Sri Mahalakshmi Shares Pvt. Ltd., CHENNAI V. ACIT, CHENNAI

ITA 2865/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4765 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 04-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURALI MOHAN
• Assessee Lawyers: R T VIJYARAGHAVAN
• Keywords: Difference of opinion; Change of opinion
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A (SMC) BENCH : CHENNAI . , [BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT M EMBER ] ./I.T.A. NO.2865/MDS/2016 / ASSESSMENT YEAR : 2004-2005. SRI MAHALAKSHMI SHARES P. LTD, NO.85, ARMENIAN STREET, CHENNAI 600 001. [PAN AAACS 9439G] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE VI(4) CHENNAI. ( !' / APPELLANT) ( # $!' /RESPONDENT) / APPELLANT BY : SHRI. R.T. VIJYARAGHAVAN, C.A. /RESPONDENT BY : SHRI.M. MURALI MOHAN, JCIT, /DATE OF HEARING : 25-04-2017 !' /DATE OF PRONOUNCEMENT : 26-04-2017 % / O R D E R ASSESSEE IN THIS APPEAL IS AGGRIEVED THAT LD. COMM ISSIONER OF INCOME TAX (APPEALS) UPHELD A DISALLOWANCE OF B11,8 5,895/- PAID BY IT TO SEBI AS TURNOVER CHARGES. 2. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ORIGIN AL ASSESSMENT WAS COMPLETED ON 01.11.2006 U/S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), ACCEPTING THE RETURNED INCOME OF ITA NO.2865/MDS/2016 :- 2 -: RS.17,09,220/-. AS PER LD. AUTHORISED REPRESENTATI VE LD. ASSESSING OFFICER HAD DURING THE COURSE OF SUCH ASSESSMENT P ROCEEDINGS VERIFIED THE PROFIT AND LOSS ACCOUNT WHEREIN THE SUM OF RS.1 1,85,895/- WAS DEBITED AS SEBI TURNOVER CHARGES AND THEREAFTER C OMPLETED THE ASSESSMENT. ACCORDING TO HIM, THE REOPENING WAS DO NE BASED ON A CHANGE OF OPINION, TAKING A STAND THAT THERE WAS AN EXCESS CLAIM OF B5,33,129/-. FURTHER AS PER LD. AUTHORISED REPRESEN TATIVE LD. ASSESSING OFFICER HAD DISALLOWED THE CLAIM OF B11,85,898/- C ITING A REASON THAT IT PERTAINED TO THE PERIOD 1996 TO 2002 AND WAS NOT IN CURRED IN THE RELEVANT PREVIOUS YEAR. AS PER LD. AUTHORISED REPR ESENTATIVE, ASSESSEE BECAME LIABLE TO SEBI CHARGES ONLY WHEN THE HONBL E JURISDICTIONAL HIGH COURT HAD VACATED A STAY OBTAINED BY THE ASSE SSEE ON LEVY OF SUCH TURNOVER CHARGES BY SEBI. CONTENTION OF THE L D. AUTHORISED REPRESENTATIVE WAS THAT SUCH TURNOVER CRYSTALLIZED ONLY WHEN THERE WAS A VACATION OF STAY BY JURISDICTIONAL HIGH COUR T. ACCORDING TO HIM, IF GIVEN AN OPPORTUNITY ASSESSEE COULD SUBMIT ALL N ECESSARY EVIDENCE IN SUPPORT OF ITS CONTENTIONS. 3. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE STRONG LY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE AUTHORITIES BELOW. CLAIM OF THE ASSES SEE IS THAT TURNOVER ITA NO.2865/MDS/2016 :- 3 -: CHARGES DUE TO THE SEBI, CRYSTALLIZED ONLY DURING T HE RELEVANT PREVIOUS YEAR THOUGH IT PERTAINED TO THE PERIOD 1996 TO 200 2, SINCE THERE WAS A STAY OF JURISDICTIONAL HIGH COURT ON SUCH TURNOVER CHARGES WHICH WAS VACATED ONLY DURING THE RELEVANT PREVIOUS YEAR. LD . AUTHORISED REPRESENTATIVE HAS ALSO RAISED ADDITIONAL PLEADING QUESTIONING VALIDITY OF RE-ASSESSMENT DONE BY THE LD. ASSESSING OFFICER THOUGH NO SUCH GROUND APPEAR IN THE GROUNDS OF APPEAL FILED. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD NOT CONSIDERED THE CONTENT ION OF THE ASSESSEE FOR A REASON THAT DETAILS OF THE APPEAL BE FORE HIGH COURT, STAY ORDER PASSED BY THE HIGH COURT AND VACATION OF THE STAY WERE NOT MADE AVAILABLE TO HIM. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT ISSUE REQUIRES A FRESH LOOK BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ASSESSEE IS DIRECTED TO FILE BEFORE LD. COMMISSIONER OF INCOME TAX (APPEALS) COP IES OF THE JUDGMENT OF HONBLE HIGH COURT, COPY OF THE STAY OR DER ISSUED BY THE HONBLE HIGH COURT AND COPY OF THE VACATION OF THE STAY BEFORE LD. COMMISSIONER OF INCOME TAX (APPEALS) WHO HAS TO CO NSIDER IT AND ADJUDICATE THE ISSUE WHETHER TURNOVER CHARGES WAS A LLOWABLE OR NOT. LD. COMMISSIONER OF INCOME TAX (APPEALS) MAY ALSO C ONSIDER THE QUESTION REGARDING VALIDITY OF RE-ASSESSMENT, IF ASSESSEE RAISES SUCH A GROUND BEFORE HIM. THIS BEING A PURE QUESTION O F LAW, I MAY HASTEN ITA NO.2865/MDS/2016 :- 4 -: TO ADD THAT ASSESSEE CAN RAISE SUCH A GROUND BEFOR E LD. COMMISSIONER OF INCOME TAX (APPEALS). 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 26TH DAY OF AP RIL, 2017, AT CHENNAI SD/- ( . ) (ABRAHAM P. GEORGE) / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 26TH APRIL, 2017 KV &' ()*) / COPY TO: 1 . / APPELLANT 3. +,- / CIT(A) 5. )./ 0 / DR 2. / RESPONDENT 4. + / CIT 6. /12 / GF