M/s Hind Syntex Ltd., Dewas V. The ITO, Dewas

ITA 256/IND/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70044 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 03-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S DESHPANDE
• Keywords: Rectification of order; Period of limitation; Time period of passing order
• Section: 143(3); 234B; 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : AAA CH6203P I.T.A.NO. 256 /IND/201 2 A.Y. : 1990-91 M/S.HIND SYNTEX LTD., 1A & 8A, INDUSTRIAL AREA, A.B. ROAD, DEWAS VS. ITO , DEWAS APPELLANT RESPONDENT APPELLANT BY : SHRI S.S.DESHPANDE, C. A. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 24 . 10 .201 3 DATE OF PRONOUNCEMENT : 25 . 10 .201 3 O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CIT(A), DATED 29.2.2012 FOR THE ASSES SMENT YEAR 1990-91 IN THE MATTER OF ORDER PASSED BY THE ASSESS ING OFFICER U/S 154 OF THE INCOME-TAX ACT, 1961. M/S. HIND SYNTEX LIMTED, DEWAS I.T.A.NOS. 256/IND/2012 A.Y. 1990-91 2 PAGE 2 OF 7 2. IT WAS CONTENDED BY THE LD. AUTHORIZED REPRESENTATI VE THAT ORDER PASSED BY THE ASSESSING OFFICER U/S 154 MAKING THE ASSESSEE LIABLE TO PAY INTEREST U/S 220(2) FROM THE DATE OF ORIGINAL ORDER WHEN NO DEMAND WAS DUE AGAINST THE A SSESSEE, WAS INVALID. A LEGAL PLEA WAS ALSO TAKEN BEFORE US WITH REGARD TO VALIDITY OF ORDER PASSED U/S 154, WHICH WAS BEYO ND FOUR YEARS FROM THE DATE OF ORDER, WHICH WAS ALLEGED TO BE RECTIFIED. 3. ON THE OTHER HAND, THE LD.SR. DR, SHRI R. A. VERMA CONTENDED THAT THE ORDER PASSED BY THE ASSESSING OF FICER DATED 15.2.2010 IS NOT AN ORDER U/S 154, BUT IT IS AN ORDER PASSED U/S 143, THEREFORE, LIMITATION PERIOD AS PRE SCRIBED U/S 154(7) IS NOT APPLICABLE TO SUCH ORDER. HE FURTHER CONTENDED THAT THIS ORDER WAS PASSED BY THE ASSESSING OFFICER TO GIVE EFFECT TO THE ORDER PASSED BY HON'BLE HIGH COURT FO R WHICH THERE IS NO TIME LIMITATION AND ASSESSING OFFICER H AS CORRECTLY PASSED THE ORDER WITHIN THE LIMITATION PERIOD. IN S UPPORT OF HIS PROPOSITION, HE PLACED ON RECORD THE ORDER OF HON'B LE KERALA HIGH COURT IN THE CASE OF K.P.PAULOSE & CO., 142 CT R 476, WHEREIN IT WAS HELD THAT TIME LIMITATION PERIOD PRO VIDED U/S M/S. HIND SYNTEX LIMTED, DEWAS I.T.A.NOS. 256/IND/2012 A.Y. 1990-91 3 PAGE 3 OF 7 154(7) IS NOT APPLICABLE TO THE ORDER PASSED TO GIV E EFFECT TO THE ORDER OF THE HIGH COURT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ASSESSING OFFICER HAS BASICALL Y RECTIFIED ITNS-150 DATED 8.3.2005, WHEREIN INTEREST U/S 234B WAS NOT LEVIED CORRECTLY. ACCORDINGLY, THE ASSESSING OFFICE R PASSED ORDER U/S 15.2.2010 AND INTEREST U/S 234B WAS CHARG ED. IN THIS ORDER OF RECTIFICATION, THE ASSESSING OFFICER ALSO CHARGED INTEREST U/S 220(2) ON THE SHORT FALL OF PAYMENT OF DEMAND. BY THE IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE A CTION OF ASSESSING OFFICER WITH REGARD TO QUANTUM OF INTERES T CHARGEABLE U/S 234B AS WELL AS U/S 220(2) OF THE AC T. 5. FROM THE RECORD, WE FOUND THAT THE ASSESSING OFFICE R HAS GIVEN FOLLOWING TABLE IN HIS ORDER U/S 154 WITH REGARD TO VARIOUS ORDERS PASSED BY THE DEPARTMENT :- S.NO. A.Y. R.I. R.T. A.I. A.T. U/S D.O.A. 1. 1990-91 1,13,11,860 68,69,564 1,19,93,682 64,76, 587 143(3) 12.11.92 2. 1990-91 CIT(A)-IT NO.757/92-93 30/2 DATED 10.01. 1994 143(3)/ 250/154 7.1.1993 3. 1990-91 1,13,11,860 68,69,564 1,36,53,763 73,73, 032 143(3)/ 263 30.1.1996 4. 1990-91 CIT(A)NO.IT-500/96- 97/379/355 DATED 8.12.1997 1,70,84,076 68,75,401 143(3)/ 263/250 14.1.1998 5. 1990-91 1,13,11,860 68,69,564 1,20,84,076 68,75, 401 143(3)/ 263/250/154 16.2.1998 6. 1990-91 ITAT NO.24 DATED 28.10.2004 1,35,33,915 73,08,310 143(3)/ 263/250/154 8.3.2005 M/S. HIND SYNTEX LIMTED, DEWAS I.T.A.NOS. 256/IND/2012 A.Y. 1990-91 4 PAGE 4 OF 7 7. 1990-91 HIGH COURT NO. MCC INCOME-TAX ACT, 1961,- 72/2005-06/521 DATED 3.8.2007 1,35,33,915 73,08,310 143(3)/ 263/250/254/260A 3.8.2007 6. IT IS CLEAR FROM THE ABOVE TABLE GIVEN BY THE ASSES SING OFFICER IN HIS ORDER U/S 154 THAT LAST ORDER WAS PA SSED BY THE HIGH COURT ON 3.8.2007. PRIOR TO IT, LAST ORDER PAS SED BY THE DEPARTMENT WAS ON 8.3.2005. ALL THE OTHER ORDERS PA SSED BY THE DEPARTMENT AS MENTIONED FROM SERIAL NOS. 1 TO 6 WAS PRIOR TO 8.3.2005. IF WE CALCULATE THE LIMITATION PERIOD WITHIN WHICH ORDER U/S 154 CAN BE PASSED I.E. WITHIN FOUR YEARS, THE SAME WORKS OUT TO BE 7.3.2009. THE ORDER MENTIONED AT SE RIAL NO. 6. ORDER PASSED BY THE HIGH COURT ON 3.8.2007. LIMITAT ION WITHIN WHICH ORDER U/S 154 CAN BE PASSED IS TO BE SEEN WIT H RESPECT TO THE DATE OF ORDER WHICH IS SOUGHT TO BE RECTIFIE D. IN THE INSTANT CASE, ALL THE ORDERS PASSED BY THE DEPARTME NT AS MENTIONED FROM SERIAL NOS. 1 TO 6 FALLS BEYOND THE PERIOD OF FOUR YEARS FROM THE DATE OF ORDER U/S 154 DATED 15. 2.2010. THE LD. SENIOR DR WAS ALSO ASKED TO FILE HIS COMMEN TS WITH REGARD TO ORDER SOUGHT TO BE RECTIFIED BY THE ASSES SING OFFICER SO AS TO DETERMINE VALIDITY OF THE ORDER WITH REFER ENCE TO THE PERIOD OF LIMITATION. THE LD. SENIOR DR FILED A REP ORT CALLED FROM M/S. HIND SYNTEX LIMTED, DEWAS I.T.A.NOS. 256/IND/2012 A.Y. 1990-91 5 PAGE 5 OF 7 CONCERNED OFFICER. AS PER THE REPORT FILED BY THE A SSESSING OFFICER DATED 28.8.2013, SAME ORDERS WERE MENTIONED AND COMMENTS OF THE ASSESSING OFFICER WAS AS UNDER :- THUS, THE LAST ORDER WAS PASSED BY HON'BLE HIGH COURT VIDE ORDER NO. MMC ITA-72/2005-06/521 DATED 3.8.2007 IN CONSEQUENCE OF HIGH COURTS ORDER, THE ORDER U/S 154 WAS PASSED BY THE ASSESSING OFFICER, THEREFORE, THE CONTENTION/ADDITIONAL GROUND TAKEN BY THE ASSESSEE COMPANY I.E. THE ORDER PASSED BY THE ASSESSING OFFICER IS BEYOND FOUR YEARS IS ILLEGAL AND BAD IN LAW IS NOT CORRECT BECAUSE THE ORDER U/S 154 OF THE INCOME-TAX ACT, 1961, WAS PASSED BY THE ASSESSING OFFICER CONSEQUENT TO THE ORDER OF HON'BLE HIGH COURTS DECISIONS WHICH IS PASSED ON 3.8.2007 AND ORDER U/S 154 WAS PASSED ON 15.02.2010 IS WITHIN THE FOUR YEARS OF THE LAST ORDER PASSED BY THE HON'BLE HIGH COURT. THEREFORE, THE CONTENTION PUT FORTH BY THE ASSESSEE COMPANY IS NOT CORRECT AND NO T ACCEPTABLE. THE ORDER U/S 154 WAS PASSED BY THE M/S. HIND SYNTEX LIMTED, DEWAS I.T.A.NOS. 256/IND/2012 A.Y. 1990-91 6 PAGE 6 OF 7 ASSESSING OFFICER WELL WITHIN THE TIME LIMIT PRESCRIBED BY THE ACT. IN VIEW OF THE ABOVE FACTS T HE HON'BLE COURT IS PRAYED THAT THE ADDITIONAL GROUND SUBMITTED BY THE ASSESSEE COMPANY IS NOT ENTERTAINABLE AND LIABLE TO REJECT. 7. AS PER ABOVE REPORT, THE ASSESSING OFFICER WAS OF THE VIEW THAT ORDER U/S 154 WAS PASSED TO RECTIFY THE O RDER OF HIGH COURT DATED 3.8.2007, AS THE SAME WAS WITHIN FOUR Y EARS, THE ORDER PASSED BY THE ASSESSING OFFICER U/S 154 DATED 15.2.2010 IS WELL WITHIN THE TIME LIMIT OF FOUR YEA RS. AS PER OUR CONSIDERED VIEW, ORDER U/S 154 IS PASSED TO RECTIFY AN ORDER PASSED BY THE DEPARTMENT. HOWEVER, U/S 154, NO POWE R IS GIVEN TO THE DEPARTMENT TO PASS ORDER TO RECTIFY TH E ORDER PASSED BY THE HIGH COURT. ACCORDINGLY, PLEA OF THE ASSESSING OFFICER THAT THIS RECTIFICATION ORDER DATED 15.2.20 10 WAS PASSED TO RECTIFY THE ORDER PASSED BY THE HIGH COUR T DATED 3.8.2007, HAS NO LEGS TO STAND. 8. AS THE ORDER PASSED BY THE ASSESSING OFFICER U/S 15 4 IS BEYOND THE LIMITATION PERIOD, THE SAME IS QUASHE D. M/S. HIND SYNTEX LIMTED, DEWAS I.T.A.NOS. 256/IND/2012 A.Y. 1990-91 7 PAGE 7 OF 7 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER, 2013. SD/- SD/- (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :25 TH OCTOBER, 2013. CPU* 2510