PANTHER INVESTRADE LTD, MUMBAI V. ASST CIT CEN CIR 40, MUMBAI

ITA 293/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2769 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 10-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Keywords: Reopening of assessment
• Section: 143(3); 147; 148; 144

Judgement Text

PANTHER INVESTRADE LTD ITA 2 9 3 /M/201 4 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C , MUMBAI . . , , BEFORE SHRI G S PANNU , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMBERITA ITA NO. : 2 9 3 /MUM/20 1 4 (ASSESSMENT YEAR: 200 4 - 0 5 ) PANTHER INVESTRADE LTD, RADHA BHAVAN, 1 ST FLOOR, 121, NAGINDAS MASTER ROAD, MUMBAI - 400 023. .: PAN : AAACP 3259 R VS ASST. C OMMISSIONER OF I NCOME T AX C.C. 40, AAYAKAR BHAVAN, M K ROAD, MUMBAI 400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJIV KHANDELWAL RESPONDENT BY : DR. P DANIEL /DATE OF HEARING : 17 - 0 6 - 2015 / DATE OF PRONOUNCEMENT : 29 - 07 - 2015 ORDER [ PER AMIT SHUKLA , J.M. : TH E AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSE E AGAINST IMPUGNED ORDER DATED 19 . 11 .2013 PASSED BY CIT(A) - 36 , MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 144 R.W.S. 147 FOR THE ASSESSMENT YEAR 2004 - 05. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS CHALLENGED THE EX - PARTE ORDER PASSED BY CIT(A) ; THE VALIDITY OF REOPENING UNDER SECTION 148 AND ALSO THE ISSUES ON MERITS. 2. FROM THE PERUSAL OF THE ASSESSMENT ORDER, IT IS SEEN THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) ON 06.07.2006 AT AN INCOME OF RS. 11, 38 ,160/ - AS AGAINST THE RETURNED LOSS OF RS. 14,50,67,220/ - . THEREAFTER, THE ASSESSEES CASE WAS REOPENED BY ISSUANCE OF NOTICE U/S 148 DATED 28. 02 .2011 AFTER RECORDING THE REASONS WHICH HAS BEEN INCORPORATED ON THE PAGE 2 OF THE ASSESSMENT ORDER. IT HAS BEEN FURTHER OBSERVED BY THE AO IN THE ASSESSMENT ORDER THAT DESPITE SEVERAL NOTICES, THE ASSESSEE DID NOT ATTEND THE ASSESSMENT PROCEEDINGS AND ACCORDINGLY , THE PANTHER INVESTRADE LTD ITA 2 9 3 /M/201 4 2 ASSESSMENT WAS COMPLETED U/S 144 R.W.S. 148 AT AN INCOME OF RS. 18,75,68,910/ - , EX - PARTE . 3. IN THE FIRST APPEAL ALSO, DESPITE SEVERAL NOTICES, THE ASSESSEE COULD NOT ATTEND THE PROCEEDINGS AND ACCORDINGLY , THE LD. CIT(A) TOO PASSED AN EX - PARTE ORD ER CONFIRMING THE ENTIRE ACTION OF THE ASSESSING OFFICER. 4. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE, SHRI RAJIV KHANDELWAL SUBMITTED T HAT NOT ONLY THE REOPENING OF ASSESSMENT U/S 147 IS BAD IN LAW BUT ALSO THE ADDITIONS MADE BY THE ASSESSING OFFICER CANNOT BE SUSTAIN ED ON MERITS. HE SUBM IT TED THAT, IN FACT, THE REASONS ON WHICH THE ASSESSING OFFICER HAS REOPENED THE CASE ALREADY STOOD RECONCILED AT THE ASSESSMENT STAGE AND THERE IS NO COGENT MATERIAL TO REOPEN THE CASE U/S 147. HE FURTHER DREW OUR ATTENTION TO VARIO US DOCUMENTS PLACED IN THE PAPERBOOK TO DEMONSTRATE THAT AL L THE AMOUNTS STOOD RECONCILED AND THERE IS NO REASON EITHER FOR REOPENING OR FOR MAKING THE ADDITION. ON THE OTHER HAND, LD. DR SUBMITTED THAT NEITHER BEFORE THE ASS ESSING OFFICER NOR BEFORE THE C I T (A) THE ASSESSEE COULD MAKE OUT ITS CASE AND THEREFORE, THE ASSESSING OFFICER AND CIT(A) HAVE RIGHTLY MADE/CONFIRMED THE ADDITIONS. 5. AFTER CONSIDERING THE RIVAL SUBMISSION AND ON PERUSAL OF THE MATERIAL ON RECORD , W E FIND THAT THE ASSESSEE NEITHER BE FORE THE ASSESSING OFFICER NOR BEFORE THE CIT(A) HA S MADE OUT ITS CASE AND THEREFORE, THE ORDER S HAVE BEEN PASSED EX PARTE , WHICH HAS NOW BEEN CHALLENGED BEFORE US ON VARIOUS COUNTS . T HE ASSESSEE HAS FILED VOLUMINOUS PAPER BOOK AND ARGUED ON MERITS THAT AD DITIONS MADE CANNOT BE SUSTAINED AS THE GROUNDS ON WHICH THE ASSESSMENT H AS BEEN REOPENED ALREADY STOOD RECONCILED AT THE ORIGINAL ASSESSMENT STAGE. HOWEVER, WE ARE UNABLE APPRECIATE THE CONTENTION OF THE LD. COUNSEL AT THIS STAGE AS ALL THESE FACTS NEEDS EXAMINATION AND SHOULD HAVE BEEN BROUGHT BEFORE THE ASSESSING OFFICER OR AT LEAST AT THE STAGE OF THE FIRST APPELLATE PROCEEDINGS , WHICH HAS NOT BEEN DONE SO. THEREFORE, I N THE INTEREST OF JUSTICE, PANTHER INVESTRADE LTD ITA 2 9 3 /M/201 4 3 WE ARE OF THE OPINION THAT THE ENTIRE MATTER SHOULD BE RES TORED BACK TO THE FILE OF THE ASSESSING OFFICER NOT ONLY TO DECIDE THE ISSUE OF VALIDITY OF REOPENING U/S 147 BUT ALSO ON MERITS AFRESH AND ASSESSEE WOULD BE AT LIBERTY TO RAISE ALL SUCH CONTENTIONS BEFORE THE ASSESSING OFFICER IN SUPPORT OF ITS CONTENTION S . ACCORDINGLY, WE SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE AND ADJUDICATE THE LEGAL ISSUE AS WELL AS ON THE MERITS AFRESH AND IN ACCORDANCE WITH THE PROVISIONS OF THE LAW , AFTER GIVING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. NEEDLESS TO SAY THAT T HE ASSESSEE SHALL COOPERATE WITH THE ASSESSING OFFICER IN REPRESENTING ITS CASE THIS TIME . 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JU LY , 2015. SD/ - SD/ - ( . . ) ( ) ( G S PANNU ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 29 TH JU LY , 2015 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 36 , MUMBAI 4 ) THE CIT CENTRAL - IV , MUMBAI . 5 ) , , / THE D.R. C BENCH, MUMBAI. 6 ) COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTR AR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS