DCIT CIR 5(3)(1), MUMBAI V. SOUTH SEAS DISTILLERIES & BREWERIES LTD, MUMBAI

ITA 1744/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1105 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 15-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 25-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDHE LD
• Assessee Lawyers: KRUPA P TOPRANI LD
• Section: 143(3); 263

Judgement Text

ITA NO.1744/M/2015 SOUTH SEAS DISTILLERIES & BREWERIES LIMITED ASSESSMENT YEAR 2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 1744/MUM/2015 ( / ASSESSMENT YEAR: 2008-09) ASSTT. C O MMISSIONER OF INCOME TAX 5(3) ROOM NO. 573, AAYKAR BHAVAN M.K.ROAD MUMBAI 400 020 / VS. SOUTH SEAS DISTILLERIES & BREWERIES LIMITED. A-103 ,1 ST FLOOR AVISHKAR, 36,KHATAWADI NAUSHIR BHARUCHA MARG OPP. RAILWAY STATION GRANT ROAD(W) MUMBAI-400 007 ./ ./PAN/GIR NO. AABCS-4534-M ( /APPELLANT ) : ( !' / RESPONDENT ) A SSESSEE BY : KRUPA P. TOPRANI, LD. AR RE VENUE BY : VISHWAS MUN DHE, LD. DR / DATE OF HEARING : 04/05/2017 / DATE OF PRONOUNCEMENT : 04/05/2017 ITA NO.1744/M/2015 SOUTH SEAS DISTILLERIES & BREWERIES LIMITED ASSESSMENT YEAR 2008-09 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMEN T YEAR [AY] 2008- 09 ASSAILS THE ORDER OF LD. COMMISSIONER OF INCOM E TAX (APPEAL)-10, [CIT(A)], MUMBAI DATED 13/01/2015 ARISING OUT OF TH E ORDER OF LD. ASSESSING OFFICER [AO] ORDER DATED 14/10/2013 PASSE D U/S143(3) READ WITH SECTION 263 OF INCOME TAX ACT, 1961. THE REVENUE IS AGGRIE VED BY RELIEF PROVIDED TO THE ASSESSEE U/S 40(A)(IA) BY TH E LD. CIT(A). 2. FACTS AS EMANATING FROM THE RECORDS ARE THA T THE ASSESSEE, BEING RESIDENT CORPORATE ASSESSEE, WAS SUBJECTED TO REVIS IONAL JURISDICTION U/S 263 VIDE LD. CIT ORDER DATED 21/02/2013 FOR IMPUGNE D AY AND CONSEQUENTLY ASSESSED AT RS.4,03,90,235/- IN AN ORD ER U/S 143(3) READ WITH SECTION 263 AS AGAINST RS.3,53,43,226/- DETERMINED IN AN ASSESSMENT U/S 143(3). THE ASSESSEE SUFFERED DISALL OWANCE U/S 40(A)(IA) FOR RS.67,29,345/-, WHICH UPON APPEAL, HA S BEEN DELETED BY LD. CIT(A) VIDE IMPUGNED ORDER DATED 13/01/2015 BY NOTI NG THAT SECTION- 263 ORDER PASSED BY LD. CIT HAS BEEN QUASHED BY THE TRIBUNAL VIDE ITS ORDER DATED 11/12/2014 AND SINCE SECTION 263 ORDER HAS NOT SURVIVED, CONSEQUENTIAL ASSESSMENT PASSED IN PURSUANCE TO THE SAME ALSO DO NOT SURVIVE AND THEREFORE, DISMISSED ASSESSEES APPEAL BEING INFRUCTUOUS. 3. AT THE OUTSET, THE LD. COUNSEL FOR ASSESSEE [AR] DREW OUR ATTENTION TO THE FACT THAT SECTION 263 ORDER PASSED BY THE LD . CIT HAS BEEN QUASHED BY THE TRIBUNAL VIDE ITA NO. 2170/MUM/2013 ORDER DATED 11/12/2014 AND LD. CIT(A) RIGHTY NOTING THE SAID OR DER, DISMISSED THE ITA NO.1744/M/2015 SOUTH SEAS DISTILLERIES & BREWERIES LIMITED ASSESSMENT YEAR 2008-09 3 ASSESSEES APPEAL, BEING INFRUCTUOUS . THE LD. DR FAIRLY CONCEDED THE SAME. 4. WE HAVE PERUSED THE MATERIAL ON RECORD AND THE C ITED TRIBUNAL ORDER. WE FIND THAT SECTION 263 ORDER HAS BEEN QUAS HED BY THE TRIBUNAL AND THEREFORE, LD. CIT(A) RIGHTFULLY FOLLOWING THE SAME DISMISSED THE ASSESSEES APPEAL, BEING INFRUCTUOUS IN NATURE BY N OTING THAT AS SECTION 263 ORDER DO NOT SURVIVE, THE CONSEQUENTIAL ASSESSM ENT MADE THEREUPON DO NOT SURVIVE. THEREFORE, WE FIND THE IM PUGNED APPEAL, BEING A FRIVOLOUS APPEAL ONLY AND THEREFORE DISMISS THE SAME. 5. IN NUTSHELL, THE REVENUES APPEAL STANDS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04TH MAY, 201 7. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 04 .05.2017 SR.PS:- THIRUMALESH ITA NO.1744/M/2015 SOUTH SEAS DISTILLERIES & BREWERIES LIMITED ASSESSMENT YEAR 2008-09 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. ) ( ) / THE CIT(A) 4. ) / CIT CONCERNED 5. !$, , , , / DR, ITAT, MUMBAI 6. -. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI