ORBIT CORPORATION LTD ( FORMERLY M/S. ORBIT BUILDCON & REALTY P.LTD SINCE MERGED WITH M/S, ORBIT CORPORATION LTD), MUMBAI V. DCIT CEN CIR 47, MUMBAI

ITA 2412/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3939 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 28-03-2013
• Court: TRIBUNAL
• Department Lawyers: DAYASAGAR
• Keywords: Opportunity of being heard
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER I.T.A. NO.2412/M/2013 (ASSESSMENT YEAR: 2007 - 2008 ) M/S. ORBIT CORPORATION LTD (FORMERLY M/S. ORBIT CONSTRUCTION & REALTORS P. LTD SINCE MERGED WITH M/S. ORBIT CORPORATION), THE VIEW, 165, DR. ANNIE BESANT ROAD, WORLI, MUMBAI - 12. / VS. DCIT, CENTRAL CIRCLE - 47, MUMBAI. ./ PAN : AAACK1544J ( / APPELLANT) .. ( / RESPONDENT ) I.T.A. NO.1688/M/2013 (ASSESSMENT YEAR: 2004 - 2005 ) I.T.A. NO.1689/M/2013 (ASSESSMENT YEAR: 2006 - 2007 ) I.T.A. NO.2977/M/2013 (ASSESSMENT YEAR: 2005 - 2006 ) M/S. ORBIT CORPORATION LTD (FORMERLY M/S. ORBIT CONSTRUCTION & REALTORS P. LTD SINCE MERGED WITH M/S. ORBIT CORPORATION), T HE VIEW, 165, DR. ANNIE BESANT ROAD, WORLI, MUMBAI - 12. / VS. DCIT, CENTRAL CIRCLE - 47, MUMBAI. ./ PAN : AAACO3920A ( / APPELLANT) .. ( / RESPONDENT ) I.T.A. NO.2978/M/2013 (ASSESSMENT YEAR: 2006 - 2007 ) I.T.A. NO.1687/M/2013 (ASSESSMENT YEAR: 2005 - 2006 ) I.T.A. NO.1690/M/2013 (ASSESSMENT YEAR: 2007 - 2008 ) I.T.A. NO.1691/M/2013 (ASSESSMENT YEAR: 2004 - 2005 ) M/S. ORBIT CORPORATION LTD THE VIEW, 165, DR. A NNIE BESANT ROAD, WORLI, MUMBAI - 12. / VS. DCIT, CENTRAL CIRCLE - 47, MUMBAI. ./ PAN : AAACO 3920A ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI RAKESH JOSHI / RESPONDENT BY : SHRI DAYASAGAR, CIT - DR / DATE OF HEARING : 23 .02.2016 / DATE OF PRONOUNCEMENT : 23 .02.2016 / O R D E R PER BENCH : THERE ARE EIGHT APPEALS UNDER CONSIDERATION. ALL THESE APPEALS ARE FILED BY THE ASSESSEE INVOLVING THE ASSESSMENT YEARS 2004 - 05 TO 2007 - 08. SINCE, THE ISSUES RAISED IN ALL THESE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD TOGE THER AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS OF THIS ORDER. 2 2. AT THE OUTSET, SHRI RAKESH JOSHI, LD COUNSEL FOR THE ASSESSEE DEMONSTRATED THAT IN ALL THE INSTANT APPEAL S , ASSESSEE RAISED A LEGAL GROUND QUESTIONING THE AOS DECISION IN MAKING ASSESSMENT U/S 153A R.W.S 143(3) OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE PROCEEDINGS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION ARE PENDING BEFORE THE HONBLE INCOME TAX SETTLEMENT COMMISSION FOR FINAL DISPOSAL. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE FILED A COPY OF THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE AY 2006 - 07 VIDE ITA NOS. 1458 & 1460/MUM/2013, DATED 30.6.2015 AND BROUGHT OUR ATTENTION TO PARAS 3 TO 5 OF THE S AID TRIBUNAL . FURTHER, HE ALSO FILED A COPY OF ANOTHER DECISION OF THE TRIBUNAL IN THE CASE OF SHRI PUJIT R. AGGARWAL VS. DCIT IN ITA NO. 1641 TO 1647/MUM/2013 FOR THE AYS 2004 - 05 TO 2010 - 11, DATED 4.9.2014 AND MENTIONED THAT IN THE ABOVE SAID CASES, AN I DENTICAL ISSUE CAME UP BEFORE THE TRIBUNAL. WHILE ADJUDICATING THOSE APPEALS, THE TRIBUNAL, AFTER HEARING BOTH THE PARTIES, ALLOWED THE APPEALS OF THE ASSESSEE FOR STATISTICAL PURPOSES WITH THE FOLLOWING COMMENTS VIDE PARA 5 OF THE SAID TRIBUNALS ORDER D ATED 30.6.2015. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, THE SAID RELEVANT PARA 5 IS EXTRACTED AS UNDER: - 5. IT IS QUITE WELL UNDERSTOOD THAT THE ITSC HAS EXCLUSIVE JURISDICTION OVER THE PROCEEDINGS IN THE COURSE OF WHICH CERTAIN INCOMES HAVE BEEN DIS CLOSED BY THE ASSESSEE; AND, THE FINAL OUTCOME OF THE PROCEEDINGS PENDING BEFORE THE ITSC AND THE INCOMES DETERMINED THEREOF WOULD HAVE TO BE STATUTORILY ADOPTED BY THE ASSESSING OFFICER FOR THE RELEVANT ASSESSMENT YEARS. OSTENSIBLY, THE MATTER IS PENDING BEFORE THE ITSC FOR FINAL DISPOSAL , AS CONTENDED BY THE LD REPRESENTATIVE FOR THE ASSESSEE BEFORE US. IN THIS BACKGROUND OF THE MATTER, THE IMPUGNED ORDER OF THE CIT (A) IS SET - ASIDE AND THE ASSESSMENT IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO PASS A FRESH ORDER IN ACCORDANCE WITH THE AWAITED FINAL ORDER OF THE ITSC. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD, BEFORE PASSING A FRESH ORDER IN ACCORDANCE WITH LAW. THUS, ON THIS ASP ECT, ASSESSEE SUCCEEDS FOR STATISTICAL PURPOSES WITH RESPECT TO GROUND OF APPEAL NOS. 1 TO 3. 3. AFTER HEARING BOTH THE PARTIES, WE FIND, THE LEGAL ISSUE UNDER CONSIDERATION IN ALL THESE APPEALS IS IDENTICAL TO THE ONE ALREADY DECIDED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE AND IN THE CASE OF PUJIT R. AGGARWAL (SUPRA). AS A RESULT, IT IS A SETTLED PROPOSITION OF LAW THAT ITSC HAS EXCLUSI VE JURISDICTION OVER THE PROCEEDINGS IN THE COURSE OF WHICH CERTAIN INCOME HAS BEEN DISCLOSED BY THE ASSESSEE. THE OUTCOME OF SUCH PROCEEDINGS HAS TO BE STATUTORILY ADOPTED BY THE AO IN RELEVANT AY . IN ALL THE APPEALS UNDER CONSIDERATION, ASSESSEE IS UND ISPUTEDLY BEFORE THE ITSC AND THE OUTCOME OF THE SAME IS AWAITED. IN THESE FACTUAL MATRIX, WE SET - ASIDE THE IMPUGNED ORDERS OF THE CIT (A) IN ALL THE APPEALS UNDER CONSIDERATION AND REMAND THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION WITH IDENTI CAL DIRECTIONS. THUS, 3 LEGAL ISSUE RAISED BY THE ASSESSEE IN ALL THE PRESENT APPEALS IS ALLOWED FOR STATISTICAL PURPOSES. 4. CONSIDERING OUR DECISION ON THE LEGAL GROUND RAISED IN ALL THE APPEALS, WE FIND, THE ADJUDICATION OF OTHER GROUNDS RAISED IN ALL TH E INSTANT APPEALS BECOMES ACADEMIC EXERCISE. THEREFORE, THE REST OF THE GROUNDS RAISED BY THE ASSESSEE IN ALL THE APPEALS ARE DISMISSED. 5. IN THE RESULT, ALL THE 8 APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN T HE OPEN COURT ON 23 RD FEBRUARY, 2016. S D / - S D / - ( PAWAN SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 23.2.2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI