KBA INFRASTRUCTURE P.LTD, MUMBAI V. PR.CIT-10, MUMBAI

ITA 2543/MUM/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2562 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 24-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DINKLE HARIYA RASHMI VYAS
• Keywords: Revision of order; Opportunity of being heard; Principle of natural justice
• Section: 263; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “H” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI SANDEEP SINGH KARHAIL (JUDICIAL MEMBER) ITA No. 2543/MUM/2018 Assessment Year: 2010-11 KBA Infrastructure P. Ltd., 31, Jai Hind Cottage, Shahaji Raje Marg, Vile Parle (E), Mumbai-400057. Vs. Pr. CIT-10, Room No. 416/482, 4 th floor, Aayakar Bhavan, M.K. Road, Mumbai-400020. PAN No. AADCK 8198 B Appellant Respondent Assessee by : Ms. Dinkle Hariya/Ms. Rashmi Vyas, AR Revenue by : Mr. Vinay Sinha, CIT-DR Date of Hearing : 21/06/2022 Date of pronouncement : 27/07/2022 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 21.03.2018 passed by the Ld. Commissioner of Income-tax (Appeals)-10, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2010-11, raising following ground: 1.1 The Learned Principal Commissioner of Income Mumbai ["Ld. CIT"], erred in framing the revision order u/s. 2 Income - tax Act, 1961 ["the Act"] by not giving proper, sufficient and effective opportunity of being heard to the Appellant. 1.2 It is submitted that in the facts and the circumstances of the case, and in law, the order is required to be held breach of the principles of natural justice, as well as non mind to the facts and the contentions brought on record by the Appellant. WITHOUT PREJUDICE TO THE ABOVE 2. REVISION ILLEGAL 2.1 The Ld. CIT erred in passing t revising the assessment order passed by the A.O. u/s. 143 (3) r.w.s. 147 of the Act. 2.2 It is submitted that in the facts and the circumstances of the case, and in law, conditions for initiating completion thereof were not fulfilled. 2.3 Without prejudice to the generality of the above, the CIT failed to appreciate that: (i) The assessment order framed was not "erroneous" within the meaning of section 263 of the Act; KBA Infrastructure P. Ltd. The Learned Principal Commissioner of Income Mumbai ["Ld. CIT"], erred in framing the revision order u/s. 2 tax Act, 1961 ["the Act"] by not giving proper, sufficient and effective opportunity of being heard to the Appellant. It is submitted that in the facts and the circumstances of the case, and in law, the order is required to be held as bad and illegal in breach of the principles of natural justice, as well as non-application of mind to the facts and the contentions brought on record by the WITHOUT PREJUDICE TO THE ABOVE REVISION ILLEGAL The Ld. CIT erred in passing the order us. 263 of the Act, assessment order passed by the A.O. u/s. 143 (3) r.w.s. 147 It is submitted that in the facts and the circumstances of the case, and in law, the order is bad, illegal and void as necessary pre ditions for initiating the revision proceeding as well as the completion thereof were not fulfilled. Without prejudice to the generality of the above, the CIT failed that: The assessment order framed was not "erroneous" within the ning of section 263 of the Act; KBA Infrastructure P. Ltd. ITA No. 2543/M/2018 2 The Learned Principal Commissioner of Income - tax - 10, Mumbai ["Ld. CIT"], erred in framing the revision order u/s. 263 of the tax Act, 1961 ["the Act"] by not giving proper, sufficient and It is submitted that in the facts and the circumstances of the as bad and illegal in application of mind to the facts and the contentions brought on record by the he order us. 263 of the Act, assessment order passed by the A.O. u/s. 143 (3) r.w.s. 147 It is submitted that in the facts and the circumstances of the the order is bad, illegal and void as necessary pre - the revision proceeding as well as the Without prejudice to the generality of the above, the CIT failed The assessment order framed was not "erroneous" within the (ii) even otherwise, there was no lack of investigation / inquiry and no non - application of mind on the part of the A.0. while framing the assessment order; and (iii) in any case, the assessment order was not "prejudicial interest of the revenue" within the meaning of section 263 of the Act. 2.4 It is submitted that in the facts and the circumstances of the case, and in law, 2. At the outset, the Ld. Counsel of the asse the appellate proceedings in respect of consequent assessment passed under order section 143(3) read with section Income-tax Act, 1961 (in short ‘the succeeding before the Ld. CIT(A) on withdraw the appeal with liberty to agitate all grounds in future case appeal is not decided in favour of the assessee. part of his letter dated 24.06.2022 is reproduced as under: “(iv) However, since the AO ha Appellant seeks liberty of the Hon’ble Tribunal to withdraw the present appeal with a liberty to agitate all grounds in future proceedings and oblige. KBA Infrastructure P. Ltd. even otherwise, there was no lack of investigation / inquiry and no application of mind on the part of the A.0. while framing the assessment order; and in any case, the assessment order was not "prejudicial of the revenue" within the meaning of section 263 of the Act. It is submitted that in the facts and the circumstances of the case, and in law, no revision u/s. 263 of the Act was called for. At the outset, the Ld. Counsel of the assessee submitted that the appellate proceedings in respect of consequent assessment under order section 143(3) read with section tax Act, 1961 (in short ‘the Act’), the assessee is confident of succeeding before the Ld. CIT(A) on merit and therefore seeks to withdraw the appeal with liberty to agitate all grounds in future case appeal is not decided in favour of the assessee. part of his letter dated 24.06.2022 is reproduced as under: However, since the AO has not yet prepared the Remand Report, the Appellant seeks liberty of the Hon’ble Tribunal to withdraw the present appeal with a liberty to agitate all grounds in future proceedings and oblige. KBA Infrastructure P. Ltd. ITA No. 2543/M/2018 3 even otherwise, there was no lack of investigation / inquiry and no application of mind on the part of the A.0. while framing the in any case, the assessment order was not "prejudicial to the of the revenue" within the meaning of section 263 of the Act. It is submitted that in the facts and the circumstances of the no revision u/s. 263 of the Act was called for. ssee submitted that in the appellate proceedings in respect of consequent assessment under order section 143(3) read with section 263 of the assessee is confident of merit and therefore seeks to withdraw the appeal with liberty to agitate all grounds in future, in case appeal is not decided in favour of the assessee. The relevant part of his letter dated 24.06.2022 is reproduced as under: s not yet prepared the Remand Report, the Appellant seeks liberty of the Hon’ble Tribunal to withdraw the present appeal with a liberty to agitate all grounds in future proceedings and oblige.” 3. In view of withdraw is dismissed as infructuous. However, with a liberty to request for recall of the appeal in case the assessee does not succeed before the Ld. CIT(A) in appeal against the assessment order consequent to order u/s 263 of the Act. 4. In the result, the a Order pronounced in the Court on Sd/- (SANDEEP SINGH KARHAIL JUDICIAL MEMBER Mumbai; Dated: 27/07/2022 Rahul Sharma, Sr. P.S. 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// KBA Infrastructure P. Ltd. In view of withdrawal of the appeal by the assessee is dismissed as infructuous. However, with a liberty to request for recall of the appeal in case the assessee does not succeed before the Ld. CIT(A) in appeal against the assessment order consequent to order u/s 263 of the Act. In the result, the appeal filed by the assessee is dismissed. ounced in the Court on 27/07/2022. Sd/- SANDEEP SINGH KARHAIL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai KBA Infrastructure P. Ltd. ITA No. 2543/M/2018 4 by the assessee, the same is dismissed as infructuous. However, with a liberty to request for recall of the appeal in case the assessee does not succeed before the Ld. CIT(A) in appeal against the assessment order consequent to ppeal filed by the assessee is dismissed. - OM PRAKASH KANT) MEMBER Sr. Private Secretary) ITAT, Mumbai