SUCCESS DEVELOPERS P. LTD, MUMBAI V. ITO 7(3)(1), MUMBAI

ITA 3016/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78793 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2014
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 30-04-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 18-04-2011
• Court: TRIBUNAL
• Department Lawyers: GIRIJA DAYAL
• Keywords: Revision of order; Assessment record
• Section: 143(3); 263

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIVEK VARMA, JM ./I.T.A. NO.3016/M/2011 ( / ASSESSMENT YEAR: 2006 - 2007 ) SUCCESS DEVELOPERS P LTD, GR FLOOR, 15 - A, MODHAVANIK VIDYANRTHI BHAVAN, L.T. COLONY, ROAD NO.3, DADAR (E), MUMBAI - 14. / VS. ITO - 7(3)(1), MUMBAI. ./ PAN : AAFCS 8030 C ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI K. GOPAL / RESPONDENT BY : SHRI GIRIJA DAYAL , CIT - DR / DA TE OF HEARING : 30.04 .2014 / DATE OF PRONOUNCEMENT : 30.04 .2014 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 18.4.2011 IS AGAINST THE REVIEW ORDER OF THE CIT - 7, MUMBAI U/S 263 OF THE ACT, DATED 9 TH FEBRUARY, 2011 FOR THE ASSESSMENT YEAR 2006 - 2007. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GR OUNDS WHICH READ AS UNDER: 1. THE LD CIT ERRED IN PASSING THE ORDER DATED 9.2.2011 UNDER SECTION 263 OF THE ACT WITHOUT SATISFYING THE PRE - CONDITIONS TO INVOKE THE JURISDICTION UNDER THE ABOVE SECTION. HENCE, THE ORDER DATED 9.2.2011 IS BAD IN LAW AND THE SAME MAY BE QUASHED. 2. THE LD CIT FAILED TO APPRECIATE THAT THE ASSESSMENT ORDER DATED 29.12.2008 WAS PASSED AFTER DUE APPLICATION OF MIND. THUS, THE SAME IS NEITHER ERRONEO US AS WELL AS PREJUDICIAL TO THE INTEREST OF REMAIN. HENCE, THE ORDER DATED 9.2.2011 IS BAD - IN - LAW AND MAY BE QUASHED. 3. THE CIT FAILED TO APPRECIATE THAT THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER DATED 29.12.2009 UNDER SECTION 143(3) AFTER D UE APPLICATION OF MIND AND AFTER CARRYING ON REQUIRED INVESTIGATIONS. HENCE, THE LD CIT IS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 263. 4. WITHOUT PREJUDICE TO THE ABOVE, LD CIT FAILED TO APPRECIATE THAT THE ISSUES RAISED DURING THE COURSE OF PROCEEDINGS UNDER SECTION 263 DO NOT SATISFY THE CONDITION THAT THE ASSESSMENT ORDER DATED 29.12.2008 IS ERRONEOUS AS WELL AS 2 PREJUDICIAL TO THE INTERESTS OF REVENUE. THEREFORE, THE ORDER PASSED UNDER SECTION 263 OF THE ACT DATED 9.2.2011 IS BAD IN LAW AN D HENCE, THE SAME MAY BE QUASHED AND SET ASIDE. 3 . BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION BUSINESS AND FILED THE RETURN OF INCOME DECLARING THE TOTAL LOSS OF RS. 1,63,935/ - . THE ASSESSM ENT WAS COMPLETED U/S 143(3) OF THE ACT ORIGINALLY, ACCEPTING THE SAID LOSS. SUBSEQUENTLY, CIT ASSUMED JURISDICTION U/S 263 OF THE ACT AND SET ASIDE THE ASSESSMENT AND DIRECTED THE AO TO VERIFY THE FACTS APART FROM OTHER DIRECTIONS GIVEN IN THE REVIEW ORD ER. IN THE BACKGROUND OF THESE FACTS, SHRI K. GOPAL, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE FRESH ASSESSMENT GIVING EFFECT TO THE ORDER OF THE CIT HAS NOT BEEN PASSED TILL DATE. EXPLAINING THE LIMITATION PROVIDED U/S STATUTE U/S 153(2A ) OF THE ACT , WHICH IS BROUGHT INTO STATUTE BY FINANCE ACT, 2001 W.E.F. 1.6.2001 WHICH IS RELEVANT FOR THE YEAR UNDER CONSIDERATION, LD COUNSEL ARGUED THAT THE FRESH ASSESSMENT IN PURSUANCE OF AN ORDER U/S 263 MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER U/S 263 IS PASSED BY THE COMMISSIONER . APPLYING THE SAME TO THE FACTS OF THE PRESET CASE, THE DUE DATE FOR PASSING AN ORDER OF THE FRESH ASSESSMENT IS 31 ST MARCH, 2012. BUT, NO SUCH ORDER HAS BEEN PASSED TILL DATE. IN SUCH CIRCUMSTANCES, THE REVIEW ORDER OF THE CIT IS INFRUCTUOUS AND HAS TO BE DISMISSED AS SUCH. 4. IN REPLY TO THE ABOVE LIMITED PRELIMINARY ISSUE, SHRI GIRIJA DAYAL, LD DR SUBMITTED, BASED ON THE ASSESSMENT RECORDS AVAILABLE WITH HIM FRESH ASSESSMENT ORDER HAS NOT BEEN PASSED TILL DATE AND HE ALSO MENTIONED THAT THE RELEVANT INFORMATION SHALL BE COMMUNICATED THE FIELD OFFICERS INFORMING THE FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 15 3(2A) OF THE ACT. 5. WE HAVE HEARD BOTH THE PARTIES ON THIS PRELIMINARY ISSUE. IT IS A FACT THAT THE FRESH ASSESSMENT ORDER HAS NOT BEEN PASSED TILL DATE. IT IS ALSO THE STATUTORY REQUIREMENT THAT THE DUE DATE FOR PASSING THE FRESH ASSESSMENT ORDER IS 31 ST MARCH, 2012 I.E., ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH REVIEW ORDER WAS PASSED. THE RELEVANT PROVISIONS OF SECTION 153(2A) READS AS UNDER: [(2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SECTIONS (1) [, (1A), (1B)]AND (2), IN RELATION T O THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1971, AND ANY 3 SUBSEQUENT ASSESSMENT YEAR, AN ORDER OF FRESH ASSESSMENT IN PURSUANCE OF AN ORDER UNDER SECTION 250 OR SECTION 254 OR SECTION 263 OR SECTION 264 , SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE CASE M AY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE CHIEF COMMISSIONER OR COMMISSIONER . 6. CONSIDERING THE ABOVE ADMITTED POSITION, WE ARE OF THE OPINION THAT THE GROUNDS RAISED IN THE APPEAL BECOME ACADEMIC AND THEREFORE, THEY ARE ALLOWED AS ACADEMIC. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED THE OPEN COURT ON 30 TH APRIL, 2014. S D / - S D / - (VIVEK VARMA) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 30.4.2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI