DCIT, CHENNAI V. M/s. Neyveli Lignite Corporation Ltd., Neyveli

ITA 1760/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64524 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-11-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 04-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOB IRS
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER I.T.A.NO. 1760/MDS/2011 ASSESSMENT YEAR : 2003-04 THE DEPUTY COMMISSIONER OF INCOME-TAX, LARGE TAXPAYER UNIT, CHENNAI 600 101. VS. M/S. NEYVELI LIGNITE CORPORATION LTD., BLOCK-7, CORPORATE OFFICE, NEYVELI 607 801. PAN AAACN1121C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHAJI P. JACOB, IRS, ADDL.CIT RESPONDENT BY : SHRI R. VIJAYARAGHAVAN, A DVOCATE DATE OF HEARING : 7 TH NOVEMBER, 2012 DATE OF PRONOUNCEMENT : 7 TH NOVEMBER, 2012 O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT THIS APPEAL IS FILED BY THE REVENUE. THE RELEVANT ASSESSMENT YEAR IS 2003-04. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS), L ARGE TAXPAYER UNIT, AT CHENNAI DATED 8.8.2011 AND ARISES OUT OF THE ASSESSMENT COMPLETED UNDER SEC.143(3)(3), READ WITH SEC.147 OF THE INCOME-TAX ACT, 1961. ITA 1760/11 :- 2 -: 2. THE GROUNDS RAISED IN THE PRESENT APPEAL BY THE REVENUE READ AS FOLLOWS: 2.1 THE CIT(A) ERRED IN HOLDING THAT THE REASSESSMENT PROCEEDINGS WERE NOT VALID. 2.2 THE CIT(A) OUGHT TO HAVE FOLLOWED THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF CONSULTANT PHOT O FINVEST INC (281 ITR 394) WHEREIN IT WAS HELD THAT THERE MAY BE A RESUMPTION THAT THE ASSESSMENT PROCEEDINGS HAS BEEN GENERALLY CONDUCTED BUT THERE CAN BE NO PRESUMPTION THAT WHEREVER THE ASSESSMENT ORDER IS SILENT, ALL POSSIBLE ANGLES AND ASPECTS OF CONTROVE RSY HAS BEEN EXAMINED AND DETERMINED BY THE ASSESSING OFFICER. 2.3 THE CIT(A) OUGHT TO HAVE FOLLOWED THE DECISION OF THE SUPREME COURT IN THE CASE OF ACIT V. RAJESH JHA VERI STOCK BROKERS P LTD. (291 ITR 500) AND THAT OF THE DELHI HIGH COURT IN THE CASE OF DLWAKAR ENGINEERS LTD. VS . ITO (187 TAXMAN 327). 2.4 THE CIT(A) OUGHT TO HAVE FOLLOWED THE DECISIO N OF THE DELHI HIGH COURT IN THE CASE OF DALMIA PVT. LTD . VS. CIT (WP (CIVIL) NO. 6205/2010 DATED 26.9.2011) WHER E IT ITA 1760/11 :- 3 -: WAS HELD THAT DESPITE SPECIFIC AND POINTED QUERIES IN SECTION 143(3) ASSESSMENT, THE ASSESSING OFFICER CA NNOT BE SAID TO HAVE FORMED ANY OPINION IF EXPLICIT OPIN ION IS NOT RECORDED. 3. WE HEARD SHRI SHAJI P. JACOB, THE LEARNED COMMIS SIONER OF INCOME-TAX APPEARING FOR THE REVENUE AND SHRI R. VIJAYARAGHAVAN, THE LEARNED COUNSEL APPEARING FOR T HE RESPONDENT-ASSESSEE. THE ORDER PASSED BY THE COMMI SSIONER OF INCOME-TAX(APPEALS) IS FAIRLY SUPPORTED BY THE JUDG MENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V. KELVINA TOR OF INDIA LTD. (320 ITR 561). IN THE PRESENT CASE, THE ASSES SMENT HAS BEEN REOPENED AFTER FOUR YEARS. THE ORIGINAL ASSES SMENT WAS COMPLETED UNDER SEC.143(3). ALL THE NECESSARY PART ICULARS WERE FURNISHED BY THE ASSESSEE. THEREFORE, THE REASON O F REOPENING OF THE ASSESSMENT IS NOTHING BUT CHANGE OF OPINION. T HE ABOVE SAID DECISION OF THE HONBLE SUPREME COURT DOES NOT APPR OVE SUCH A GROUND TO REOPEN AN ASSESSMENT. THE DECISION OF TH E HONBLE SUPREME COURT IN THE CASE OF CIT V. FORAMER FRANCE (264 ITR 566) SUPPORTS THE ABOVE LEGAL PROPOSITION. THE HON BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. PREMIER MILLS (29 6 ITR 157), HAS HELD THAT THE ASSESSING OFFICER MUST RECORD AS TO H OW THERE WAS A ITA 1760/11 :- 4 -: FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MAT ERIAL FACTS. IN THE PRESENT CASE, NO SUCH RECORDING HAS BEEN MADE B Y THE ASSESSING OFFICER. THIS SHOULD BE FOR THE REASON T HAT THE ASSESSEE HAD FURNISHED THE DETAILS AND THEREFORE, T HE EARLIER ASSESSMENT WAS COMPLETED UNDER SEC.143(3). THE HON BLE MADRAS HIGH COURT HAS HELD THE SAME VIEW IN THE CAS E OF CIT VS. ELGI FINANCE LTD. (286 ITR 674). 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE F IND THAT THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) IS JUSTIFIED AND THE APPEAL FILED BY THE REVENUE IS LIABLE TO BE DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON WEDNESDAY, THE 7 TH OF NOVEMBER, 2012 AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) (DR.O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 7 TH NOVEMBER , 2012 MPO* COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR