Deputy Commissiner of Income-tax, V. Premium Transmission Ltd., Pune

ITA 2258/PUN/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7311 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-10-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 18-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.2258/PUN/2014 / ASSESSMENT YEAR : 2006-07 DCIT, CIRCLE-10, PUNE . /APPELLANT VS. PREMIUM TRANSMISSION LTD., PREMIUM HOUSE, MUMBAI PUNE ROAD,CHINCHWAD, PUNE 411 019 PAN : AADCP2916N . / RESPONDENT / APPELLANT BY : SHRI AJAY MODI / RESPONDENT BY : SHRI ABHAY AVCHAT / DATE OF HEARING : 10.10.2017 / DATE OF PRONOUNCEMENT: 11.10.2017 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF CIT(A)-V, PUNE FOR THE A.Y. 2006-07. 2. IN THE GROUNDS, REVENUE QUESTIONED THE DECISION OF THE CIT(A) IN ALLOWING THE APPEAL OF THE ASSESSEE ON THE GROUND O F INVALID JURISDICTION BY THE AO. OTHERWISE, REVENUE RAISED 6 GROUNDS IN THIS AP PEAL. 3. THE BACKGROUND FACTS OF THE CASE INCLUDE THAT TH E ASSESSEE IS ENGAGED IN THE PRODUCTION OF INDUSTRIAL GEARBOXES, FLUID CO UPLINGS AND GEARED MOTORS. ASSESSEE FILED THE RETURN OF INCOME ON 05-11-2006 D ECLARING INCOME OF RS.28,45,08,568/-. IN THE RE-ASSESSMENT PROCEEDING S, THE AO DETERMINED THE RE-ASSESSED INCOME AT RS.28,99,73,790/- AS AGAINST THE REVISED INCOME DETERMINED U/S.143(3) R.W.S.250 OF THE ACT AT RS.28 ,48,78,180/-. IT IS THE ITA NO.2258/PUN/2014 PREMIUM TRANSMISSION LTD., 2 CASE WHERE ASSESSEE WAS ORIGINALLY ASSESSED IN THE JURISDICTION OF ACIT, CIRCLE- 14(1), NEW DELHI. SUBSEQUENTLY, THE CIT-V, NEW DEL HI PASSED THE ORDER U/S.127(2) OF THE ACT ON 16-03-2010 VESTING THE JUR ISDICTION WITH ACIT, CENTRAL-10, PUNE. THE SAID ORDER IS EFFECTIVE FROM 17-03-2010. CONSIDERING THE FACT THAT THE REASSESSMENT ORDER PASSED BY THE AO ON 28-02-2014, I.E. SUBSEQUENT TO THE ORDER U/S.127(2) DATED 16-03-2010 , THE ASSESSEE RAISED THIS LEGAL ISSUE BEFORE THE CIT(A). 4. ON CONSIDERING THE FACTS RELATING TO THE CHRONOL OGY OF EVENTS RELATING TO DATE OF ISSUE OF NOTICE U/S.148 OF THE ACT DT. 19-0 3-2013 BY THE ACIT, CIRCLE- 14(1), NEW DELHI, THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE ON TECHNICAL GROUNDS. RELEVANT DISCUSSION GIVEN IN PARA NOS. 6 AND 7 OF HIS ORDER ARE RELEVANT. 5. AGGRIEVED WITH THE ABOVE, REVENUE FILED THE PRES ENT APPEAL BEFORE US. AT THE OUTSET, LD. DR FOR THE REVENUE FAIRLY SUBMIT TED THAT THE NOTICE DATED 19-03-2013 ISSUED U/S.148 OF THE ACT IS SUBSEQUENT IN TIME TO THE DATE OF THE ORDER OF THE CIT-V, NEW DELHI PASSED U/S.127(2) OF THE ACT. THEREFORE, THE LD. DR FOR THE REVENUE FAIRLY RELIED ON THE ORDER O F THE AO AND THE GROUND RAISED BY THE REVENUE. 6. ON THE OTHER HAND, LD. AR FOR THE ASSESSEE READ OUT THE CONTENTS OF PARA NOS. 6 AND 7 OF THE ORDER OF CIT(A) AND SUBMIT TED THAT THE PRESENT RE- ASSESSMENT ORDER MADE BY THE AO IS INVALID CONSIDER ING THE FACT THAT THE AO ISSUED THE NOTICE U/S.148 OF THE ACT WHEN HE DOES N OT HAVE VALID JURISDICTION OVER THE ASSESSEE ON 19-03-2013. ON THAT DAY, ASSE SSEES CASE STANDS ALREADY TRANSFERRED TO ACIT, CENTRAL-10, PUNE W.E. F 17-03-2010. 7. ON HEARING BOTH THE SIDES, WE PERUSED THE SAID P ARAGRAPH OF THE ORDER OF CIT(A) AND WE PROCEED TO EXTRACT THE SAME AS UND ER : ITA NO.2258/PUN/2014 PREMIUM TRANSMISSION LTD., 3 6. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AS WELL AS REPLY OF THE APPELLANT. IN THIS CASE, IT IS SEEN FROM THE COPY OR ORDER U/S.127(2) OF INCOME-TAX ACT DATED 16-03-2010 THAT JURISDICTION W AS TRANSFERRED TO ACIT, CIRCLE-10, PUNE FROM DCIT, CIR.14(1), NEW DELHI W.E .F. 17-03-2010. THIS BEING SO, IT IS INCOMPREHENSIBLE AS TO HOW THE FILE REMAINED WITH THE DCIT, CIR.14(1), NEW DELHI EVEN AFTER THREE YEARS AFTER P ASSED ORDER U/S.127(2) OF INCOME-TAX ACT AND ALSO HOW, DCIT, CIR. 14(1), NEW DELHI CHOSE TO EXERCISE JURISDICTION U/S.147 OF INCOME-TAX ACT DESPITE THE SAID ORDER. THE APPELLANT BROUGHT THIS TO THE NOTICE OF THE DCIT, CIR. 14(1), NEW DELHI VIDE LETTER DATED 19-04-2013 WHICH PROBABLY TRIGGERED FOR TRANSFER OF THE FILE TO ACIT, CIR-10, PUNE THAT TOO AFTER LONG DELAY ON 02-12-2013 AS NOT ICED FROM PARA 5 OF THE ASSESSMENT ORDER. THE APPELLANT RAISED THIS ISSUE BEFORE ACIT, CIR-10, PUNE WHO OVERRULED THE OBJECTIONS STATING THAT NOTICE WA S VALID IN THE LIGHT OF THE PROVISIONS OF SEC.292BB OF INCOME-TAX ACT AND ALSO BECAUSE ORIGINAL ASSESSMENT U/S.143(3) OF INCOME-TAX ACT WAS PASSED BY THE ADDL. CIT, RANGE-14, NEW DELHI WHO EXERCISED JURISDICTION OVER THE CASE. THE ASSESSING OFFICER HAS DEALT WITH THIS ISSUE IN PARA 6.1 OF TH E ASSESSMENT ORDER AND I FIND THAT THE ASSESSING OFFICER HAS OVERRULED THE OBJECT IONS IN GENERAL MANNER WITHOUT APPRECIATING THE PROVISIONS OF SEC.29BB IN PROPER PERSPECTIVE. AT THIS POINT OF TIME, IT IS IMPERATIVE TO VISIT THE PROVIS IONS OF SEC.292BB OF INCOME- TAX ACT WHICH READS AS UNDER : '292BB. WHERE AN ASSESSEE HAS APPEARED IN ANY PRO CEEDING OR CO- OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT O R REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF TH IS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVE D UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDI NG OR INQUIRY UNDER THIS ACT THAT THE NOTICE WAS (A ) NOT SERVED UPON HIM; OR (B ) NOT SERVED UPON HIM IN TIME; OR (C ) SERVED UPON HIM IN AN IMPROPER MAN NER: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPL ETION OF SUCH ASSESSMENT OR REASSESSMENT.' 7. IN THIS CASE, SINCE THE APPELLANT HAS CHALLENGED THE VALIDITY OF NOTICE U/S.148 OF INCOME-TAX ACT, 1961 ON ACCOUNT OF LACK OF JURISDICTION IMMEDIATELY AFTER RECEIPT OF NOTICE VIDE LETTER DATED 19-04-201 3 AND ALSO DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WHICH IS SO EVIDENT FROM THE DISCUSSION IN PAR 6.1 OF THE ASSESSMENT ORDER. IT IS CLEAR THAT PROVISO TO SEC.292BB AS DISCUSSED ABOVE WILL COME INTO OPERATION AND NOTICE U/S.148 O F INCOME-TAX ACT ON 19- 03-2013 WILL NOT GET THE PROTECTION OF SEC.292BB OF INCOME-TAX ACT. ACCORDINGLY, IT IS HELD THAT THE ASSESSING OFFICER WRONGLY ASSUMED JURISDICTION U/S.147 OF INCOME-TAX ACT BY ISSUING NOTICE U/S.148 OF INCOME-TAX ACT ON 19- 03-2013 WHEN HE WAS NOT HAVING JURISDICTION OVER TH E APPELLANT AND THEREFORE WAS NOT COMPETENT TO ISSUE NOTICE U/S.148 OF INCOME -TAX ACT. 8. THE ORDER U/S.127(2) WAS PASSED BY THE CIT-V, NE W DELHI ON 16-03- 2010. THE NOTICE U/S.148 OF THE ACT WAS ISSUED BY D CIT, CIRCLE-14 (1), NEW DELHI ON 19-03-2013. THE RE-ASSESSMENT ORDER WAS I SSUED BY THE ACIT, CIRCLE-10, PUNE ON 28-02-2014. THERE IS NO DISPUTE ON THESE FACTS. ITA NO.2258/PUN/2014 PREMIUM TRANSMISSION LTD., 4 THEREFORE, IT IS EVIDENT THAT THE ACIT, CIRCLE-14(1 ), NEW DELHI DOES NOT HAVE JURISDICTION OVER THE ASSESSEE WHEN THE NOTICE U/S. 148 OF THE ACT IS ISSUED AND WHEN THE ASSESSMENT ORDER DATED 28-02-2015 IS MADE. CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT THE ORDER OF THE CIT(A) IS FAIR AND REASONABLE AND DOES NOT CALL FOR ANY INTERFERENCE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF OCTOBER, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 11 TH OCTOBER, 2017. / COPY OF THE ORDER FORWARDED TO : BY ORDER // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE THE APPELLANT THE RESPONDENT THE CIT(A) - V , PUNE CIT - V , PUNE , , B BENCH PUNE; / GUARD FILE.