Income-tax Officer, V. M/s. Sharvari Buildcon Pvt. Ltd., Nashik

ITA 237/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7259 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-10-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 09-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Keywords: Revision of order
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 23 7 /P U N/20 1 5 / ASSESSMENT YEAR : 20 0 4 - 05 THE INCOME TAX OFFICER, WARD 2(1), NASHIK . / APPELLANT VS. M/S. SHARVARI BUILDCON PVT. LTD., 1, SHEETAL PARADISE, GOVIND NAGAR, NASHIK 422009 . / RESPONDENT PAN: AAECS9165M / APPELLANT BY : SHRI MUKESH JHA / RESPONDENT BY : S HRI SANKET JOSHI / DATE OF HEARING : 2 6 . 1 0.2017 / DATE OF PRONOUNCEMENT: 30 . 1 0.2017 / ORDER PER SUSHMA CHOWLA, JM: THE APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF CIT(A) - 2 , NASHIK , DATED 10 . 12 .201 4 RELATING TO ASSESSMENT YEAR 20 0 4 - 05 AGAINST ORDER PASSED UNDER SECTION 143(3) R.W.S. 263 OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LD. CIT(A) - 2, NASHIK HAS ERRED IN QUASHING THE ORDER DATED 03.10.2013 PASSED BY THE A.O. U/S 143(3) R.W.S. 263 OF THE ACT ON THE SOLE GROUND THAT THE HONBLE ITAT IN ITS ORDER DATED 26.11.2014 ANNULLED THE RE - ASSESSMENT ORDER PASSED BY THE A.O. U/S. 143(3) R.W.S. 147 DATED 31.12.2011. 2 ITA NO. 237 /PUN/20 1 5 SHARVARI BUILDCON PVT. LTD. 2. WHETHER THE LD. CIT(A) - 2 WAS CORRECT IN QUASHING THE ORDER DATED 03.10.2 013 WHEN HE HAS FAILED TO APPRECIATE THAT THE PROCEEDINGS U/S 263 WERE INITIATED TO RECTIFY THE OMISSIONS OF THE ASSESSING OFFICER IN THE ORDER DATED 31.12.2011, AND ALSO IN FAILING TO APPRECIATE THAT THE ASSESSEE HAD ACCEPTED THE FACT OF UNDISCLOSED INVES TMENT OF RS.77 LAKHS IN REVISION PROCEEDINGS BEFORE CIT - 2, NASHIK. 3. THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE NOTICE ISSUED U/S 147 IS VALID AND THEREFORE, REVISION U/S 263 OF ORDER PASSED U/S 147 R.W.S. 143(3) IS ALSO VALID. 3. THE APP EAL FILED BY THE REVENUE IS AGAINST THE ORDER OF CIT(A) IN QUASHING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) R.W.S. 263 OF THE ACT. THE REVENUE IS AGGRIEVED BY THE AFORESAID ORDER OF CIT(A) ON THE GROUND THAT THE PROCEEDIN GS UNDER SECTION 263 OF THE ACT INITIATED AGAINST THE ASSESSEE TO RECTIFY THE OMISSIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER DATED 31.12.2011 , WHEREIN DURING 263 PROCEEDINGS, THE ASSESSEE HAD ACCEPTED THE FACT OF UNDISCLOSED INVESTMENT. 4. BRI EFLY, IN THE FACTS OF THE CASE, THE ASSESSMENT IN THE CASE WAS MADE UNDER SECTION 143(3) R.W.S. 147 OF THE ACT VIDE ORDER DATED 31.12.2011. THE ASSESSEE FILED AN APPEAL AGAINST THE SAID ORDER OF ASSESSING OFFICER , WHICH ON MERITS WAS ALLOWED BY THE CIT(A) BUT THE ISSUE OF INITIATION OF RE - ASSESSMENT PROCEEDINGS UNDER SECTION 147 / 148 OF THE ACT WAS DECIDED AGAINST THE ASSESSEE. THE REVENUE FILED AN APPEAL AGAINST THE ORDER OF CIT(A) ON MERITS AND THE ASSESSEE FIL ED CROSS OBJECTIONS AGAINST THE JURISDICTIONAL ISSUE OF INITIATION OF PROCEEDINGS UNDER SECTION 147 / 148 OF THE ACT. THE TRIBUNAL DECIDED THE CROSS OBJECTIONS FILED BY THE ASSESSEE AND ANNULLED THE RE - ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDE R SECTION 143(3) R.W.S. 147 OF THE ACT. THE COMMISSIONER INITIATED PROCEEDINGS UNDER SECTION 263 OF THE ACT AND HELD THE ASSESSMENT ORDER PASSED IN THE CASE TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE ASSESSING OFFICER THEREAFTER, PASSED AN ORDER UNDER SECTION 143(3) R.W.S. 263 OF THE ACT , DATED 03.10.2013 . THE ISSUE BEFORE THE CIT(A) CONSEQUENT TO THE ORDER PASSED BY THE TRIBUNAL DATED 26.11.2014 WAS 3 ITA NO. 237 /PUN/20 1 5 SHARVARI BUILDCON PVT. LTD. WHETHER WHERE THE RE - ASSESSMENT PROCEEDINGS HAVE BEEN ANNULLED BY THE TRIBUNAL A ND THEN, CAN 263 PROCEEDINGS SURVIVE? THE CIT(A) HELD THAT ONCE THE ORDER PASSED UNDER SECTION 147 R.W.S. 143(3) OF THE ACT, DATED 31.12.2011 HAD BEEN HELD TO BE BAD IN LAW AND ANNULLED , THE SAME CEASED TO EXIST AND HENCE, THERE WAS NO QUESTION OF REVISIN G THE SAME UNDER SECTION 263 OF THE ACT OR PASSING THE ORDER UNDER SECTION 143(3) R.W.S. 263 OF THE ACT. 5. THE REVENUE IS AGGRIEVED BY THE AFORESAID FINDINGS OF THE CIT(A) AND HENCE, THE PRESENT APPEAL. 6. SHRI MUKESH JHA APPEARED ON BEHALF OF THE REVENUE AND SHRI SANKET JOSHI APPEARED ON BEHALF OF THE ASSESSEE AND PUT FORWARD THEIR CONTENTIONS. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE LIMITED ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 263 OF THE ACT. IN THE FACTS OF THE PRESENT CASE, ORIGINAL ASSESSMENT WAS MADE UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. THE JURISDI CTIONAL ISSUE OF INITIATING RE - ASSESSMENT PROCEEDINGS UNDER SECTION 147 / 148 OF THE ACT WAS RAISED BEFORE THE TRIBUNAL AND THE TRIBUNAL IN THE APPEAL FILED BY THE REVENUE IN ITA NO. 1843/PN/2012 AND CROSS OBJECTIONS FILED BY THE ASSESSEE BEING CO NO.63/PN/ 2013, RELATING TO ASSESSMENT YEAR 2004 - 05, VIDE ORDER DATED 26.11.2014 ANNULLED THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. AFTER THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT, THE COMMISSIONER VIDE ORDER DATED 18.03.2013 HELD THE ASSESSMENT ORDER PASSED IN THE CASE TO BE BOTH ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE BUT THE COMMISSIONER SET ASIDE THE ASSESSMENT ORDER TO BE PASSED AFRESH BY THE ASSESSING OFFICER. HOWEVER, AFTER THE ORDER OF REVISION BY THE COMMISSIONER, THE TRIBUNAL VIDE ORDER DATED 4 ITA NO. 237 /PUN/20 1 5 SHARVARI BUILDCON PVT. LTD. 26.11.2014 ANNULLED THE ORIGINAL ASSESSMENT MADE IN THE CASE OF ASSESSEE, WHICH WAS THE ORDER REVIEWED BY THE COMMISSIONER DURING REVISION PROCEEDINGS. ONCE THE TRIBUNAL ANNULS THE ASSESSMENT ORDER ITSELF, THEN THE REVISION PROCEEDINGS WHICH HAD BEEN INITIATED AND COMPLETED AGAINST THE AFORESAID ORDER DO NOT SURVIVE. ACCORDINGLY, THERE IS NO MERIT IN THE PLEA OF REVENUE THAT THE PROCEEDINGS COMPLETED UNDER SECTION 263 OF THE ACT HAVE TO BE GI VEN EFFECT TO. UNDOUBTEDLY, THE ASSESSING OFFICER PASSED THE ORDER UNDER SECTION 143(3) R.W.S. 263 OF THE ACT ON 03.10.2013 I.E. BEFORE PASSING OF THE ORDER OF THE TRIBUNAL AGAINST ORIGINAL ASSESSMENT AND ANNULLING THE SAME ; THE SAID ORDER PASSED UNDER SE CTION 143(3) R.W.S. 263 OF THE ACT DO NOT SURVIVE, IN VIEW OF THE ORIGINAL ASSESSMENT ORDER BEING ANNULLED. ACCORDINGLY, WE UPHOLD THE ORDER OF CIT(A) IN THIS REGARD AND DISMISS THE GROUNDS OF APPEAL RAISED BY THE REVENUE. 8 . IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF OCTO BER , 201 7 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 30 TH OCTO BER , 201 7 . G G C C V V S S R R / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 2 , NASHIK ; 4. THE C IT - 2 , NASHIK ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE. / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE