M/s. Leo Transport, CHENNAI V. ACIT, CHENNAI

ITA 3152/CHNY/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8941 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 15-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARI GOVIND
• Assessee Lawyers: T BANUSEKAR
• Keywords: Reopening of assessment; Difference of opinion; Change of opinion
• Section: 143(3); 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !', $ '% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.3152/CHNY/2016 ' (' / ASSESSMENT YEAR : 2007-08 M/S LEO TRANSPORT, NO.16, ANDIAPPA GRAMANI STREET, ROYAPURAM, CHENNAI - 600 001. PAN : AAAFL 0201 C V. THE ASSISTANT COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 5, CHENNAI. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SH. T. BANUSEKAR, CA ,-*+ . / / RESPONDENT BY : SHRI HARI GOVIND, JCIT 0 . 1$ / DATE OF HEARING : 04.12.2018 23( . 1$ / DATE OF PRONOUNCEMENT : 19.12.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -5, CHENNA I, DATED 28.07.2016 AND PERTAINS TO ASSESSMENT YEAR 2007-08. 2. THERE WAS A DELAY OF 16 DAYS IN FILING THIS APPE AL BY THE ASSESSEE. THE ASSESSEE HAS FILED A PETITION FOR CO NDONATION OF 2 I.T.A. NO.3152/CHNY/16 DELAY. WE HAVE HEARD THE LD. REPRESENTATIVE FOR TH E ASSESSEE AND THE LD. D.R. WE FIND THAT THERE WAS SUFFICIENT CAU SE FOR NOT FILING THE APPEAL BEFORE THE STIPULATED TIME. THEREFORE, WE C ONDONE THE DELAY AND ADMIT THE APPEAL. 3. SH. T. BANUSEKAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER REOPENED THE A SSESSMENT BY ISSUING NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') ON 25.03.2014, WHICH IS BEYOND THE PERIOD OF FOUR YEARS. ACCORDING TO THE LD. REPRESENTATIVE, IT IS NOT THE CASE OF THE REVENUE THAT THERE WAS ANY NEGLIGENCE ON THE PART O F THE ASSESSEE IN FURNISHING MATERIAL FACTS. REFERRING TO SECTION 147 OF THE ACT, THE LD. REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFF ICER CANNOT REOPEN THE ASSESSMENT AFTER EXPIRY OF FOUR YEARS. THE LD. REPRESENTATIVE SUBMITTED THAT THE ORIGINAL ASSESSME NT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT BY AN ORD ER DATED 18.12.2009. SUBSEQUENTLY, THE ASSESSING OFFICER IS SUED NOTICE ON 25.03.2014 WITHOUT ANY MATERIAL. THE ISSUE WAS ELA BORATELY CONSIDERED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT ORDER DATED 18.12.2009. THEREFORE, ACCORDING TO TH E LD. REPRESENTATIVE, THE ASSESSING OFFICER REOPENED THE ASSESSMENT DUE 3 I.T.A. NO.3152/CHNY/16 TO CHANGE OF OPINION. HENCE, THE CONSEQUENTIAL ORD ER PASSED BY THE ASSESSING OFFICER CANNOT STAND IN THE EYE OF LA W. 4. WE HEARD SHRI HARI GOVIND, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. ADMITTEDLY, THE ORIGINAL ASSE SSMENT WAS COMPLETED ON 18.12.2009 BY AN ORDER UNDER SECTION 1 43(3) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER ISSUED NO TICE UNDER SECTION 148 OF THE ACT ON 25.03.2014. THEREFORE, T HE REOPENING OF ASSESSMENT IS BEYOND FOUR YEARS. IT IS NOT THE CAS E OF THE REVENUE THAT ANY NEW MATERIAL WAS BROUGHT ON RECORD. THE I SSUE OF TDS WAS ELABORATELY DISCUSSED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT ORDER DATED 18.12.2009. THEREFORE, IT I S A CLEAR CASE OF CHANGE OF OPINION. MOREOVER, THE NOTICE UNDER SECT ION 148 OF THE ACT WAS ISSUED BEYOND THE PERIOD OF FOUR YEARS. TH EREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IN THE A BSENCE OF ANY NEGLIGENCE ON THE PART OF THE ASSESSEE IN FURNISHIN G REQUIRED MATERIAL, THE COMPLETED ASSESSMENT CANNOT BE REOPEN ED. THEREFORE, WE ARE UNABLE TO UPHOLD THE ORDER OF THE CIT(APPEALS). ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW A RE SET ASIDE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 4 I.T.A. NO.3152/CHNY/16 ORDER PRONOUNCED IN THE COURT ON 19 TH DECEMBER, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 19 TH DECEMBER, 2018. KRI. . ,167 87(1 /COPY TO: 1. *+/ APPELLANT 2. ,-*+/ RESPONDENT 3. 0 91 () /CIT(A)-5, CHENNAI-34 4. PRINCIPAL CIT- 9, CHENNAI 5. 7: ,1 /DR 6. ;' < /GF.