NITIN CHANDRAKANT DESAI, MUMBAI V. ACIT 11(1), MUMBAI

ITA 2006/MUM/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84326 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 26-11-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 24-03-2014
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA YADAV SR
• Assessee Lawyers: AMIT DHAVALE
• Keywords: Reopening of assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ./I.T.A. NO. 2006/M/2014 ( AY: 2002 - 2003 ) ./I.T.A. NO. 2007/M/2014 ( AY: 2005 - 2006 ) NITIN CHANDRAKANT DESAI, 201A VENTURA SHOPPING CENTRE, CENTRAL AVENUE, OPP. HDFC BANK, HIRANANDANI BUSINESS PARK, POWAI, MUMBAI 400076. / VS. ACIT - 11(1), MUMBAI. ./ PAN : AAFPD 8678 Q ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI AMIT DHAVALE / RESPONDENT BY : SHRI AKHILENDRA YADAV, SR. AR / DATE OF HEARING : 2 6 .11.2014 / DATE OF PRONOUNCEMENT : 26 .11.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. BOTH THE APPEALS ARE FILED BY THE ASSESSEE ON 24.3.2014 AGAINST THE ORDER OF THE CIT (A) - 3, MUMBAI DATED 24.1.2014 FOR THE ASSESSMENT YEARS 2002 - 03 AND 2005 - 06. SINCE, THE ISSUES RAISED IN BOTH THE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWI NG PARAS. 2. FIRSTLY, WE SHALL TAKE UP THE ITA NO.2006/M/2014 FOR THE AY 2002 - 2003. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN CO NFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT TO THE TUNE OF RS. 21,66,270/ - . THE SAID PENALTY WAS LEVIED IN RESPECT OF OUTSTANDING LABOUR CHARGES OF RS. 70,79,314/ - AS ON 31.3.2002. 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN RETAINING THE PENALTY LEVIED DESPITE THE APPELLANTS EXPLANATION THAT THE REOPENING OF ASSESSMENT ITSELF IS BAD IN LAW AS ON NEW FACTS HAD COME TO LIGHT TO JUSTIFY THE REOPENING. 3. ON THE FACTS AND IN TH E CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) HAS ERRED IN RETAINING THE PENALTY ON ENTIRE OUTSTANDING LABOUR CHARGES OF RS. 70,79,314/ - DESPITE THE DISCLOSURE OF THE FACT THAT THE SAID LABOUR CHARGES INCLUDED RS. 16,23,145/ - PERTAINING TO OUTSTANDIN G AS ON 31.3.2001 I.E., OF EARLIER YEAR. 4. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN RETAINING THE PENALTY DESPITE THE FACT THAT THE VERY BASIS OF QUANTUM ADDITION WAS THE APPEAL OF THE APPELLANT FOR AY 2006 - 2007 AND T HE HONBLE ITAT DELETED THE ADDITION IN THAT YEAR. 3. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE FILED A COPY OF THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE ON QUANTUM APPEALS VIDE ITA NOS.8447 TO 8450/MUM/2010 (AYS 2002 - 03 TO 2005 - 06) AND ITA N OS.83 65 & 8366/MUM/2010 (AYS 2003 - 04 & 2004 - 05) DATED 31.10.2014 AND MENTIONED THAT VIDE PARA 4 OF THE SAID ORDER OF THE TRIBUNAL, THE QUANTUM ADDITIONS WERE REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT. RELEVANT LINE FROM THE SAID PARA 4 READS AS UNDER: 4 AS THE BASIS FOR REOPENING THE ASSESSMENTS OF ALL THESE YEARS UNDER APPEAL HAVE BEEN DISMISSED BY THE TRIBUNAL IN AY 2006 - 2007 (SUPRA), IN OUR CONSIDERED OPINION, THE ENTIRE ISSUE HAS TO BE RELOOKED AT THE ASSESSMENT STAGE. WE, THEREFORE, RESTORE ALL THESE APPEALS TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT. THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE AFRESH IN LIGHT OF THE DECISION OF THE TRIBUNAL IN ITA NO.3298/MUM/2011 FOR AY 2006 - 07. AS THE ENTIRE ISSUE HAS BEEN RESTORED TO THE FILES OF THE ASSESSING OFFICER, WE DO NOT FIND IT NECESSARY TO CONSIDER THE GRIEVANCE OF THE ASSESSEE BY WHICH IT HAS CHALLENGED THE REOPENING OF THE ASSESSMENTS. 5. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE AND T HE REVENUE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 4. ACCORDING LY, QUANTUM APPEALS IN ALL THE YEARS (AYS 2002 - 03 TO 2005 - 06) WERE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. CONSIDERING DECISION OF THE ITAT IN THE QUANTUM APPEALS, LD COUNSEL FO R THE ASSESSMENT MENTIONED THAT THE A Y UNDER CONSIDERATION BEING 2002 - 03, SHOULD ALSO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR TAKING FRESH DECISION IN THE MATTER AFTER COMPLETING THE SET ASIDE ASSESSMENT. WE ORDER ACCORDINGLY. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3 ITA NO.2007/M/2014 (AY2005 - 2006) (BY ASSESSEE) 6 . THIS APPEAL FILED BY THE ASSESSEE ON 24.3.2014 IS AGAINST THE ORDER OF THE CIT (A) - 3, MUMBAI DATED 24.1.2014 FOR THE ASSESSMENT YEAR 2005 - 2006. 7. IN THIS APPEAL ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN CONFIRMING T HE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT TO THE TUNE OF RS. 20,24,360 / - . THE SAID PENALTY WAS LEVIED IN RESPECT OF OUTSTANDING LAB OUR CHARGES OF RS. 60,14,142 / - AS ON 31.3.2002. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CIT (A) HAS ERRED IN RETAINING THE PENALTY LEVIED DESPITE THE APPELLANTS EXPLANATION THAT THE REOPENING OF ASSESSMENT ITSELF IS BAD IN LAW AS ON NEW FACTS HAD COME TO LIGHT TO JUSTIFY THE REOPENING. 3. ON FACTS AND CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN RETAINING THE PENALTY DESPITE THE FACT THAT THE VERY BASIS OF QUANTUM ADDITION WAS THE APPEAL OF THE APPELLANT FOR AY 2006 - 2007 AND THE HONBLE ITAT DELETED THE ADDITION IN THAT YEAR. 8. THE ABOVE GROUNDS RA ISED BY THE ASSESSEE ARE EXACTLY IDENTICAL TO THAT OF THE GROUNDS RAISED BY THE ASSESSEE FOR THE AY 2002 - 2003. SINCE, THE GROUNDS RAISED BY THE ASSESSEE IN THE PRESENT APPEAL ARE IDENTICAL TO THAT OF THE AY 2002 - 2003, THE DECISION GIVEN BY US IN THE ABOVE PARAGRAPHS OF THIS ORDER WHILE ADJUDICATING THE APPEAL ITA NO.2006/M/2014 (AY 2002 - 2003) SQUARELY APPLIES TO THE INSTANT APPEAL TOO. CONSIDERING THE SAME, THE GROUNDS RAISED BY THE ASSESSEE IN THE PRESENT APPEAL SHOULD ALSO BE RESTORED TO THE FILE OF THE A SSESSING OFFICER FOR TAKING FRESH DECISION IN THE MATTER AFTER COMPLETING THE SET ASIDE ASSESSMENT. WE ORDER ACCORDINGLY. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONO UNCED IN THE OPEN COURT ON 2 6 T H NOVEMBER, 2014. S D / - S D / - ( AMIT SHUKLA ) (D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 2 6 /11/2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 4 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI