The Poonjar Service Co-op Bank Ltd, Kottayam V. ITo, Kottayam

ITA 217/COCH/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1020 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 26-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA; M ANIL KUMAR
• Assessee Lawyers: R MURALEEDHARAN
• Keywords: Application of stay
• Section: 263

Judgement Text

1 S.A. 52/COCH/2012 &ITA NO.217/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) S.A. 52/COCH/2012 (ARISING OUT OF I.T.A NO. 217/COCH/2012) (ASSESSMENT YEAR 2005-06) & I.T.A NO. 217/COCH/2012 (ASSESSMENT YEAR 2005-06) THE POONJAR SERVICE CO-OPERATIVE BANK LTD VS THE ITO , WD.3 POONJAR KOTTAYAM PAN : AAAP4839K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R MURALEEDHARAN RESPONDENT BY : SHRI M ANIL KUMAR, C.I.T. & SMT. S VIJAYAPRABHA DATE OF HEARING : 20-12-2012 DATE OF PRONOUNCEMENT : 11-01-2013 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE TAXPAYER IS DIRECTED AGAINST TH E ORDER OF THE ADMINISTRATIVE COMMISSIONER PASSED U/S 263 FOR THE ASSESSMENT YEAR 2005- 06. THE TAXPAYER HAS ALSO FILED STAY APPLICATION S EEKING STAY OF THE 2 S.A. 52/COCH/2012 &ITA NO.217/COCH/2012 OUTSTANDING DEMAND. THE STAY APPLICATION WAS FOUND TO BE DEFECTIVE INASMUCH AS THAT THE STAY APPLICATION WAS NOT IN OR DER AND DULY SWORN IN NOTARIZED AFFIDAVIT WAS NOT ACCOMPANYING THE STAY A PPLICATION. A NOTICE OF DEFECT WAS ACCORDINGLY ISSUED. HOWEVER, THE TAXPAY ER HAS NOT RECTIFIED THE DEFECTS NOTIFIED TO IT; HENCE THE STAY APPLICATION OF THE TAXPAYER IS REJECTED AS DEFECTIVE. 2. WITH REGARD TO THE APPEAL FILED BY THE TAXPAYER, SHRI R MURALEEDHARAN, THE LD.COUNSEL FOR THE TAXPAYER SUBM ITTED THAT THE ADMINISTRATIVE COMMISSIONER IN EXERCISE OF HIS REVI SIONAL JURISDICTION U/S 263 OF THE ACT HAS REOPENED THE ASSESSMENT. ACCORD ING TO THE LD.COUNSEL, THE ADMINISTRATIVE COMMISSIONER CANNOT REOPEN THE A SSESSMENT UNLESS IT WAS FOUND THAT THE ASSESSMENT WAS ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF THE REVENUE. THE LD.COUNSEL POINTED OU T THAT THE ADMINISTRATIVE COMMISSIONER HAS NOT FOUND THAT THE ORDER OF ASSESS MENT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LD. COUNSEL FURTHER POINTED OUT THAT THE ASSESSMENT ORDER WAS NOT SET ASIDE. T HE ADMINISTRATIVE COMMISSIONER HAS SIMPLY REOPENED THE ASSESSMENT WIT HOUT FURTHER INSTRUCTION / DIRECTION. 3 S.A. 52/COCH/2012 &ITA NO.217/COCH/2012 3. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SUB MITTED THAT THOUGH THERE WAS NO OBSERVATION ABOUT THE ASSESSMENT ORDER BECOMING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, THE ORDER OF THE ASSESSING OFFICER IN NOT BRINGING TO TAX RS.9,88,000 FOR TAXA TION IS AN ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THO UGH THE COMMISSIONER HAS NOT SAID IN SO MANY WORDS THAT THE ASSESSING OF FICER HAS TO BRING TO TAX RS.9,88,000 AS MENTIONED IN THE IMPUGNED ORDER, THE REORE, IT HAS TO BE PRESUMED THAT THE COMMISSIONER INTENDED TO DIRECT T HE ASSESSING OFFICER TO BRING RS.9,88,000 FOR TAXATION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. SECTION 263 OF THE INCOME-TAX ACT EMPOWERS THE ADMINISTRATIVE COMMISSIONER TO REV ISE THE ORDER OF THE ASSESSING OFFICER PROVIDED THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. AS RIGHT LY POINTED OUT BY THE LD.COUNSEL FOR THE TAXPAYER, THE COMMISSIONER HAS N OT COME TO A CONCLUSION THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICI AL TO THE INTEREST OF THE REVENUE. FURTHERMORE, THE ADMINISTRATIVE COMMISSIO NER HAS SIMPLY SAID THAT THE ASSESSMENT IS REOPENED. NO FURTHER INSTR UCTION OR DIRECTION WAS 4 S.A. 52/COCH/2012 &ITA NO.217/COCH/2012 GIVEN TO THE ASSESSING OFFICER. U/S 263, THE ADMIN ISTRATIVE COMMISSIONER HAS TO PASS AN ORDER EITHER BY ENHANCING OR MODIFYI NG THE ASSESSMENT. THE ADMINISTRATIVE COMMISSIONER CAN ALSO DIRECT FOR FRE SH ENQUIRY. IN THIS CASE, NO SPECIFIC DIRECTION OR INSTRUCTION WAS GIVEN TO T HE ASSESSING OFFICER BY THE ADMINISTRATIVE COMMISSIONER. THIS TRIBUNAL IS OF T HE CONSIDERED OPINION THAT THE PROCEEDINGS INITIATED BY THE ADMINISTRATIV E COMMISSIONER ARE INCOMPLETE AND HAVE NOT COME TO ANY CONCLUSION. TH EREFORE, THE IMPUGNED ORDER OF THE ADMINISTRATIVE COMMISSIONER WOULD NOT GIVE ANY JURISDICTION TO THE ASSESSING OFFICER TO INITIATE ANY PROCEEDING S. FURTHERMORE, SECTION 263(2) OF THE INCOME-TAX ACT CLEARLY SAYS THAT NO O RDER SHALL BE MADE AFTER EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL Y EAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED. IN THIS CASE, THE ORDER SOUGHT TO BE REVISED WAS PASSED ON 29-09-2009. NOW THE TWO YEAR S PERIOD HAS EXPIRED. THEREFORE, THE ADMINISTRATIVE COMMISSIONER CANNOT P ROCEED FURTHER. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CONSIDER ED OPINION THAT THE PROCEEDINGS INITIATED BY THE ADMINISTRATIVE COMMISS IONER U/S 263 OF THE INCOME-TAX ACT CANNOT SURVIVE. ACCORDINGLY THE SAM E IS QUASHED. 5 S.A. 52/COCH/2012 &ITA NO.217/COCH/2012 5. IN THE RESULT, THE STAY APPLICATION OF THE TAXPA YER IS DISMISSED WHEREAS THE APPEAL OF THE TAXPAYER IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH JANUARY, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 11 TH JANUARY, 2013 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH