M/s. Tidel Park Ltd., CHENNAI V. ITO, CHENNAI

ITA 2486/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4645 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 26-08-2016
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Reopening of assessment
• Section: 143(3); 115JB; 148

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , J UDICIAL MEMBER ./ I.T.A.NO. 2486 /MDS/2016 / ASSESSMENT YEAR :20 02 - 0 3 M / S. TIDE L PARK LIMITED, NO. 4, RAJIV GANDHI SALAI, TARAMANI, CHENNAI 600 113. [PAN: A A B C T0666R ] VS. THE INCOME TAX OFFICER, CORPORATE CIRCLE 3 ( 1 ), CHENNAI . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI R. VIJAYARAGHAVAN , ADVOCATE / RESPONDENT BY : SHRI N . MADHAVAN , J CIT / DATE OF HEARING : 1 5 . 0 2 .201 7 / DATE OF P RONOUNCEMENT : 09 . 0 5 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 1 1 , CHENNAI DATED 20 . 0 5 .201 6 RELEVANT TO TH E ASSESSMENT YEAR 20 0 2 - 0 3 , WHEREIN , VARIOUS GROUNDS IN ITS APPEAL HAVE BEEN RAISED . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PROMOTION OF INFORMATION TECHNOLOGY PARK AND FILED ITS RETURN OF I.T.A. NO. 2486 /M/16 2 INCOME ON 31 . 1 0 .200 2 ADMI TTING INCOME OF . 31,30,55,970/ - UNDER SECTION 115JB OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] . THE RETURN FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ON 27.06.2003 . THEREAFTER, SINCE THE ASSESSING OFFICER HAS BELIEVED THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, THE ASSESSMENT WAS REOPENED BY ISSUE OF NOTICE UNDER SECTION 148 DATED 09.05.2006. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT WAS COMPLETED ON 27.03.2007 ASSESSIN G TOTAL INCOME OF THE ASSESSEE AT .20,51,10,674/ - AFTER MAKING VARIOUS ADDITIONS. SINCE THE INCOME COMPUTED UNDER NORMAL COMPUTATION WAS MORE THAN THE TAX PAYABLE UNDER SECTION 115JB OF THE ACT, THE TAX WAS LEVIED ON THE SAME. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND CONSIDERING THE FACTS OF THE CASE, THE LD. CIT(A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE. 4. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL RAISING VARIOUS GR OUNDS. BESIDES RAISING VARIOUS GROUNDS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS ERRED IN NON - ADJUDICATION OF LEGAL ISSUE OF LIMITATION. 5. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE ASSESSEE HAS NOT RAISED ANY SPECIFI C GROUNDS WITH REGARD TO REOPENING OF ASSESSMENT IN I.T.A. NO. 2486 /M/16 3 THE GROUNDS OF APPEAL . HOWEVER, HE HAS OBJECTED IF THE ISSUE IS REMITTED BACK TO THE FILE OF LD. CIT(A) FOR ADJUDICATION . 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN THIS CASE, THE ASSESSMENT UNDER SECTION 143(1) OF THE ACT WAS COMPLETED ON 27.06.2003. THEREAFTER, AFTER LAPSE OF FOUR YEAR S FROM THE RELEVANT ASSESSMENT YEARS, THE ASSESSING OFFICER REOPENED THE ASSESSMENT UNDE R SECTION 147 OF THE ACT BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT ON 09.05.2006 , IN VIOLATION OF PROVISIONS OF SECTION 147 OF THE ACT . IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS MENTIONED THAT THE CASE WAS POSTED FOR HEARING BY ISSUE OF NOTI CE UNDER SECTION 143(2) OF THE ACT , BUT, WHEN IT WAS ISSUED HAS NOT BEEN MENTIONED. FURTHER, THE ASSESSMENT ORDER DOES NOT SPEAK AS TO WHETHER THE ASSESSING OFFICER HAS RECORDED REASONS FOR REOPENING OF ASSESSMENT AFTER A LAPSE OF FOUR YEARS AND COMMUNICATED TO THE ASSESSEE OR NOT AND OBJECTIONS, IF ANY, HAS BEEN ADJUDICATED AND PASSED ORDER IN THIS REGARD. BEFORE THE LD. CIT(A), THE ASSESSEE HAS SPECIFICALLY RAISED A GROUND OF APPEAL IN GROUND NO. 2, THAT 2. THE INCOMETAX OFFICER ERRED IN REOPENING THE ASSESSMENT UNDER SECTION 147. BUT, ON PERUSAL OF THE APPELLATE ORDER, THE LD. CIT(A) HAS NOT ADJUDICATED THE LEGAL ISSUE WHILE ADJUDICATING OTHER GROUNDS. 6.1 IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED A GROUND IN 2.4 THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT FOLLOWING THE RATIO I.T.A. NO. 2486 /M/16 4 OF THE HON BLE MADRAS HIGH COURT IN THE CASE OF CIT V. ANNAMALAI FINANCE 275 ITR 451 . IN TH AT CASE , THE HON BLE HIGH COURT HAS ADJUDICATED ONE OF THE ISSUES WITH REGARD TO SERVICE OF NOTICE OF REOPENING OF ASSESSMENT AFTER EXPIRY OF THE PERIOD OF FOUR YEARS. EVEN OTHERWISE ALSO, THE ASSESSEE CAN RAISE THE ISSUE EMANATING FROM THE APPELLATE ORDER BEFORE THE TRIBUNAL. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE LEGAL ISSUE OF REOPENING OF ASSESSMENT UNDER SECTION 14 8 OF THE ACT AND PASS A SPEAKING ORDER. THUS, THE OTHER GROUNDS RAISED BY THE ASSESSEE ARE NO T REQUIRED TO BE ADJUDICATED ON MERITS AT THIS STAGE. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON THE 09 TH MAY , 201 7 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 09 . 0 5 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.