Yamuna alloys Ltd, V. ACIT Circle,

ITA 1721/DEL/2007

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9831 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 06-08-2009
• Assessment Year: 1996-1997
• Appeal Filed On: 09-04-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Keywords: Set aside
• Section: 254(2); 148

Judgement Text

I.T.A. NO.1721 /DEL/07 1/4 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I NEW DELHI) BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.1721 /DEL/2007 ASSESSMENT YEAR : 1996-97 M/S YAMUNA ALLOYS LTD., ACIT, 44-MISSION COMPOUND, CIRCE, SAHARANPUR, SAHARANPUR. V. SAHARANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : MRS. ANUSHA KHURANA, SR. DR. ORDER PER A.K. GARODIA, AM: THIS IS AN ASSESSEE'S APPEAL DIRECTED AGAINST THE O RDER OF LD CIT (A), MUZAFFANAGAR DATED 14.2.2007 FOR ASSESSMENT YEAR 19 96-97. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER :- 1. THAT THE STATUTORY NOTICE U/S 148 OF IT ACT, WAS NEITHER ADDRESSED TO THE PRINCIPAL OFFICER OF THE COMPANY NOR SERVED ON THE PRINCIPAL OFFICER OR ANY AUTHORIZED AGENT OF THE APPELLANT COMPANY. THE PROC EEDINGS U/.S 147/`148 OF THE IT ACT THUS WERE VITIATED AND DESER VE TO BE QUASHED. 2. THAT THE SERVICE OF STATUTORY NOTICE U/S 148 OF IT ACT WAS EFFECTED ON HARDARI LAL, CHOWKIDAR EMPLOYED BY SHRI MMS RANA, M ANAGING DIRECTOR OF THE COMPANY AT THIS RESIDENCE. THE SERVICE OF ST ATUTORY NOTICE ON THE CHOWKIDAR WHO WAS NOT AN AUTHORIZED REPRESENTATIVE OF THE COMPANY THUS . I.T.A. NO.1721/DEL/07 2/4 NOT BEING IN ACCORDANCE WITH STATUTORY PROVISIONS O F SEC. 282 OF IT ACT ON FACTS AND IN LAW ALL THE SUBSEQUENT PROCEEDINGS, RE SULTING IN AN ASSESSMENT WERE VITIATED, VOID AND WITHOUT JURISDI CTION AND DESERVE TO BE QUASHED ANNULLED. 3. THAT THE LEGAL ISSUE HAD BEEN ADJUDICATED UPON B Y THE HON'BLE TRIBUNAL IN THE APPELLATE ORDER AND ALSO MISC. ORDER U/S 254(2) OF IT ACT. THE MATTER WAS RESTORED TO THE LD CIT(A) ON SPECIFIC POINT AS CONTAINED IN THE APPELLATE ORDER. THE LD CIT(A) THUS WAS ONLY TO DEC IDE THE SPECIFIC ISSUE AS PER DIRECTION OF THE HON'BLE TRIBUNAL CONTAINED IN THE APPELLATE ORDER. ADJUDICATION AND CONCLUSIN DRAWN AND THE FINDING RE CORDED BY THE LD CIT(A) AS CONTAINED IN PARAGRAPH 4.3. & 5 OF THE AP PELLATE ORDER WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. THE ADVERSE FINDINGS RECORDED DESERVE TO BE QUASHED BEING VOID AND WITHOUT JURISD ICTION. 4. THAT THE LD CIT(A) EXCEEDED HIS JURISDICTION IN ADJUDICATING THE ISSUE WHICH WAS NOT REQUIRED TO BE ADJUDICATED UPON AND A DJUDICATING THE ISSUE NOT REQUIRED TO BE ADJUDICATED AS ALREADY ADJUDICAT ED BY THE HON'BLE TRIBUNAL. THUS, THE LD CIT(A) PROLONGED LITIGATION AND THUS ON FACTS AND IN LAW, THE APPELLANT DESERVES TO BE AWARDED COST. 3. IT HAS BEEN SUBMITTED BY THE LD COUNSEL OF THE A SSESSEE THAT IN THE FIRST ROUND, THE TRIBUNAL HAS DECIDED THE APPEAL AS PER I .T.A. NO. 776/DEL/2004 AND C.O. NO. 51/DEL/2005 DATED 28.6.2005. HE SUBMITTED A COPY OF THE TRIBUNAL DECISION AND IT WAS POINTED OUT THAT AS PER PARA NO .10.3 OF THIS TRIBUNAL ORDER, WHILE DECIDING THE REVENUES APPEAL, THE TRIBUNAL H AS SET ASIDE THE ORDER OF LD CIT(A) ON MERIT AND RESTORED THE MATTER BACK TO THE FILE OF LD CIT(A) WHO WAS DIRECTED TO EXAMINE THE RELEVANT MATERIAL AND TO DE CIDE THE ISSUE AFRESH AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. IT IS ALSO SUBMITTED THAT WHILE DECIDING THE CROSS OBJECTION O F THE ASSESSEE AS PER PARA NO.16 OF THE TRIBUNAL DECISION, THE TRIBUNAL HAS RE STORED BACK THE MATTER TO THE FILE OF LD CIT(A) TO DECIDE AFRESH THE VALIDITY OF REOPENING AFTER EXAMINING THE RELEVANT FACTS. IT IS SUBMITTED THAT AS PER THE IMP UGNED ORDER DATED 14.2.2007, LD . I.T.A. NO.1721/DEL/07 3/4 CIT(A) HAS DECIDED THE ISSUE WITH REGARD TO VALIDIT Y OF REOPENING WHICH HAS BEEN RESTORED BACK BY THE TRIBUNAL TO LD CIT(A) AS PER P ARA NO.16 & 17 OF THE EARLIER ORDER BUT THE ISSUE ON MERIT, WHICH WAS ALSO RESTOR ED BACK TO THE FILE OF LD CIT(A) AS PER PARA NO.10.3 OF THE EARLIER ORDER IS STILL P ENDING WITH LD CIT(A) AND HENCE, EITHER THE PRESENT APPEAL BE KEPT PENDING TILL THE ORDER OF LD CIT(A) ON THIS ISSUE OR THE MATTER MAY BE RESTORED BACK TO THE FILE OF T HE LD CIT(A) FOR A FRESH DECISION SIMULTANEOUSLY WITH THE DECISION ON MERIT. LD DR OF THE REVENUE SUPPORTED THE ORDER OF THE LD CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD AND THE EARLIER ORDER OF THE TR IBUNAL DATED 28.6.2005. WE FIND THAT AS PER THIS TRIBUNAL ORDER, LD CIT(A) WAS DIRE CTED TO DECIDE AFRESH BOTH THE ISSUES I.E. THE ISSUE REGARDING VALIDITY OF REOPENI NG AND ALSO THE ISSUE ON MERIT REGARDING THE ADDITION OF RS.6,79,280/- DELETED BY THE LD CIT(A) OUT OF TOTAL ADDITION OF RS.7,77,030/-.WE ALSO FIND THAT AS PER THE IMPUGNED ORDER DATED 14.2.2007, LD CIT(A) HAS DECIDED AFRESH ONLY ONE IS SUE I.E. VALIDITY OF REOPENING AND THERE IS NO DISCUSSION IN THIS ORDER REGARDING THE ADDITION ON MERIT WHICH WAS ALSO RESTORED BACK BY THE TRIBUNAL TO THE FILE OF L D CIT(A). UNDER THIS FACTUAL POSITION, WE FEEL THAT LD CIT(A) SHOULD HAVE PASSED A CONSOLIDATED ORDER FOR BOTH THE ISSUES AND HENCE WE SET ASIDE THE ORDER OF LD C IT(A) AND RESTORE THIS MATTER BACK TO HIS FILE FOR A FRESH DECISION SIMULTANEOUSL Y ON BOTH THE ISSUES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES, 6. ORDER PRONOUNCED IN THE OPEN COURT ON 21ST A UGUST, 2009. SD/- SD/- (I.P. BANSAL) (A.K. GARODI A) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 21 .8.2009. HMS . I.T.A. NO.1721/DEL/07 4/4 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).