT, CHENNAI

ITA 1721/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8926 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 12-04-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 27-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R DURAI
• Assessee Lawyers: S SRIDHAR
• Keywords: Reopening of assessment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . ! ' , #'$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NOS.1720 /MDS/2015 # % &% / ASSESSMENT YEARS : 2001-02 SHRI. S. RAMESH, PROP. RAMESH TRADERS, NO.30B, VELLALA STREET, ARIYALUR 621 713 [PAN AADPR 3870J] VS. THE INCOME TAX OFFICER, WARD IV (2) TIRUCHY, ( / APPELLANT) ( /RESPONDENT) ./ I.T.A. NOS.1722 /MDS/2015 # % &% / ASSESSMENT YEARS : 2001-02 SHRI. P. SIVAKUMAR, PROP. RAMESH CORPORATION, NO.8, NADU, AGRAHARAM, ARIYALUR 621 713. VS. THE INCOME TAX OFFICER, WARD IV (2) TIRUCHY [PAN ABFPS 2908D] ( / APPELLANT) ( /RESPONDENT) '( ) * / APPELLANT BY : SHRI. S. SRIDHAR, ADVOCATE +,'( ) * /RESPONDENT BY : SHRI. R. DURAI PANDIAN, JCIT. ! ) - / DATE OF HEARING : 29-09-2016 ./& ) - / DATE OF PRONOUNCEMENT : 30-09-2016 ITA NO.1720 & 1722/2015. :- 2 -: / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THESE APPEALS FILED BY THE ASSESSEES ARE DIRECTE D AGAINST DIFFERENT ASSESSEE ORDERS OF THE COMMISSIONER OF IN COME-TAX (APPEALS), CHENNAI FOR THE ASSESSMENT YEAR 2001-2002 PASSED U /S.143(3) AND 250 OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFE RRED TO AS THE ACT). SINCE THE ISSUES IN THESE APPEALS ARE COMMON IN NATURE, THESE APPEAL S ARE CLUBBED, HEARD TOGETHER, AND DISPOSED OF BY THI S COMMON ORDER FOR THE SAKE OF CONVENIENCE, FIRST, WE TAKE UP APPEAL I N ITA NO.1720/MDS/2015, ASSESSMENT YEAR 2001-2002 FOR ADJ UDICATION. 2. THE ASSESSEE HAS RAISED GROUNDS ON CHALLENGING VA LIDITY OF RE-ASSESSMENT PROCEEDINGS AND ACTION OF THE LD. CO MMISSIONER OF INCOME TAX (APPEALS) GIVING DIRECTIONS TO REOPEN TH E ASSESSMENT AND EXCEEDED HIS POWERS WHILE EXERCISING JURISDICTION. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S A PROPRIETOR AND IN THE BUSINESS OF WHOLESALE AND RET AIL SELLING OF CYCLE SPARE PARTS, HARDWARE, PVC ITEMS AND FILED RETURN OF INCOME ON 09.10.2001 ALONGWITH TAX AUDIT REPORT WITH TOTAL IN COME OF ?1,29,680/- AND ALSO OFFERED AGRICULTURAL INCOME OF ?40,000/-. THE RETURN WAS PROCESSED U/S.143(1) OF THE ACT. THERE WAS A SURVE Y OPERATIONS U/S.133A OF THE ACT ON 04.03.2004 AND THE ASSESSEE HAS AGREED TO OFFER UNDISCLOSED INCOME FOR THE ASSESSMENT YEARS 2001-02 TO 2003-04 AND ITA NO.1720 & 1722/2015. :- 3 -: ALSO PAID ?1,50,000/- TOWARDS TAXES AND FURNISHED D ETAILED WORKING AND THE ASSESSMENT WERE COMPLETED ON 21.05.2004. AGGRIE VED, THE ASSESSEE FILED AN APPEAL AND THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE SUBMISSIONS, GROUNDS AND OBSERVED ON THE DISCLOSURE OF INCOME FOR THREE ASSESSMENT YEARS AND FURTHER DIREC TED THE LD. ASSESSING OFFICER TO REOPEN THE ASSESSMENT FOR THE ASSESSMENT YEAR 2001-02 IN RESPECT OF UNDISCLOSED INCOME OF PREVIOUS YEAR OF 3 1.03.2001. SO, THE LD. ASSESSING OFFICER BASED ON COMMISSIONER OF INCO ME TAX (APPEALS) DIRECTIONS HAS REOPENED THE ASSESSMENT U/S.147 OF THE ACT AND ISSUED NOTICE U/S.148 OF THE ACT. THE ASSESSEE FILED RETUR N OF INCOME ON 29.03.2006 WITH THE SAME INCOME AS DISCLOSED IN THE ORIGINAL RETURN AND REQUESTED FOR REASONS OF REOPENING AND THE LD. AUTHORISED REPRESENTATIVE FILED OBJECTIONS FOR REASONS OF RE- ASSESSMENT AS IN VALID AND NO NEW INFORMATION OR FRESH MATERIAL IS AVAI LABLE WITH THE LD. ASSESSING OFFICER OR THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) AND RELIED ON THE JUDICIAL DECISIONS. BUT THE LD. ASSE SSING OFFICER BASED ON THE RELEVENT INFORMATION AND DIRECTIONS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS RELIED ON THE JUDICIAL DE CISIONS AND WORKED OUT ADDITIONS AND COMPLETED ASSESSMENT U/S.143(3) R .W.S 147 OF THE ACT DATED 27.12.2006 WITH ASSESSED INCOME OF ? 5,41,36 0/-. AGGRIEVED BY THE ORDER, THE ASSESSEE FILED AN APPEAL BEFORE COMM ISSIONER OF INCOME TAX (APPEALS). ITA NO.1720 & 1722/2015. :- 4 -: 4. IN THE APPELLATE PROCEEDINGS, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) PASSED ORDER DATED 13.04.2015 UPHOLD ING THE RE- ASSESSMENT PROCEEDINGS AND PARTLY ALLOWED THE APPEA L. AGGRIEVED BY THE COMMISSIONER OF INCOME TAX (APPEALS) ORDER, THE ASSESSEE HAS ASSAILED AN APPEAL BEFORE THE TRIBUNAL. 5. BEFORE US, LD. AUTHORISED REPRESENTATIVE ARGUED THE GROUNDS AND EXPLAINED THAT REOPENING OF ASSESSMENT BY THE LD. ASSESSING OFFICER BASED ON THE DIRECTIONS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND ALSO THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) EXCEEDED HIS POWERS IN ISSUING OF SUCH DI RECTIONS. FURTHER, THE LD. AUTHORISED REPRESENTATIVE SUPPORTED HIS CASE WI TH THE TRIBUNAL ORDER ALLOWED IN FAVOR OF THE ASSESSEE ON VALIDITY OF RE -ASSESSMENT PROCEEDINGS AND PRAYED FOR ALLOWING THE APPEAL. 6. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIE D ON THE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND VEHEMENTLY OPPOSED TO THE GROUNDS 7. WE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATER IAL ON RECORD AND JUDICIAL DECISIONS. THE LD. AUTHORISED REPRESENTATIVE CONTENTION PRIME FACIE THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS EXCEEDED HIS POWERS IN DIRECTING THE LD. ASSESSING OFFICER ITA NO.1720 & 1722/2015. :- 5 -: FOR REOPENING OF ASSESSMENT. IN ASSESSEES OWN CAS E IN ITA NO.762 & 763/2006, DATED 12.08.2008 FOR THE ASSESSMENT YEARS 2002-03 AND 2003-04 WERE THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS PASSED AN ORDER AS UNDER:- 2. THE ONLY ISSUE, REQUIRING ADJUDICATION IN THESE FOUR APPEALS, RELATES TO THE DIRECTIONS GIVEN BY THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) IN PARAGRAPH (9.1) ON HIS IMPU GNED ORDER AS UNDER:- 9.1. . THE INCOME RELATING TO ASSESSMENT YEAR 2001-02 SHOULD BE ASSESSED IN THE SAME YEAR I. E. ASSESSING OFFICER IS DIRECTED TO REOPEN THE ASSESSM ENT FOR ASSESSMENT YEAR 2001-02 AND ASSESSS THE INCOME OF ASSESSMENT YEAR 2001-02 IN THAT YEAR ONLY. 3. IT WAS POINTED OUT BY SHRI.SRIDHAR, THE LD. AR THAT THE ABOVE ISSUE WAS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. T.A. KRISHNASWAMY (2008) 2 DTR (MAD) 143. IN THIS CASE, THE COURT HELD AS UNDER:- COMMISSIONER OF INCOME TAX (APPEALS) HAS NO POWER TO GIVE DIRECTION TO ASSESSING OFFICER TO REO PEN THE ASSESSMENT OF ANOTHER YEAR. THE FACTS OF THE CASE IN THE PRESENT APPEAL ARE IDE NTICAL, AND THEREFORE, WE RESPECTFULLY FOLLOW THE PRECEDENT AND DECIDE THE ABOVE ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST T HE DEPARTMENT. THE PRESENT APPEAL WAS FILED AGAINST THE ORDER OF T HE COMMISSIONER OF INCOME TAX (APPEALS) BASED ON THE ASSESSMENT U/S.1 43(3) AND 147 DATED 27.12.2006 WERE THE ASSESSING OFFICER HAS CON SIDERED THE DIRECTIONS OF REOPENING OF ASSESSMENT ISSUED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN HIS ORDER. SINCE CO-ORDINA TE BENCH OF THE TRIBUNAL HAS ALLOWED THE APPEAL IN FAVOUR OF THE AS SESSEE BASED ON THE ITA NO.1720 & 1722/2015. :- 6 -: JURISDICTIONAL HIGH COURT DECISION, WE RESPECTFULLY , FOLLOW THE SAME WHERE THE JURISDICTIONAL HIGH COURT HAS HELD THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NO POWER TO GIVE DIRECT ION TO THE LD. ASSESSING OFFICER TO RE-OPEN THE ASSESSMENT OF ANOT HER YEAR. CONSIDERING THE APPARENT FACTS, CO-ORDINATE BENCH DECISION, WE ALLOW THE GROUNDS OF THE ASSESSEE. THE APPEAL OF THE ASSESSEE IS ALLO WED . 8. SIMILARLY, THE APPEAL OF THE ASSESSEE IN ITA NO.1722/MDS/2015 IS ALSO ALLOWED. 9. IN THE RESULT, THE APPEALS OF THE ASSE SSEE IN ITA NOS. 1720 & 1722/MDS/2015 ARE ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE 30TH DAY OF SEP TEMBER, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ' ) (G. PAVAN KUMAR) / JUDICIAL MEMBER / CHENNAI 1 / DATED: 30.09.2016 KV 2 ) +#-34 54&- / COPY TO: 1 . '( / APPELLANT 3. ! 6- () / CIT(A) 5. 4 9: +#-# / DR 2. +,'( / RESPONDENT 4. ! 6- / CIT 6. :% ; / GF