Deputy Commissioner of Income tax, Pune V. M/s. Faurecia Interior India Pvt Ltd, Pune

ITA 306/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8671 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-07-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDHE
• Assessee Lawyers: MRS PADMAJA LIKHITE
• Keywords: Set aside
• Section: 143(3); 263

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.306/PUN/2017 / ASSESSMENT YEAR : 2008-09 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 9, PUNE. . / APPELLANT V/S M/S. FAURECIA INTERIOR INDIA PVT. LTD., PLOT NO.T-187, BG BLOCK, PIMPIRI INDUSTRIAL AREA, BHOSARI, PUNE 411 026. PAN : AACCT0275F. . / RESPONDENT ASSESSEE BY : MRS. PADMAJA LIKHITE. REVENUE BY : SHRI VISHWAS MUNDHE. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) 13, PUNE DATED 23 .11.2016 FOR A.Y. 2008-09. 2. THE SOLE GROUND RAISED BY THE REVENUE READS AS UNDER : WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE CIT(A) IS RIGHT IN ALLOWING THE DISALLOWANCE MADE U/S 10A(7) R.W.S. 80IA(10) OF THE ACT, OF RS.2,88,69,742/-. 3. BEFORE US, LD.A.R. SUBMITTED THAT WHILE FRAMING THE ASSESS MENT ORDER U/S 143(3) OF THE ACT, AO HAD DISALLOWED RS.2,88,69,742 /- U/S / DATE OF HEARING : 01.07.2019 / DATE OF PRONOUNCEMENT: 12.07.2019 2 10A R.W.S. 80IA(10) OF THE ACT ON ACCOUNT OF EXCESS PROFIT ADJUSTMENT. BEING AGGRIEVED WITH THE SAID ASSESSMENT ORDER, ASSESSEE COMPANY FILED AN APPEAL BEFORE THE LD.CIT(A). SUBSEQUENTLY, CIT-IV, PU NE INITIATED PROCEEDINGS U/S 263 OF THE ACT. ON EXAMINATION OF THE ASS ESSMENT RECORDS, LD.CIT CONSIDERED THAT ASSESSMENT ORDER PASS ED BY THE AO TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVE NUE AS THE AO DID NOT DISALLOW THE MARK TO MARKET LOSSES ON FORWARD CO NTRACTS OF RS.2,33,89,522/- BY IGNORING THE BOARDS CIRCULAR NO.3 OF 2 010. ACCORDINGLY, LD.CIT VIDE ORDER DATED 21.03.2014 PASSED O RDER U/S 263 OF THE ACT SET ASIDE THE ORDER U/S 143(3) OF THE ACT PAS SED BY THE AO AND DIRECTED THE AO TO REFRAME THE ASSESSMENT AS PER THE DIRECTIONS CONTAINED IN HIS ORDER. THE LD. A.R. FURTHER SUBMITTED THAT AGAINST THE ORDER OF LD. CIT PASSED U/S 263, ASSESSEE PREFERRED APPE AL BEFORE THE TRIBUNAL. SHE SUBMITTED THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DATED 05.01.2017 IN ITA NO.1058/PUN/2014 HAS HELD THAT REVISIONARY PROCEEDINGS EXERCISED BY LD.CIT U/S 263 OF TH E ACT TO BE NOT CORRECT AND ACCORDINGLY SET ASIDE THE ORDER OF LD.C IT. SHE PLACED ON RECORD THE COPY OF THE AFORESAID ORDER OF THE TRIBUNA L AND POINTED TO THE RELEVANT FINDINGS OF THE TRIBUNAL. SHE THEREFORE SUBMITT ED THAT WHEN THE ORDER OF LD. CIT PASSED U/S 263 ITSELF HAS BEEN SET ASIDE BY THE TRIBUNAL, THE CONSEQUENTIAL ORDER PASSED U/S 143(3) R .W.S. 263 OF THE ACT DOES NOT SURVIVE. SHE SUBMITTED THAT LD.CIT(A) O N MERITS HAS DELETED THE ADDITION AND ON THIS GROUND ALSO, THE APPEAL OF REVENUE NEEDS TO BE DISMISSED. SHE THUS SUPPORTED THE ORDER OF LD. CIT(A). LD. D.R. ON THE OTHER HAND DID NOT CONTROVERT THE SUBMISSION S OF LD.A.R. BUT SUPPORTED THE ORDER OF LOWER AUTHORITIES. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ORIGINAL ASSESSMENT ORDER U/S 3 143(3) OF THE ACT WAS PASSED BY AO ON 30.12.2011. THEREA FTER, LD.CIT VIDE ORDER DATED 21.03.2014 PASSED U/S 263 OF THE ACT WHEREBY HE DIRECTED THE SETTING ASIDE OF THE ASSESSMENT ORDER PASS ED BY THE AO AND DIRECTED THE AO TO REFRAME THE ASSESSMENT AS PER THE DIRECTIONS CONTAINED THEREIN. CONSEQUENT TO ORDER PASSED U/S 26 3, AO FRAMED ASSESSMENT U/S 143(3) R.W.S. 263 VIDE ORDER DATED 16.03.2 015 WHICH WAS CHALLENGED BY ASSESSEE BEFORE LD.CIT(A). LD.CIT(A) BY TH E IMPUGNED ORDER ON MERITS GRANTED RELIEF TO ASSESSEE. AGAINST THE ORDER PASSED BY LD.CIT U/S 263, ASSESSEE CARRIED THE MATTER BEFORE THE TRIBUNAL. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.1058/PUN/2014 ORDER DT.05.01.2017 HAD HELD THAT THE REVISIONARY PROCEEDINGS EXERCISED BY LD.CIT TO BE NOT CORRECT AND THEREFORE HAD SET ASIDE THE ORDER PASSED BY LD.CIT U/S 263. IN SUCH A SITUATION, WHEN THE ORIGINAL ORDER OF LD.CIT PASSED U/S 263 OF THE ACT HA S BEEN SET ASIDE, THE CONSEQUENTIAL ORDER PASSED BY THE AO U/S 143 (3) R.W.S. 263 OF THE ACT DOES NOT SURVIVE. WE FURTHER FIND THAT LD.CIT( A) EVEN ON MERITS HAS DECIDED THE ISSUE IN ASSESSEES FAVOUR. IN SU CH A SITUATION, WE DO NOT FIND MERIT IN THE APPEAL OF REVENUE. WE THUS D ISMISS THE GROUND OF REVENUE. THUS, THE GROUND OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON 12 TH DAY OF JULY, 2019. SD/- SD/- ( VIKAS AWASTHY ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 12 TH JULY, 2019. YAMINI 4 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-13, PUNE. PR. CIT- 5, PUNE. '#$ %%&',) &', / DR, ITAT, A PUNE; $,-./ GUARD FILE. / BY ORDER // TRUE COPY // /01%2&3 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.