M/S. TARUN R. JAIN, MUMBAI V. THE ITO 26(2)(2), MUMBAI

ITA 2694/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1300 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 18-01-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 17-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Assessee Lawyers: SATYENDRA K PANDEY
• Section: 143(3); 147; 68; 148

Judgement Text

ITA NO. 2694/MUM/2008 ASSESSMENT YEAR : 2002-03 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH, MUMBAI BEFORE, SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER) AND SHRI VIJAY PAL RAO (JUDICIAL MEMBER) ITA NO. 2694/MUM/2008 ASSESSMENT YEAR 2002-03 DATE OF HEARING : 16.6.2010 TARUN R. JAIN ...... APPELLANT B 2, SHANKESHWAR DARSHAN BEHIND MAZGAON TELEPHONE EXCHANGE MAZGAON, MUMBAI 400 010 PAN ADMPJ5158K VS. INCOME TAX OFFICER, WARD 26(2)(2) .. R ESPONDENT K.G. MITTAL AYURVEDIC HOSPITAL BUILDING CHARNI ROAD, MUMBAI 400 002 APPELLANT BY : SHRI SATYENDRA K. PANDEY RESPONDENT BY : SHRI NAVEEN GUPTA O R D E R PER PRAMOD KUMAR: 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AND IS D IRECTED AGAINST CIT(A)S ORDER DATED 25 TH JANUARY 2008, IN THE MATTER OF ASSESSMENT U/S 143( 3) R/W SECTION 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 2002-03. ITA NO. 2694/MUM/2008 ASSESSMENT YEAR : 2002-03 PAGE 2 OF 4 2. GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOLLOWS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. CIT(A) 1.1 ERRED IN CONFIRMING THE VALIDITY OF ORDER PASSE D U/S 143(3) R/W SECTION 147 OF THE ACT BY THE ASSESSING OFFICER , THE SAME IS PASSED BY THE ASSESSING OFFICER BEYOND TIME LIMIT P RESCRIBED U/S 143(3) OF THE ACT. THE ORDER PASSED BY THE ASSESSIN G OFFICER IS BAD ILLEGAL, VOID, AGAINST THE PROVISIONS OF LAW AND BE YOND JURISDICTION. 1.2 FAILED TO APPRECIATE THAT REASONS FOR RE-OPENIN G THE ASSESSMENT U/S 148 WERE NOT SUPPLIED TO THE ASSESSE E. WITHOUT PREJUDICE TO THE ABOVE 2. ERRED IN CONFIRMING THE ADDITION OF RS.40.00 LAK HS U/S 68 OF THE ACT. 2. LEARNED REPRESENTATIVES DO NOT DISPUTE THAT PRECISE REASONS FOR RE- OPENING THE ASSESSMENT HAVE NOT BEEN COMMUNICATED T O HE ASSESSEE. THERE IS NO DOUBT THAT THE MENTION OF THE REASONS OF THE RE-OPENING IS MADE IN THE ASSESSMENT ORDER BUT THESE REASONS ARE APPARENTLY I NCOMPLETE INASMUCH AS THERE IS NO INDICATION IN THE SAID REASONS TO THE E FFECT THAT ANY INCOME HAD ESCAPED ASSESSMENT. WITH THE CONSENT OF BOTH THE PA RTIES, WE DEEM IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF TH E ASSESSING OFFICER WITH DIRECTION TO FURNISH THE PRECISE REASONS FOR RE-OPE NING AS RECORDED BY THE ASSESSING OFFICER AND TO DEAL WITH THE OBJECTIONS T O THE SAID REASONS, IF ANY, SUCH OBJECTIONS ARE RAISED BY THE ASSESSING OFFICER BEFORE PROCEEDING TO FRAME RE-ASSESSMENT ORDER. IN OTHER WORDS, THE ASSE SSING OFFICER SHALL COMPLY WITH THE LEGAL PROCEDURE AS SET OUT IN GKW D RIVE SHAFT VS ITO, 259 ITR 19. WITH THESE DIRECTIONS, THE MATTER STANDS RE STORED TO THE FILE OF ASSESSING OFFICER. ITA NO. 2694/MUM/2008 ASSESSMENT YEAR : 2002-03 PAGE 3 OF 4 3. IN VIEW OF THE FACT THAT THE ISSUE REGARDING RE-OPE NING OF ASSESSMENT IS RESTORED TO THE FILE OF ASSESSING OFFICER FOR ADJUD ICATION DENOVO, THE OTHER GROUNDS RAISED IN THIS APPEAL BY THE ASSESSEE BECOM ES INFRUCTUOUS. HENCE, OTHER GROUNDS ARE DISMISSED AS INFRUCTUOUS. 4. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THI S _______ DAY OF JUNE 2010. SD/XX SD/XX (VIJAY PAL RAO) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; 25 TH DAY OF JUNE 2010. COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION), MUMBAI 4. COMMISSIONER (APPEALS) , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, E BENCH, ITAT, MUMB AI 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR PRADEEP J. CHOWDHURY INCOME TAX APPELLATE TRIBUNAL SR. PRIVATE SECRETARY MUMBAI BENCHES, MUMBAI ITA NO. 2694/MUM/2008 ASSESSMENT YEAR : 2002-03 PAGE 4 OF 4 DATE INITIAL 1. DRAFT DICTATED ON 18.6.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 21.6.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 21.6.2010 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 21.6.2010 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 21.6.2010 SR.PS/PS 6. DATE OF PRONOUNCEMENT 25.6.2010 SR.PS 7. FILE SENT TO THE BENCH CLERK 25.6.2010 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER