Asstt.Commissioner of Income Tax, Kanpur V. M/s. Penguine Farma Pvt.Ltd., New Delhi

ITA 225/LKW/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78568 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 24-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.225/LKW/2012 ASSESSMENT YEAR:2007 - 08 A.C.I.T., CENTRAL CIRCLE - 1, KANPUR. VS. M/S PENGUIN FARMS PVT. LTD., 201, SURYA KIRAN BUILDING, 19, K. G. MARG, NEW DELHI. PAN:AAACP1267F (APPELLANT) (RESPONDENT) APPELLANT BY SHRI MANOJ KUMAR GUPTA, CIT, D.R. RESPONDENT BY SHRI SWARAN SINGH, C. A. DATE OF HEARING 19/05/2014 DATE OF PRONOUNCEMENT 1 3 /06/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - III, NEW DELHI DATED 15/12/2011 FOR ASSESSMENT YEAR 2007 - 2008. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THAT LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELEING THE ADDITION OF RS.47,02,750/ - , ERRONEOUSLY ACCEPTED THE ASSESSEE'S ARGUMENT THAT HON'BLE SETTLEMENT COMMISSION HAS CONSIDERED THE UNEXPLAINED EXPENSES IN THE TRANSACTION OF THE PROPERTIES, WITHOUT APPRECIATING THE FACT THAT HON'BLE SETTLEMENT COMMISSION HAS PASSED ORDER U/S 245D(4) OF THE I. T. ACT 1961 IN RESPECT OF A.YRS. 2008 - 09 AND 2009 - 10 ONLY. 2. THAT LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELEING THE ADDITION OF RS. 47,02,750/ - , ERRONEOUSLY ACCEPTED THE ASSESSEE'S ARGUMENT THAT HON'BLE SETTLEMENT COMMISSION HAS CONSIDERED THE UNEXPLAINED EXPENSES IN THE 2 TRANSACTION OF THE PROPERTIES, WITHOUT APPRECIATING THE FACT THAT THE ASSESSMENT ORDER FOR A.Y. 2007 - 08, IN RESPECT OF WHICH ASSESSEE HAD NOT FILED PETITION BEFORE HON'BLE SETTLEMENT COMMISSION, HAVE BEEN PASSED ON 29/1272010, PRIOR TO 31712/2010 I.E. THE DATE OF ORDER OF HON'BLE SETTLEMENT COMMISSION FOR A.YRS. 2008 - 09 AND 2009 - 10. 3. THAT LD. CIT (A) H AS ERRED IN LAW AND ON FACTS IN DELEING THE ADDITION OF RS.47,02,750/ - , ERRONEOUSLY RELYING UPON THE ORDER OF HON'BLE SETTLEMENT COMMISSION FOR A.YRS. 2008 - 09 AND 2009 - 10, WHEREAS THE ASSESSMENT YEAR INVOLVED IN THE INSTANT CASE IS ASSESSMENT YEAR 2007 - 08. 4. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANY ONE OR MORE OF THE GROUNDS OF THE APPEAL AS STATED ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 5. THAT THE ORDER OF THE LD. CIT (A) DESERVES TO BE VACATED AND THE ASSESSMENT ORDER PASSED BY THE A.O. B E RESTORED. 3. IT WAS SUBMITTED BY LEARNED A .R. OF THE ASSESSEE THAT THE TRIBUNAL DECISION IN THE CASE OF ACIT VS. LATA JAIN AS REPORTED IN [2013] 56 SOT 102 IS AVAILABLE ON PAGE NO. 28 TO 51 OF THE PAPER BOOK. HE FURTHER SUBMITTED THAT THE FACTS IN THAT CASE ARE SIMILAR. HE POINTED OUT THAT AS PER PARA 4, IT IS NOTED BY THE TRIBUNAL THAT THE JURISDICTION OF THE ASSESSING OFFICER OVER THE ASSESSEE WAS TRANSFERRED BY CIT U/S 127(2) OF THE ACT VIDE HIS ORDER DATED 12/08/2011 FROM DELHI TO KANPUR AND THE ASSESSING OFFICER AT KANPUR FALLS WITHIN THE JURISDICTION OF LUCKNOW BENCHES OF THE TRIBUNAL. IT IS ALSO NOTED BY THE TRIBUNAL THAT THE APPEALS WERE FILED ON 19/12/2011 AFT ER TRANSFERRING THE JURISDICTION OF THE ASSESSING OFFICER FROM DELHI TO KANPUR, AND THEREFORE, AS PER THE CLAIM OF THE REVENUE IN THAT CASE, THE APPEALS WERE RIGHTLY FILED BEFORE THE LUCKNOW BENCH OF THE TRIBUNAL AND CONSEQUENTLY THE LUCKNOW BENCH HAVE JUR ISDICTION OVER THE ASSESSEE BUT THE TRIBUNAL DID NOT ACCEPT THE CONTENTION OF THE REVENUE IN THAT CASE . LEARNED DR OF THE REVENUE SUBMITTED 3 THAT THE JURISDICTION LIES WITH LUCKNOW BENCH OF THE TRIBUNAL BECAUSE THE APPEAL IS FILED AFTER ORDER U/S 127. 4. W E HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GONE THROUGH THIS TRIBUNAL DECISION RENDERED IN THE CASE OF LATA JAIN (SUPRA). IN THAT CASE, IT WAS HELD BY THE TRIBUNAL AT PARA 8 THAT SINCE THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER LOCATED IN DELH I PRIOR TO THE ORDER PASSED BY CIT U/S 127 OF THE ACT FOR TRANSFER OF JURISDICTION, THE APPEAL IS TO BE FILED WITH DELHI BENCH OF THE TRIBUNAL. THE RELEVANT PARA OF THIS TRIBUNAL DECISION I.E. PARA 8 AVAILABLE ON PAGE 30 OF THE PAPER BOOK IS REPRODUCED BE LOW FOR THE SAKE OF READY REFERENCE: 8. TURNING TO THE CASES IN HAND, UNDISPUTEDLY THE OFFICE OF THE ASSESSING OFFICER WHO PASSED THE ASSESSMENT ORDERS IS LOCATED IN DELHI, OVER WHICH THE DELHI BENCHES OF THE TRIBUNAL HAS JURISDICTION. THE ORDER UNDER SECTION 127 OF THE ACT WAS PASSED BY THE LD. COMMISSIONER OF INCOME - TAX ON 12.8.2011 W.E.F. 23.8.2011, WHICH WAS PASSED AFTER PASSING THE ASSESSMENT ORDER AND EVEN AFTER FILING OF THE FIRST APPEAL. THEREFORE, THE DELHI BENCHES OF THE TRIBUNAL HAVE THE JURI SDICTION OVER THE ASSESSEE TO HEAR THE APPEALS AND NOT THE LUCKNOW BENCHES OF THE TRIBUNAL. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THESE APPEALS WERE WRONGLY FILED BEFORE THE LUCKNOW BENCHES OF THE TRIBUNAL AND THE LUCKNOW BENCHES HAVE NO JURISDICTI ON TO ADJUDICATE THESE APPEALS. THEREFORE, THESE APPEALS ARE DISMISSED BEING NOT ADMITTED. WE, HOWEVER, GIVE LIBERTY TO THE REVENUE TO FILE THESE APPEALS BEFORE THE DELHI BENCHES OF THE TRIBUNAL IN ACCORDANCE WITH LAW. 5. IN THE PRESENT CASE ALSO , THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER BEING ACIT, CENTRAL CIRCLE - II, NEW DELHI ON 29/12/2010. EVEN THE ORDER OF CIT HAS BEEN PASSED BY CIT(A) - III, DELHI ON 15/12/2011. THE ORDER PASSED BY CIT U/S 127(2) IS AVAILABLE ON PAGE 24 AND 25 IS DATED 12/08/2011 AND THIS IS COMMON ORDER FOR LATA JAIN AND THE PRESENT ASSESSEE. SINCE THE FACTS ARE IDENTICAL, WE HOLD THAT IN THE PRESENT CASE ALSO, THE APPEAL WAS WRONGLY FILED BEFORE THE LUCKNOW BENCH OF THE TRIBUNAL AND LUCKNOW 4 BENCH OF THE TRIBUNAL HAS NO JURISDICTION OVER THIS CASE. ACCORDINGLY, THE APPEAL IS DISMISSED AS NOT ADMITTED. WE HOWEVER GIVE LIBERTY TO REVENUE TO FILE THE APPEAL BEFORE DELHI BENCH IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. (ORDER W AS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 /06/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR