ALTEC FABRICATORS, TRICHY V. ITO, WARD - 3 (3), TRICHY

ITA 3403/CHNY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6009 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 20-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J PAVITHNAN KUMARJCIT
• Assessee Lawyers: G SRIKAUTA
• Keywords: Business income; Capital Gains
• Section: 143(3); 150(1); 13; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , , !' BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT & SHRI S.JAYARAMAN, ACCOUNTANT MEMBER ./ I.T.A.NO.3403/CHNY/2019 / ASSESSMENT YEAR : 2010-11 M/S.ALTEC FABRICATORS , D-9,D-10,DEVELOPED PLOTS, THUVAKKUDI,TRICHY 620 015. VS. INCOME TAX OFFICER, WARD 3(3), TRICHY. [PAN AABFA 0407 E ] ( #$ / APPELLANT) ( %&#$ /RESPONDENT) / APPELLANT BY : MR.G.SRIKAUTA, C.A /RESPONDENT BY : MR.J.PAVITHNAN KUMAR,JCIT ,D.R ! / DATE OF HEARING : 12 .02.2020 '# ! / DATE OF PRONOUNCEMENT : 13 .02.2020 !' / O R D E R PER S.JAYARAMAN, ACCOUNTANT MEMBER THE ASSESSEE FILED THIS APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1, TRICHY IN I TA ITA NO.3403/CHNY/2019 :- 2 -: NO.167,335,169,307&159/2016-17/CIT(A)-1/TRY, DATED 10.10.2019 FOR THE ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE FILED THE APPEAL WITH A DELAY OF 5 DAYS AND EXPLAINED THE CAUSE. WE HEARD THE RIVAL SUBMISSIONS AND CONDONE THE DELAY. 3. THE ASSESSEE, M/S.ALTEC FABRICATORS, IS A FIRM ENGAGED IN THE BUSINESS OF FABRICATION OF WORKS AND FILED ITS RETU RN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 15.10.2010 DECLARIN G A TOTAL LOSS OF .53,56,131/- AND THE ASSESSMENT WAS MADE UNDER SECT ION 143(3) OF THE ACT DETERMINING THE LOSS AT .25,33,175/- ON 30.11.2012. ITS ASSESSMENT FOR THE ASSESSMENT YEAR 2010-11 WAS RE-ASSESSED UNDER SECTION 143(3) R.W.S.147 OF THE A CT ALONG WITH FOUR OTHERS NAMELY, SHRI K.G.RAMESH, SHRI NARAHARI PRASAD, M/S.JAY ENGINEERING INDUSTRIES AND MR.KANDASAMY PREMANATHAN AS COMMON ISSUES ARE INVOLVED AMONG THEM ON 28.12.2016 BY DET ERMINING THE TOTAL INCOME OF .36,07,300/-. AGGRIEVED AGAINST THAT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). THE LEARNED CIT(A) DISMISSED THE APPEAL FOR THE ASSESSMENT YEAR 2010-1 1 WITH AN ENHANCEMENT. WHILE DOING SO, HE DIRECTED THE ASSESS ING OFFICER TO REOPEN THE ASSESSMENT FOR ASSESSMENT YEAR 2009-10 U NDER SECTION 150(1) OF THE ACT TO ASSESS THE AMOUNT RECEIVED AS BUSINESS INCOME ITA NO.3403/CHNY/2019 :- 3 -: AND NOT AS CAPITAL GAINS AS CLAIMED BY THE ASSESSEE . AGGRIEVED AGAINST THAT ORDER, THE ASSESSEE IS IN APPEAL BEFOR E US. 4. IT WAS SUBMITTED BY THE LD. A.R. THAT THE ASSES SMENT ORDER FOR THE IMPUGNED ASSESSMENT YEAR 2010-11, WHICH WAS A SUBJECT MATTER OF APPEAL BEFORE THE LEARNED CIT(A), WAS PAS SED ON 28.12.2016. WHILE PASSING THE FIRST APPELLATE ORDE R, THE LEARNED CIT(A) IN TERMS OF SECTION 150(1) OF THE ACT DIRECT ED THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT FOR ASSESSMENT YEA R 2009-10, WHICH IS AGAINST THE LAW FOR A REASON THAT SECTION 150(2) OF THE ACT EXCLUDES THE APPLICATION OF SUB-SECTION (1) TO SITU ATIONS WHERE A RE- ASSESSMENT COULD NOT HAVE BEEN ORDINARILY MADE ON T HE DATE OF THE ORIGINAL ORDER, BY LIMITING THE TIME FOR RE-ASSESSM ENT UNDER SECTION 149 OF THE ACT. SECTION 149 OF THE ACT SPECIFIED TH E TIME LIMIT FOR ISSUE OF NOTICE, BY WHICH THE NOTICE FOR RE-ASSESSM ENT COULD BE ISSUED NOT LATER THAN SIX (06) YEARS FROM THE END O F THE ASSESSMENT YEAR I.E.31.03.2016. THE IMPUGNED ORDER WAS PASSED ON 28.12.2016, NINE (09) MONTHS, AFTER THE LIMITATION DATE. THEREFORE, THE LD. A.R. PLEADED THAT THE ORDER OF THE LEARNED CIT(A) DIRECTING THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT FOR ASSESSMENT YEAR 2009-10 IS UNSUSTAINABLE IN LAW AND HENCE, HE PLEAD ED TO QUASH THE ORDER OF LEARNED CIT(A). IN THIS REGARD, THE LD. A. R. INVITED OUR ATTENTION TO THE RELEVANT JUDGMENT PORTION OF THE H ONBLE PUNBAJ- ITA NO.3403/CHNY/2019 :- 4 -: HARYANA HIGH COURT IN THE CASE OF PARVEEN KUMARI VS . C.I.T REPORTED IN (1999) 237 ITR 339 (P&H) DATED 01.12.19 98 WHEREIN IT IS HELD THAT IF THE ACTION FOR ASSESSMENT OR RE-A SSESSMENT CANNOT BE INITIATED FOR AN ASSESSMENT YEAR ON THE DATE OF THE ORDER, WHICH WAS A SUBJECT-MATTER OF APPEAL, REFERENCE OR REVISI ON, THAT WOULD PREVENT THE A.O. FROM PROCEEDING UNDER SECTION 148 OF THE ACT. --- AND IF THE ISSUING OF A NOTICE FOR ASSESSMENT OR RE-ASSESSMENT FOR A PARTICULAR ASSESSMENT YEAR HAS BECOME TIME-BARRED AT THE TIME OF THE ORDER, WHICH WAS THE SUBJECT-MATTER OF THE APPE AL, THE PROVISIONS OF SECTION 150(1) CANNOT BE INVOKED TO T HE AID OF THE REVENUE FOR MAKING AN ASSESSMENT OR RE-ASSESSMENT AND RELIED ON IT. 5. PER CONTRA, LD. D.R. SUPPORTED THE ORDERS OF TH E LOWER AUTHORITIES. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE TH ROUGH THE MATERIALS AVAILABLE ON RECORD. IN THIS CASE, THE R E-ASSESSMENT ORDER FOR THIS ASSESSMENT YEAR, I.E 2010-11, WAS PASSED O N 29.12.2016. BY THE TIME, MORE THAN 6 YEARS HAD LAPSED FROM THE END OF THE ASSESSMENT YEAR 2009-10 AND HENCE, IN ACCORDANCE WI TH THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT REFERRED TO SUPRA AND RELIED UPON BY THE LD. A.R., NO RE-ASSESSMENT COULD BE DIRECTED UNDER SECTION 150(1) OF THE ACT. THEREFORE, THE DIRECTION S ISSUED BY THE ITA NO.3403/CHNY/2019 :- 5 -: LEARNED CIT(A) IS NOT IN ACCORDANCE WITH LAW. HENCE , WE QUASH THE DIRECTION ISSUED BY THE LEARNED CIT(A) FOR REOPENIN G THE ASSESSMENT FOR THE ASSESSMENT YEAR 2009-10, WHICH WAS BARRED B Y THE LIMITATION UNDER SECTIONS.150(2) OF THE ACT AND ALLOW THE APPE AL OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH FEBRUARY, 2020, AT CHENNAI. SD/- SD/- ( ) (MAHAVIR SINGH) $ %& /VICE PRESIDENT ( ) ) (S. JAYARAMAN) !' /ACCOUNTANT MEMBER '( / CHENNAI )* / DATED: 13 TH FEBRUARY,2020. K S SUNDARAM *+,,-. , /. / COPY TO: , 1 . / APPELLANT 4. , 0 / CIT 2. / RESPONDENT 5. .12 ,3 / DR 3. , 0,4 5 / CIT(A) 6. 26,7 / GF