The ITO, Ward-2(4), Surat V. M/s. Nutan Organisers, Surat

ITA 2038/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0369 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 26-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: WRITTEN SUBMISSON
• Keywords: Revision of order
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI D. C. AGRAWAL, ACCOUNTANT MEMBER ITA NO.2038/AHD/2009 & CO NO.171/AHD/2009 (ARISING OUT ITA NO.2038/AHD/2009) ASSESSMENT YEAR:2003-04 DATE OF HEARING:31.8.09 DRAFTED:15.9.09 INCOME TAX OFFICER, WARD-3(4), SURAT ROOM NO.207, AAYKAR BHAVAN, MAZURA GATE, SURAT NUTAN ORGANIZERS, 40, SUGAM SOCIETY, ADAJAN PATIA, RANDER ROAD, SURAT PAN NO.AAEFN5791R V/S . V/S . M/S. NUTAN ORGANISORS, 40, SUGAM SOCIETY, ADAJAN PATIA, RANDER ROAD, SURAT INCOME TAX OFFICER, WARD-2(4), ROOM NO.207, AYAKAR BHAVAN, MAJURA GATE, SURAT (APPELLANT) .. (RESPONDENT) ITA NO.2039/AHD/2009 & C.O.NO.172/AHD/2009 (ARISING OUT ITANO.2039/AHD/2009) ASSESSMENT YEAR: 2003-04 INCOME TAX OFFICER, WARD-3(4), SURAT ROOM NO.207, AAYKAR BHAVAN, MAZURA GATE, SURAT RACHNA BUILDERS, 40, SUGAM SOCIETY, ADAJAN PATIA, RANDER ROAD, SURAT PAN NO.AAGFR9443L V/S . V/S . M/S. RACHNA BUILDERS, 40, SUGAM SOCIETY, ADAJAN PATIA, RANDER ROAD, SURAT INCOME TAX OFFICER, WARD-2(4), ROOM NO.207, AYAKAR BHAVAN, MAJURA GATE, SURAT (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- WRITTEN SUBMISSON REVENUE BY:- SHRI S.S. PANWAR, SR. DR ITA NO.2038-39/AHD/2009 & COS 171-172/AHD/2009 A.Y. 2003-04 ITO WD-3(4) SURAT V. M/S.NUTAN ORGANISERS PAGE 2 O R D E R PER BENCH:- THESE TWO APPEALS BY THE REVENUE AND CROSS OBJECTI ONS (CO) BY THE ASSESSEE ARE ARISING OUT OF THE ORDER OF COMMISSION ER OF INCOME-TAX (APPEALS)-II, SURAT IN APPEAL NO.CAS/II/474-475/2008-09 DATED 31- 03-2009. THE ASSESSMENT WAS FRAMED BY THE ITO, WARD-3(4), SURAT U/S.143(3) R.W. S. 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HI S ORDER DATED 29-12-2008. 2 AT THE OUTSET IT IS NOTICED FROM THE WRITTEN SUBM ISSIONS THAT THE REVISION ORDERS PASSED U/S.263 OF THE ACT HAS BEEN CANCELLED BY THE TRIBUNAL IN ITA NO.1812 AND 1811/AHD/2008 DATED 24-03-2008. THE RELEVANT WRITTEN SUBMISSION S READ AS UNDER:- WRITTEN SUBMISSIONS:- THE FOLLOWING ARE DATES OF VARIOUS ORDERS RELIED UP ON BY THE RESPONDENT:- 1. DATE OF ORDER U/S.263 PASSED BY C.I.T.-I, SURAT IN BOTH 24-03-2008 CASES FOR ASST. YEAR 2003-04 CANCELING THE ORDER PA SSED U/S.143(3) ON 31-03-2006 IN BOTH THE CASES. 2. DATE OF ORDER PASSED BY HONOURABLE I.T.A.T BENCH A 29-08-2008 AHMEDABAD BEARING NOS. 1812 AND 1811/AHD/2008 FOR ASST. YEAR 2003-04 AGAINST THE ORDER U/S.263 OF C.I .T.-I, SURAT DATED 24-03-2008 IN BOTH CASES. 3. DATE OF ASST. ORDERS FOR ASST. YEAR 2003-04 PASS ED 29-12-2008 U/S.143(3) READ WITH SECTION 263 PASSED BY I.T.O. W ARD 3(4) SURAT IN BOTH CASES. 4. DATE OF 1 ST APPEAL ORDER NO.CAS/II/475-474/2006- 31-03- 2009 2007 PASSED BY CIT (APPEALS) II, SURAT IN BOTH THE CASES AGAINST THE ASSTT. ORDER PASSED U/S.143(3) RE AD WITH SECTION 263 HOLDING THE SAID ASTT. ORDER AT SR .NO.3 AS ANNULLED IN VIEW OF HONOURABLE ITAT ORDER AT S R. NO. 2 ABOVE. 5. FROM THE ABOVE DATES CITED IT WILL BE SEEN THAT THE ASTT. ORDERS WERE PASSED ON 29-12-2008 AS AT SR. NO.3 WHEREAS THE HONORALE ITAT HAS CANCE LLED THE ORDERS U/S.263 IN BOTH THE CASES ON 29-08-2008 MUCH BEFORE ALMOST FOUR MONTHS BACK HOLDING AS UNDER:- ITA NO.2038-39/AHD/2009 & COS 171-172/AHD/2009 A.Y. 2003-04 ITO WD-3(4) SURAT V. M/S.NUTAN ORGANISERS PAGE 3 15. AFTER HAVING CONSIDERED TOTALITY OF THE FACTS A ND CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE VERY BASE FOR CIT TO PR OCEED UNDER SECTION 263 OF THE ACT, WAS ON MISINTERPRETATION OF THE PRO VISIONS OF LAW, AND THEREFORE, IN VIEW OF THE PROPOSTION OF LAW DOWN B HONBLE SUPREME COURT I THE CASE OF CIT VS. MAX INDIA LTD. (SUPRA) AND BY HONBLE GUJARAT HIGH COURT IN THE CASE OF ARVINNND JEWELLER S (SUPRA), THE ORDER OF CIT PASD UNDER SECTION 263 OF THE ACT CANNOT BE UPHELD, WHICH IS THEREFORE, CANCELLED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. 6. HOWEVER, IRRESPECTIVE OF THE FACT THAT HONORABLE ITA HAS CANCELLED ORDER U/S.263 BEFORE OR AFTER THE PASSING OF ASTT. ORDERS U/S.143(3) READ WITH SECTION 263, THE SAID ASTT. ORDERS STAND ANNULLED AS HELD BY THE LEARNED CIT (APPEALS) SURAT-II AS AT SR. NO.4 CONSEQUENTLY SUCH ORDERS PASSED U/S.143(3) R.W.S. 263 BASED ON THE CANCELLED ORDERS U/S.263 ALSO BE HELD CANCELLED. IN VIEW OF THESE FACTS, THE RESPONDENT WILL LIKE TO RELY UPON THOSE WRITTEN SUBMISSION AND THIS WRITTEN SUBMISSION MAY BE AS PE RSONAL REPRESENTATION; IF THE DEPARTMENTAL ABOVE TWO APPEALS IS DISMISSED BEI NG IN FRUCTUOUS AND LEARNED CIT (APPEALS) ORDERS AT SR. NO.4 ARE BEING CONFIRMED IN FAVOUR OF THE RESPONDENT AND CROSS-OBJECTIONS MAY BE TREATED ACCO RDINGLY. 3. THE LD. CIT DR FAIRLY CONCEDED THE POSITION THAT THE REVISION ORDERS U/S.263 OF THE ACT HAVE BEEN ANNULLED BY THE TRIBUNAL. 4. IN VIEW OF THE ABOVE FACTS, ONCE THE REVISION OR DER U/S.263 OF THE ACT IS ANNULLED, THE CONSEQUENTIAL ORDER PASSED U/S.143(3) R.W.S. 263 OF THE ACT CANNOT SURVIVE. THIS IS THE FINDING OF CIT(A) IN PARA-2 AS UNDER:- 2. SHRI KAUSHIK DALAL, ADVOCATE 7 AUTHORIZED REPRE SENTATIVE (AR), APPEARED ON BEHALF OF THE ASSESSEE AND SUBMITTED A COPY OF T HE ORDER OF THE AHMEDABAD BENCH OF THE ITAT, AHMEDABAD DT. 29.8.200 8 IN ITA NO.1812/AHD/2008 IN THE ASSESSEES OWN CASE. THE IT AT HAS OBSERVED AS UNDER:- AFTER HAVING CONSIDERED TOTALITY OF THE FACTS AND CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE VERY BASE FOR CIT TO PROCEE D UNDER SECTION 263 OF THE ACT, WAS ON MISINTERPRETATION OF THE PROVISI ONS OF LAW, AND THEREFORE, IN VIEW OF THE PROPOSITION OF LAW DOWN B Y THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. MAX INDIA LTD. (SUPRA) AND BY HONBLE GUJARAT HIGH COURT IN THE CASE OF ARVIND JE WELLERS (SUPRA), THE ORDER OF CIT PASSED UNDER SECTION 263 OF THE ACT CA NNOT BE UPHELD, WHICH IS THEREFORE, CANCELLED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. SINCE, THE ORDER U/S.263 HAS BEEN CANCEL LED BY THE ITAT, THE ASST. ORDER WHICH WAS PASSED BY THE AO IN PURSUANCE TO SUCH ORDER U/S.263 OF THE CIT, WILL SAND ANNULLED. CONSEQUENTL Y, THE ASSESSEES APPEAL IS ALLOWED. ITA NO.2038-39/AHD/2009 & COS 171-172/AHD/2009 A.Y. 2003-04 ITO WD-3(4) SURAT V. M/S.NUTAN ORGANISERS PAGE 4 IN VIEW OF THE ABOVE, THESE TWO APPEALS OF THE REVE NUE ARE DISMISSED AND THE COS OF THE ASSESSEES ARE SUPPORTIVE, HENCE, ALLOWED. 5. IN THE RESULT, REVENUES APPEALS ARE DISMISSED AND THE COS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 09/10/2009 SD/- SD/- (D.C.AGRAWAL) (MAHAVIR SIN GH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 09/10/2009 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-II, SURAT 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD