Sh. Pankaj Nagalia, Dehradun V. CIT, Dehradun

ITA 2191/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7901 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 11-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 15-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS NANDITA KANCHAN
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI S.V.MEHROTRA, ACCOUNTANT MEMBER AND SHRI C.M.GARG, JUDICIAL MEMBER ITA NO. 2191/DEL/2013 : ASSTT . YEAR : 2008-09 PANKAJ NAGALIA 13-B, NEW SURVEY ROAD DEHRADUN VS CIT DEHRADUN APPELLANT) (RESPONDENT) PAN NO. AAVPN2861M ASSESSEE BY : SH. ANIL JAIN, ADV. REVENUE BY : MRS NANDITA KANCHAN, CIT. D.R. DATE OF HEARING : 11.05.2016 DATE OF PRONOUNCEMENT : 13.05.2016 ORDER PER C.M.GARG, JM THIS IS AN APPEAL FILED BY THE ASSESSEE HAS BEEN D IRECTED AGAINST THE ORDER OF CIT-DEHRADUN DATED 26/03/2013 PASSED U /S 263 OF THE INCOME TAX ACT, 1961 ( FOR SHORT ACT) FOR AY 2008 -09 CANCELLING THE ASSESSMENT ORDER DATED 10.12.2010 PASSED U/S 143(3) OF THE ACT. 2 ITA NO. 21 91/DEL/2013 PANKAJ NAGALIA 2. WE HAVE HEARD ARGUMENT OF BOTH THE SIDES AND C AREFULLY PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE CANCELLING THE ASSESSME NT ORDER DATED 10.12.2010 PASSED U/S 143(3) OF THE ACT. AT THE VER Y OUTSET, THE LD. DEPARTMENTAL REPRESENTATIVE DRAWN OUR ATTENTION TOW ARDS ORDER OF HONBLE HIGH COURT OF UTTARAKHAN DATED 31.12.2012 PASSED ITA NO. 27 OF 2012 AND SUBMITTED THAT THE HONBLE HIGH COURT H AS TAKEN A VIEW THAT HAVING REGARD TO THE FACT THAT THE ASSESSMENT ORDER WAS COMPLETE BEFORE APPEAL WAS TAKEN UP THE QUESTION, WHETHER BY USER O F POWER U/S 263 OF THE ACT, IN THE INSTANT CASE, WAS OR WAS NOT APPROP RIATE, BECOME ACADEMIC INASMUCH AS, REASSESSMENT WAS PERMITTED WI THOUT ANY PREJUDICE TO THE PENDING APPEAL. LD. DR ALSO POINTE D OUT THAT THE ORDER OF THE TRIBUNAL, SETTING ASIDE THE ORDER U/S 263 OF THE ACT, HAS BEEN SET ASIDE BY THE HONBLE HIGH COURT IN THE SIMILAR SET OF FACTS AND CIRCUMSTANCES, THEREFORE, PRESENT CASE IS ALSO COVE RED IN FAVOUR OF THE REVENUE BY THE ORDER OF THE HONBLE HIGH COURT (SUP RA). 3. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY S UPPORTED THE CASE OF THE ASSESSEE AND SUBMITTED THAT THE CIT-DEH RADUN WAS NOT JUSTIFIED INVOKING REVISIONAL POWERS U/S 263 OF THE ACT CANCELLING THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT FOR A Y 2008-09. HOWEVER, HE COULD NOT ASSIST US TO TAKE DIFFERENT V IEW ON THE ISSUE OF VALIDITY OF ORDER U/S 263 OF THE ACT WHEN IN THE SI MILAR SET OF FACTS AND 3 ITA NO. 21 91/DEL/2013 PANKAJ NAGALIA CIRCUMSTANCES THE HONBLE HIGH COURT OF UTTARAKHAND ALLOWED THE APPEAL OF THE REVENUE AND DEMOLISH THE ORDER OF THE TRIBUNAL WHEREIN PLEA OF THE ASSESSEE WAS ALLOWED. 4. ON CAREFUL CONSIDERATION ON ABOVE SUBMISSION S WE OBSERVE THAT THE HONBLE HIGH COURT HAS ALLOWED APPEAL OF T HE REVENUE FILED CHALLENGING THE ORDER OF THE TRIBUNAL WHEREIN ORDER OF THE CIT PASSED U/S 263 OF THE ACT WAS HELD AS UNSUSTAINABLE. THE R ELEVANT OPERATIVE PART OF THE HONBLE HIGH COURT IN READ AS FOLLOWS :- WE ARE OF THE VIEW THAT HAVING REGARD TO THE FACT THAT THE RE- ASSESSMENT WAS COMPLETE BEFORE THE APPEAL WAS TAKEN UP, THE QUESTION, WHETHER THE USER OF THE POWER UNDER SECTI ON 263 OF THE ACT, IN THE INSTANT CASE, WAS OR WAS NOT APPROPRIATE, BE CAME ACADEMIC, INASMUCH AS, RE-ASSESSMENT WAS PERMITTED WITHOUT AN Y PREJUDICE TO THE PENDING APPEAL. 2. WE ACCORDINGLY, ALLOW THE APPEAL, SET ASIDE TH E JUDGMENT AND ORDER OF THE TRIBUNAL. 3. WE HAVE BEEN INFORMED BY THE LEARNED COUNSEL F OR THE RESPONDENT/ASSESSEE THAT AGAINST THE ORDER OF RE-AS SESSMENT, AN APPEAL HAS BEEN PREFERRED BEFORE THE COMMISSIONER ( APPEALS), WHICH APPEAL IS PENDING. THE COMMISISONER (APPEALS) SHALL DECIDE THE SAID APPEAL WITHOUT BEING INFLUENCED BY ANY OBSERVATION MADE BY THIS COURT OR ANY OBSERVATION MADE BY THE TRIBUNAL IN TH E ORDER, WHICH HAS BEEN SET ASIDE BY THIS ORDER. 5. IN VIEW OF ABOVE, WE HAVE NO HESITATION TO HO LD THAT THE CASE IS SQUARELY COVERED IN FAVOUR OF THE REVENUE BY THE OR DER OF HONBLE HIGH COURT WHICH HAVE BEEN PASSED IN THE SIMILAR SET OF FACTS AND 4 ITA NO. 21 91/DEL/2013 PANKAJ NAGALIA CIRCUMSTANCES FOR AY 2006-07. RESPECTFULLY FOLLOWIN G THE SAME, WE HOLD THAT THE SOLE GROUND OF THE REVENUE IN THIS AP PEAL IS NOT ALLOWABLE AND IT SEEMS THE SAME. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MAY, 2016. SD/- SD/- (S.V.MEHROTRA) (C.M.GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 /05/2016 BINITA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 21 91/DEL/2013 PANKAJ NAGALIA DATE 1. DRAFT DICTATED ON 12 /0 5 /2016 PS 2. DRAFT PLACED BEFORE AUTHOR 12/05/2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.