ASST CIT RG 21(3), MUMBAI V. AHUJA EXPORTS, MUMBAI

ITA 2769/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3859 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 24-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ISHWER P RATHI
• Section: 143(3); 80HHC; 260A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI D. KARUNAKARA RAO, ACCOUNTAT MEMBER I.T.A. NO. 2769/MUM/2012 ASSESSMENT YEAR: 2001-2002 ASST CIT RG(3) C-11 BLDG, 5 TH FLOOR, PRATYAKSHAKAR BHVAN, BKC BANDRA (E) MUMBAI- 400051 VS. M/S. AHUJA EXPORTS 105 NEW TEJPAL INDL ESTAE, ANDHEIR KURLA RD, SAKINAKA KURLA RD, SAKINAKA MUMBAI- PIN- 400072 PAN: AAEFA6982F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANOJ KUMAR RESPONDENT BY : SHRI ISHWER P. RATHI DATE OF HEARING: 09.05.2013 DATE OF ORDER: 16.05.2013 O R D E R PER D. KARUNAKARA RAO, AM: THIS IS APPEAL FILED BY THE REVENUE AGAINST THE ORD ER OF THE CIT(A)- 32 DATED 23.02.12 FOR THE AY 2001-2002. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE ASSESS MENT ORDER PASSED ON 16.12.2010 U/S 143(3) R.W.S. 254 AS INFRUCTUOUS AND INVALID IN THE EYES OF LAW, IN VIEW OF THE FACT THAT THE ASSESSMENT ORD ER U/S 147 OF THE ACT, DATED 12.12.2006 ITSELF QUASHED BY THE HONBLE ITAT . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE ASSESS MENT ORDER PASSED ON 16.12.2010 U/S 143(3) R.W.S. 254 AS NULL AND VOID, ON THE BASIS OF ASSESSMENT ORDER U/S 147 OF THE ACT, DATED 12.12.20 06 ITSELF, WAS QUASHED BY THE HONBLE ITAT IGNORING, THAT THE ORDE R OF THE HONBLE ITAT QUASHING THE ASSESSMENT ORDER DATED 12.12.2006 WAS NOT ACCEPTED BY THE REVENUE AND FURTHER APPEAL U/S 260A HAS BEEN FILED BEFORE THE HONBLE HIGH COURT WHICH IS PENDING.. 2 ITA NO. 2769/MUM/2012 M/S AHUJA EXPORTS 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME DECLARING INCOME OF RS. 1,11,92,100/-. IN TH E ASSESSMENT MADE UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT, AO DETERMI NED THE ASSESSED INCOME AT RS. 3,98,28,600/-. IN THE ASSESSMENT THE CLAIM OF DEDU CTION UNDER SECTION 80HHC OF THE ACT WAS DENIED IN RESPECT OF THE DEPB RECEIPT. THE MATTER TRAVELLED TO THE CIT(A) AGAINST THE SAID REASSESSMENT ORDER. THE CIT(A) CON FIRMED THE VALIDITY OF THE ASSUMPTION OF JURISDICTION FOR RE-ASSESSMENT. ACCOR DINGLY, ASSESSEE IS IN APPEAL AGAINST THE SAID DECISION OF THE CIT(A). AS ON DATE , THERE ARE TWO ORDER OF ITAT ORIGINATING FROM THE SAID REASSESSMENT ORDER DATED 12.12.2006 IE (I) ONE ORDER OF THE ITAT VIDE THE REVENUE APPEAL RELATES TO SETTING ASIDE THE ISSUE OF DISALLOWANCE UNDER SECTION 80HHC FOR RE-DECIDING THE ISSUE AS PER THE JUDGMENT IN TH E TOPMAN EXPORTS AND (II) THE OTHER DECISION OF THE TRIBUNAL (ITA NO. 6036/M/2008) RELATES TO THE VALIDITY OF THE REOPENING OF THE ASSESSMENT COMPLETED ON 12.12.2006. 4. IN THE BACKGROUND OF THE ABOVE DEVELOPMENTS, LD . COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE CONTENT OF PARA 3.3 OF THE IMPUGNED ORDER AND MENTIONED THAT THE IMPUGNED ASSESSMENT ORDER DATED 16.12.2010 IS THE FRESH ASSESSMENT ORDER GIVING EFFECT TO THE ORDER OF THE ITAT NO. 6072/M/2008 DATED 30.10.09. FURTHER, HE MENTIONED THAT THE ISSUE RELA TING TO THE VALIDITY OF THE NOTICE ISSUED U/S 148 OF THE ACT HAS NOW REACHED THE FINAL ITY VIDE THE ORDER OF THE TRIBUNAL DATED 11.02.11 QUASHING THE REASSESSMENT PROCEEDING S. THEREFORE, AS DISCUSSED BY THE CIT(A) IN PARA 3.3 OF THE IMPUGNED ORDER, THE A PPEAL OF THE REVENUE BECOMES INFRUCTUOUS AND THE SAME HAS TO BE QUASHED AS INFRUCTUOUS . 5. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED ON THE ORDER OF THE AO. 6. WE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AS WELL AS THE OTHER INFORMATION PLACED BEFORE US. WE HAVE ALS O GONE THROUGH THE ORDER OF THE TRIBUNAL DATED 11.02.11 IN CONNECTION WITH ITA NO. 6036/MUM/2008 AND FIND THE IMPUGNED REASSESSMENT ORDER BECOMES INVALID FOR THE REASONS DESCRIBED IN PARA-11 OF THE ORDER OF THE TRIBUNAL. RELEVANT LINE FROM PA RA-11 READS AS UNDER: RESPECTFULLY FOLLOWING THE PRECEDENTS WE HOLD THAT THE REASSESSMENT WAS WRONGLY INITIATED BY THE A.O . IN THE INSTANT CASE. 3 ITA NO. 2769/MUM/2012 M/S AHUJA EXPORTS 7. FURTHER, WE HAVE ALSO PERUSED THE PARA 3.3 OF TH E IMPUGNED ORDER OF THE CIT(A) QUASHING THE REASSESSMENT ORDER AND FOUND TH E SAME READS AS FOLLOWS: 3.3 I HAVE CONSIDERED THE ARGUMENTS OF THE LD.AR. IN THIS CASE THERE ARE TWO ORDERS OF THE ITAT AGAINST THE SAME ASSESSMENT ORDER OR CIT(A) ORDER; ONE IN REVENUES APPEAL WHEREIN THE A SSESSMENT ORDER DT. 12./12/2006 WAS SET ASIDE TO FILE OF AO BE DECIDED AS PER TOPMAN EXPORTS AND SECOND IN ASSESSEES APPEAL WHERE THE ITAT HAS NOW HELD THAT THE REOPENING WAS NOT VALIDLY INITIATED AND HENCE QUASH ED THE ASSESSMENT ORDER DT. 12/12/2006 ITSELF. SINCE THE ISSUE OF INV OKING PROVISIONS U/S 147 GOES TO THE ROUTE OF THE JURISDICTION TO MAKE AN AS SESSMENT, THEREFORE ONCE THE JURISDICTION TO MAKE ASSESSMENT HAS BEEN H ELD BY ITAT TO BE BAD IN LAW IN ASSESSEES APPEAL, THE ORIGINAL ASSES SMENT ORDER DT. 12/12/2006 BECOMES NON-EST AB INITIO AND THEREFORE ANY SUBSEQUENT REVISION U/S 254 REVISING SUCH ORIGINAL ASSESSMENT AS PER DIRECTION OF ITAT IN REVENUES APPEAL, ALSO BECOMES VOID. UNDER THESE CIRCUMSTANCES, THE ASSESSMENT PASSED NOW ON 16/12/2010 U/S 147 R/W 254 BECOMES IN FRUCTUOUS AND INVALID IN THE EYES OF LAW. ACCORDINGLY, THE ASSESSMENT MADE AS PER SUCH ORDER CANNOT BE SUSTAINED AS THE S AME IS NULL & VOID. 8. THUS, REASSESSMENT ORDER DATED 12/12/2006 IS HEL D INVALID BY THE ORDER OF THE TRIBUNAL DATED 11.02.2011. IN FACT, CIT(A) HELD THA T THE REASSESSMENT ORDER IS NOT LEGALLY SUSTAINABLE AS THE SAME IS NULL & VOID. WE AGREE WITH THE SAME. CONSEQUENTLY, THE GROUNDS RAISED BY THE REVENUE IN THE APPEAL BEF ORE US SHOULD BE DISMISSED AS INFRUCTUOUS . THUS, THE ORDER OF THE CIT(A) DOES NOT CALL FOR A NY INTERFERENCE. ACCORDINGLY, GROUNDS OF THE REVENUE ARE DISMISSED. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF MAY, 2013. SD/- SD/- (H.L. KARWA) (D. KAR UNAKARA RAO) PRESIDENT ACCOUNTANT MEMBER DATE : 16.05.2013 AT :MUMBAI SK 4 ITA NO. 2769/MUM/2012 M/S AHUJA EXPORTS COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (A), CONCERNED. 4. THE CIT CONCERNED. 5. THE DR A, BENCH, ITAT, MUMBAI. 6. GUARD FILE. // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI