ACIT, Ooty V. M/s. Mithun Hotels Pvt Ltd., Ootacamund

ITA 1741/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58097 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-03-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 01-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R B NAIK
• Assessee Lawyers: MEENAKSHI SUNDARAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH B CHENN AI BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER .. ITA NO.1741/MDS./2011 ASSESSMENT YEAR:2007-08 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-I, OOTY. VS. M/S.MITHUN HOTELS PVT. LIMITED, NO.1,HAVELOCK ROAD, OOTACAMUND 643 001. PAN AAACM 3112 G (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI R.B.NAIK C.I.T. DR ASSESSEE BY : SHRI MEENAKSHI SUNDARAM ADVOCATE DATE OF HEARING : 08.03.12 DATE OF PRONOUNCEMENT : 16. 03.12 O R D E R PER GEORGE MATHAN JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (A) I, COIMBATORE IN AP PEAL NO.42/10-11 DATED 15.07.2011 FOR ASSESSMENT YEAR 20 07-08. SHRI R.B.NAIK, LD.C.I.T. DR REPRESENTED ON BEHALF O F THE REVENUE AND SHRI MEENAKSHI SUNDARAM, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. ITA. 1741/MDS/11 2 2. AT THE TIME OF HEARING, IT WAS SUBMITTED BY LD. AR THAT LD. C.I.T.(A) HAD DECIDED THE APPEAL OF THE ASSESSE E ON TWO ISSUES, BEING ONE IN REGARD TO THE JURISDICTION AND SECOND ON MERITS. IT WAS THE SUBMISSION THAT BOTH ON JURISDIC TION AS WELL AS ON MERITS, THE APPEAL OF THE ASSESSEE HAD BEEN H ELD IN FAVOUR OF THE ASSESSEE. IT WAS THE SUBMISSION THAT REVENUE HAS FILED THE APPEAL ONLY AGAINST THE ADDITIONS, WH ICH HAD BEEN DELETED BY THE C.I.T.(A) ON MERITS. IT WAS THE SUBM ISSION THAT IN REGARD TO THE ORDER OF THE C.I.T.(A) HOLDING THE OR DER PASSED BY THE ASSESSING OFFICER WAS INFRUCTUOUS, NO APPEAL HA S BEEN FILED. IT WAS THE SUBMISSION THAT CONSEQUENTLY THE DECISION IN THE APPEAL OF REVENUE WOULD ONLY BE ACADEMIC IN NAT URE AS THE ASSESSMENT ORDER REMAINS INFRUCTUOUS. IN REPLY , LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. IT WAS THE SUBMISSION THAT THE ASSESSMENT HAD BEEN COM PLETED U/S.144 ON ACCOUNT OF THE NON CO-OPERATION BY THE A SSESSEE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. PERUS AL OF THE ORDER OF THE C.I.T.(A) SHOWS THAT LETTERS HAD B EEN FILED WITH THE ASSESSING OFFICER AT BOMBAY POINTING OUT TO THE FACT THAT THE JURISDICTION OVER THE ASSESSEE WAS WITH THE INC OME TAX DEPARTMENT, OOTY AND THE ASSESSEE HAS NO PLACE OF B USINESS ITA. 1741/MDS/11 3 AT BOMBAY. IT IS ALSO NOTICED THAT A COPY OF THE A SSESSMENT ORDER FOR ASSESSMENT YEAR 2002-03 WAS ALSO FILED AT BOMBAY, WHICH SHOWED THE ASSESSMENT WAS DONE BY THE ASSESSI NG OFFICER AT OOTY AND THE FILES HAD BEEN TRANSFERRED TO OOTY. FURTHER, PERUSAL OF THE ORDER OF THE C.I.T.(A) SHOW S THAT THE REGISTERED OFFICE OF THE ASSESSEE WAS TRANSFERRED T O OOTY FROM BOMBAY WITH THE APPROVAL OF THE COMPANY LAW BOARD V IDE BOARD LETTER DATED 08.07.2002 AND FROM THE ASSESSME NT YEAR 2001-02 TO 2006-07, THE ASSESSEES INCOME TAX ASSES SMENTS WERE COMPLETED BY THE ASSISTANT COMMISSIONER OF INC OME TAX, OOTY. IT IS ALSO NOTICED THAT LD. C.I.T.(A) H AD TAKEN INTO CONSIDERATION THE FACT THAT THE RETURN FOR THE ASSE SSMENT YEAR 2007-08 WAS ALSO FILED ELECTRONICALLY WITH THE ASSE SSING OFFICER AT OOTY. IT IS ALSO NOTICED THAT THE ASSESSEE COMP ANY HAD WRITTEN TO DCIT, MUMBAI ON 24.08.2009 AND 15.10.20 09 REQUESTING FOR THE TRANSFER OF THE FILE TO THE OOTY . IT IS NOTICED THAT AFTER CONSIDERING ALL THE FACTS, LD. C.I.T.(A) HAS HELD THAT THE ASSESSING OFFICER AT MUMBAI, WHO HAS PASSED TH E ASSESSMENT ORDER, HAS NO JURISDICTION TO PASS THE A SSESSMENT ORDER AND HAD CONSEQUENTLY HELD THE ASSESSMENT ORDE R AS INFRUCTUOUS. IT IS ALSO NOTICED THAT LD. C.I.T.(A) HAS DECIDED THE APPEAL OF THE ASSESSEE ON MERITS. PERUSAL OF THE AP PEAL FILED ITA. 1741/MDS/11 4 BY THE REVENUE BEFORE US SHOWS THAT THE REVENUE HAS NOT CHALLENGED THE QUESTION OF JURISDICTION, WHICH HAS BEEN DECIDED BY THE C.I.T.(A). THOUGH THE ISSUES IN RE GARD TO THE MERITS HAVE BEEN RAISED, AS IT IS NOTICED THAT THE ASSESSMENT ORDER HAS BEEN HELD TO BE INFRUCTUOUS BY THE C.I.T. (A) AND THAT HAS NOT BEEN CHALLENGED, THE ASSESSMENT ORDER NO MO RE EXISTS AND CONSEQUENTLY, THE QUESTION OF GOING INTO THE ME RITS OF THE ADDITION COULD NOT ARISE. IN THE CIRCUMSTANCES, AS THE ISSUE OF JURISDICTION DECIDED BY THE C.I.T.(A) HAS BEEN ACCE PTED BY THE REVENUE, THE APPEAL FILED BY THE REVENUE IS HELD TO BE INFRUCTUOUS AND DISMISSED AS SUCH. IN THE CIRCUMST ANCES, THE APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON 16 TH MARCH, 2012. SD/- SD/- ( N.S.SAINI ) (GEORGE MATHAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 16 TH MARCH, 2012. K S SUNDARAM COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE