RELIANCE ENGINEERING ASSOCIATES P. LTD, MUMBAI V. ITO RG 3(3)(1), MUMBAI

ITA 2380/MUM/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75611 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 15-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO. 2380/MUM/2009 (ASSESSMENT YEAR: 2003-04) M/S. RELIANCE ENGINEERING INCOME TAX OFFICER - 3( 3)-1 ASSOCIATES PVT. LTD. AAYAKAR BHAVAN, M.K. ROAD 5TH FLOOR, MAKER CHAMBER-IV VS. MUMBAI 400020 222, NARIMAN POINT, MUMBAI 400021 PAN - AAACR4076J APPELLANT RESPONDENT ITA NO. 2811/MUM/2009 (ASSESSMENT YEAR: 2003-04) INCOME TAX OFFICER - 3(3)-1 M/S. RELIANCE ENGINEER ING AAYAKAR BHAVAN, M.K. ROAD ASSOCIATES PVT. LTD. MUMBAI 400020 VS. 5TH FLOOR, MAKER CHAMBER-IV 222, NARIMAN POINT, MUMBAI 400021 PAN AAACR4076J APPELLANT RESPONDENT APPELLANT BY: SHRI FARROKH V. IRANI RESPONDENT BY: SHRI SANJEEV JAIN DATE OF HEARING: 10.02.2014 DATE OF PRONOUNCEMENT: 19.02.2014 O R D E R PER D. MANMOHAN, V.P. THESE CROSS APPEALS PERTAIN TO A.Y. 2004-05. THOUGH THE ASSESSEE RAISED SEVERAL GROUNDS IN ITS GROUNDS OF APPEAL THE MAIN GROUND OF APPEAL IS WITH REGARD TO JURISDICTION OF THE AO TO REOPEN THE ASSESSMENT UNDER SECTION 147 OF THE ACT. 2. THE LEARNED COUNSEL FOR THE ASSESSEE ADVERTED OUR A TTENTION TO THE GROUNDS OF APPEAL FILED BEFORE THE CIT(A) TO SUBMIT THAT THIS VERY GROUND WAS URGED BEFORE THE CIT(A) BUT HE CHOSE NOT TO DISPOSE OF THIS GROUND BY MERELY OBSERVING AS UNDER: - ITA NO. 2380 & 2811/MUM/2009 M/S. RELIANCE ENGINEERING ASSOCIATES P. LTD. 2 THE FIRST GROUND OF APPEAL IS AGAINST INITIATION O F ACTION U/S. 148 AND SUBSEQUENT REASSESSMENT. IN THIS GROUND OF APPEAL, IT IS CLAIMED THAT THE REOPENING OF ASSESSMENT IS BAD IN LAW. HOWEVER, IN THE COURSE OF APPELLATE PROCEEDINGS, NO SPECIFIC OBJECTION TO THE REOPENING OF ASSESSMENT HAS BEEN RAISED. CONSEQUENTLY THE GROUND OF APPEAL IS REJECT ED. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THE ASSESSEE HAS NOT WITHDRAWN ITS GROUND WITH REGARD TO JURISDICTION TO REOPEN THE ASSESSMENT BUT THE FIRST APPELLATE AUTHORITY HAS ERRONEOUSLY PROCE EDED ON THE FOOTING THAT THERE IS NO NEED TO DISPOSE OF THIS GROUND AND HENC E THE ORDER DESERVES TO BE SET ASIDE. HE ALSO SUBMITTED THAT EVEN IN A CASE WH ERE SUCH GROUND IS URGED BEFORE THE TRIBUNAL FOR THE FIRST TIME IT HAS TO BE TAKEN INTO CONSIDERATION SINCE THE FACTS ARE ALREADY ON RECORD AND THE ASSESSEE HA S A STRONG CASE ON THE ISSUE OF VALIDITY OF REOPENING OF ASSESSMENT AND THUS THE FIRST APPELLATE AUTHORITY WAS NOT JUSTIFIED IN PROCEEDING TO DISPOSE OF THE A PPEAL ON MERITS. 3. WE HAVE ALSO HEARD THE LEARNED D.R. ON THIS ISSUE A ND PERUSED THE RECORD. AT THE OUTSET WE NOTICED THAT WHEN AN ASSES SEE RAISES A GROUND BEFORE THE CIT(A) IT IS INCUMBENT UPON THE FIRST APPELLATE AUTHORITY TO DISPOSE OF THE SAID ISSUE ON MERITS UNLESS THE ASSESSEE CHOOSES TO WITHDRAW SUCH GROUND. IT IS NOT MENTIONED IN THE ORDER PASSED BY THE CIT(A) THAT THE ASSESSEE HAS SPECIFICALLY WITHDRAWN ITS GROUND. IN FACT, THE AUT HORISED REPRESENTATIVE, WHO APPEARED BEFORE THE CIT(A), FILED A LETTER STATING THAT HE HAS PRESSED THIS ISSUE BEFORE THE CIT(A). SUCH BEING THE CASE, WE ARE OF T HE VIEW THAT THE ORDER PASSED BY THE CIT(A), BY IGNORING THE EFFECTIVE GRO UND OF APPEAL, DESERVES TO BE SET ASIDE. THEREFORE, AS DECLARED IN THE OPEN CO URT, WE SET ASIDE THE ORDER PASSED BY THE CIT(A) AND DIRECT HIM TO RECONSIDER T HE APPEAL ON MERITS. NEEDLESS TO OBSERVE THAT HE SHALL NOT ONLY RECONSID ER THE GROUND CONCERNING VALIDITY OF REOPENING OF THE ASSESSMENT BUT ALSO ON OTHER GROUNDS AFRESH, ON MERITS. WITH THESE OBSERVATIONS THE APPEAL FILED BY THE ASSESSEE AS WELL AS THE APPEAL FILED BY THE REVENUE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH FEBRUARY, 2014. SD/- SD/- (SANJAY ARORA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 19 TH FEBRUARY, 2014 ITA NO. 2380 & 2811/MUM/2009 M/S. RELIANCE ENGINEERING ASSOCIATES P. LTD. 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 7, MUMBAI 4. THE CIT 3, MUMBAI CITY 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.