M/S. AGIO PHARMACEUTICALS LTD, MUMBAI V. THE SHRI SHASHIKANT SHARMA ITO 8(1)(1), MUMBAI

ITA 3557/MUM/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7542 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 03-02-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 08-05-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SUTARIA
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Reopening of assessment; Reassessment proceedings
• Section: 143(3); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH: MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI V DURGA RAO, JUDICIAL MEMBER ITA NO 3557/MUM/2007 (ASSESSMENT YEAR: 2000-01) M/S AGIO PHARMACEUTICALS LIMITED , A-38, NANDJYOT INDUSTRIAL ESTATE, ANDHERI-KURLA ROAD, SAFED POOL, ANDHERI (EAST) MUMBAI -400 072 PAN: AAECA 8926 A VS ITO -8(1)(1), MUMBAI APPELLANT RESPONDENT APPELLANT BY: SHRI M SUBRAMANIAN RESPONDENT BY: SHRI DEEPAK SUTARIA ORDER PER PRAMOD KUMAR 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AND IS D IRECTED AGAINST THE ORDER DATED 7.3.2007 PASSED BY LEARNED CIT (A) IN THE MATTER OF ASSESSMENT U/S 143(3) R W S 147 OF THE INCOME-TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2000-01. 2. ONE OF THE CONTENTIONS RAISED BY THE LEARNED COU NSEL IS THAT THE ASSESSEE WAS NOT SERVED THE REASONS FOR REOPENING OF ASSESSMENT DURING THE ASSESSMENT PROCEEDINGS OR FIRST APPELLATE PROCEEDINGS. 3. IT IS POINTED OUT THAT FOR THE FIRST TIME THAT T HE ASSESSEE WAS CONFRONTED WITH THE REASONS RECORDED FOR REOPENING OF ASSESSMENT WA S 10 TH DECEMBER 2008, WHEREAS THE IMPUGNED ORDER PASSED BY THE COMMISSIONER IS DA TED 7 TH MARCH 2007. LEARNED COUNSEL SUBMITS THAT IN ACCORDANCE WITH THE SCHEME OF THE LAW, THE ASSESSING OFFICER OUGHT TO HAVE FURNISHED REASONS OF REOPENING OF ASS ESSMENT AT THE TIME OF ISSUANCE OF NOTICE U/S 147, DEALT WITH THE OBJECTIONS OF THE ASSESSEE TO THE SAID REASONS, AND THEN PROCEEDED TO FRAME THE ASSESSMENT ORDER, IF AT ALL REQUIRED. IN SUPPORT OF THIS PROPOSITION LEARNED COUNSEL RELIES UPON THE JUDGMEN T OF HONBLE SUPREME COURT IN ITA 3557/M/2007 M/S AGIO PHARMACEUTICALS LIMITED 2 THE CASE OF G K N DRIVESHAFTS (INDIA) LTD VS ITO & OTHERS 259 ITR 19. IT IS THUS CONTENDED THAT THE MATTER BE REMITTED TO THE FILE O F THE ASSESSING OFFICER FOR FRAMING THE ASSESSMENT DE NOVO IN ACCORDANCE WITH THE SCHEME OF THE ACT AND AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE TO FILE HIS OBJECTIO NS, IF ANY, TO THE REASONS OF REOPENING AND ADJUDICATE UPON THE SAME BY WAY OF S PEAKING ORDER. 4. LEARNED DEPARTMENTAL REPRESENTATIVE WHO HAS NOT DISPUTED THE FACTUAL CONTENTIONS EMBEDDED IN THE ARGUMENTS OF THE LEARNE D COUNSEL BUT RELIES UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. THE PLEA OF THE ASSESSEE INDEED MERITS OUR APPRO VAL. AS THE HONBLE SUPREME COURT HAS LAID DOWN IN THE CASE OF G K N DRIVESHAFT S (INDIA) LTD (SUPRA). THE RIGHT COURSE OF PROCEEDINGS WITH THE REASSESSMENT PROCEED INGS IS LIKE THIS. THE ASSESSING OFFICER HAS TO GIVE REASONS OF THE REOPENING TO THE ASSESSEE AND IN CASE ASSESSEE OBJECTS TO SUCH A REOPENING, THE ASSESSING OFFICER HAS DEAL WITH THOSE OBJECTIONS ON MERITS, BY WAY OF A SPEAKING ORDER. IT IS ONLY AFTE R THIS EXERCISE THAT THE REASSESSMENT PROCEEDINGS CAN BE PROCEEDED WITH, IF NECESSARY. IN THE PRESENT CASE, HOWEVER, REASONS OF REOPENING ARE GIVEN EVEN AFTER FIRST APPELLATE PROCEEDINGS ARE OVER. IN THIS VIEW OF THE MATTER AND BEARING IN MI ND THE ENTIRETY OF THE MATTER WE DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE A SSESSING OFFICER FOR FRESH PROCEEDINGS IN ACCORDANCE WITH THE LAW AND IN THE L IGHT OF THE ABOVE OBSERVATIONS. AS WE REMIT THE MATTER FOR FRESH ADJUDICATION, WE S EE NO NEED TO DEAL WITH OTHER ISSUES RAISED IN THIS APPEAL, WHICH ARE RENDERED AC ADEMIC, IN THE PRESENT CONTEXT. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT TODAY ON THE 22 ND FEBRUARY 2010. SD/- (V DURGA RAO) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATE: 22ND FEBRUARY 2010 ITA 3557/M/2007 M/S AGIO PHARMACEUTICALS LIMITED 3 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-VIII, MUMBAI. 4) THE CIT MC- VIII, MUMBAI. 5) THE D.R. K BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR CHAVAN* I.T.A.T., MUMBAI ITA 3557/M/2007 M/S AGIO PHARMACEUTICALS LIMITED 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 4.2.2010 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 4.2.2010 8.2.2010 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER GIVEN OUR CAREFUL CONSIDERATION TO THE RIVAL CONTEN TIONS AND HAVING PERUSED THE MATERIAL ON RECORD, WE CONSIDER IT APPROPRIATE TO R EMIT THE MATTER FOR FRESH ITA 3557/M/2007 M/S AGIO PHARMACEUTICALS LIMITED 5 ADJUDICATION AFTER GIVING ONE MORE OPPORTUNITY OF H EARING TO THE ASSESSEE. WE, HOWEVER, ALSO DIRECT THE ASSESSEE TO FULLY CO-OPERA TE IN EXPEDITIOUS DISPOSAL, OF THE REMANDED MATTER AND TO PROPERLY COMPLY WITH THE REQ UISITIONS OF THE LEARNED DIT. NO ADJOURNMENTS WILL BE SOUGHT BY THE ASSESSEE. TH E ASSESSEE WILL APPROACH THE LEARNED DIT, WITHIN ONE MONTH OF RECEIPT OF THIS OR DER, ON HIS OWN AND SHALL FURNISH ALL SUCH EXPLANATIONS AND MATERIALS AS HE MAY SEEK TO RELY UPON. THE DIT WILL CONSIDER ALL SUCH MATERIAL AS ASSESSEE MAY SUBMIT B EFORE HIM AND DECIDE THE MATTER AFRESH IN ACCORDANCE WITH THE LAW AND BY WAY OF A S PEAKING ORDER. WE DIRECT SO. HAVING REGARD TO THE ORDER OF THE LEARNED CIT (A) T HAT THE IMPUGNED ORDER IS OBTAINED, WE DEEM IT FIT AND PROPER TO REMIT THE MA TTER TO THE FILE OF THE CIT (A) FOR ADJUDICATION DE NOVO AFTER GIVING YET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE, WE ALSO DIRECT THE ASSESSEE TO FULLY CO-OPERATE IN EXPEDITIOUS DISPOSAL OF THE APPEAL AND NOT TO SEEK ANY ADJOURNMENT OF THE APPEAL IN PR OCEEDINGS BEFORE THE CIT (A). WE FURTHER DIRECT THE ASSESSEE TO APPROACH THE CIT (A) ON HIS OWN WITHIN 30 DAYS OF RECEIVING THIS ORDER AND ASCERTAIN THE DATE ON WHIC H CIT (A) SCHEDULES REMANDED IN THIS CASE. THE ASSESSEE IS DIRECTED NOT TO ADOPT A NY DILATORY TACTICS OF ANY NATURE.