SPRINT ADVISORY SERVICES P.LTD, MUMBAI V. PR CIT 11, MUMBAI

ITA 3790/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0574 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 24-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 3790/MUM/2017 ASSESSMENT YEAR: 2009 - 10 M/S SPRINT ADVISORY SERVICES P. LTD., KNOWLEDGE HOUSE, SHYAM NAGAR, OFF JOGESHWARI VIKHROLI, LINK ROAD, JOGESHWARI (E), MUMBAI 400056 PAN: AAJCS0579E VS. THE PR. C.I.T. 11, ROOM NO. 417, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. DINKLE HARIA (AR) REVENUE BY : SHRI V. JUSTIN ( D R ) DATE OF HEARING: 07/02 /201 8 DATE OF PRONOUNCEMENT: 07 / 02 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 31.03.2017 PASSE D BY THE PRINCIPAL COMMISSIONER OF INCOME TAX - 11 , MUMBAI , FOR THE A S S ESSMENT YEAR 2009 - 10 , WHEREBY THE PR. CIT HAS DIRECTED THE AO TO MAKE DO NOVO ASSESSMENT EXERCISING THE JURISDICTION U/S 263 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT). 2. T HE AS SESSEE HAS CHALLENGED THE ACTION OF THE LD. PR. COMMISSIONER ON THE FOLLOWING EFFECTIVE GROUND S : - 1. BREACH OF THE PRINCIPLES OF NATURAL JUSTICE 1.1 THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX - 11, MUMBAI [LD. CIT], ERRED IN FRAMING THE REVISION ORDER U/S 263 OF THE INCOME TAX ACT, 1961 [THE ACT) BY NOT GIVING PROPER, SUFFICIENT AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 2 ITA NO. 3790 / MUM/2017 ASSESSMENT YEAR: 2009 - 10 1.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE ORDER IS REQUIRED TO BE HELD AS BAD AND ILLEGAL AS THE SAME IS PASSED IN BREACH OF THE PRINCIPLES OF NATURAL JUSTICE, AS WELL AS WITH NON - APPLICATION OF MIND TO THE FACTS AND THE CONTENTIONS BROUGHT ON RECORD BY THE APPELLANT. WITHOUT PREJUDICE TO THE ABOVE 2. REVISION ILLEGAL 2.1 THE LD. CIT ERRED IN PASSING THE ORDER U/S 263 OF THE ACT, REVISING THE ASSESSMENT ORDER PASSED BY THE A.O. U/S 143 (3) R.W.S. 147 OF THE ACT. 2.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE ORDER IS BAD, ILLEGAL AND VOID AS N ECESSARY PRE - CONDITIONS FOR INITIATING THE REVISION PROCEEDING AS WELL AS THE COMPLETION THEREOF WERE NOT FULFILLED. 2.3 WITHOUT PREJUDICE TO THE GENERALITY OF THE ABOVE, THE CIT FAILED TO APPRECIATE THAT: (I) THE ASSESSMENT ORDER FRAMED WAS NOT ERRONEOUS WIT HIN THE MEANING OF SECTION 263 OF THE ACT, AND (II) IN ANY CASE, THE ASSESSMENT ORDER WAS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE WITHIN THE MEANING OF SECTION 263 OF THE ACT. 2.4 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, NO REVISION U/S 263 OF THE ACT WAS CALLED FOR. WITHOUT FURTHER PREJUDICE TO THE ABOVE 3. ON MERITS 3.1 WITHOUT PREJUDICE TO THE ABOVE, IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, EVEN 3 ITA NO. 3790 / MUM/2017 ASSESSMENT YEAR: 2009 - 10 OTHERWISE AND ON MERITS ALSO, N O SUCH REVISION/DIRECTION WAS CALLED FOR . 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IN THIS CASE , VIDE ORDER DATED 30.03.2017 PASSED U/ S 263 OF THE ACT THE LD. PR. CIT DIRECTED THE AO TO PASS DO NOVO ASSESSMENT OR DER AFTER MAKING FURTHER ENQUIRIES AND VERIFYING THE DETAILS OF THE SHARE PREMIUM IN QUESTION ORDER. NOW THE AO HAS PASSED THE ORDER UNDER SECTI ON 143(3) READ WITH SECTION 263 OF THE ACT AFTER CONDUCTING FURTHER ENQUIRIES AND ACCEPTED THE CONTENTION OF THE ASSESSEE. SINCE, THE AO HAS ACCEPTED THE CONTENTION OF THE ASSESSEE, THE PRESENT APPEAL HAS BECOME ACADEMIC . IN VIEW OF THE AFORESAID FACTS , THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE MAY BE ALLOWED TO WITHDRAW THE PRESENT APPEAL. THE LD. COUNSEL HAS ALS O SUBMITTED A WRITTEN REQUEST IN THIS REGARD. 4. THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT CONTROVERT THE FACTS STATED BY THE LD. COUNSEL FOR THE ASSESSEE. HENCE, IN VIEW OF THE FACT THAT THE ASSESSEES CONTENTION S HA VE BEEN ACCEPTED BY THE AO AND THE REQUEST FOR WITHDRAWAL OF THE APPEAL, MADE BY THE COUNSEL, WE DISMISS THE PRESENT APPEAL AS WITHDRAWN. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2009 - 20 10 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH FEBRUARY , 2 018 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 07 / 02 / 201 8 ALINDRA, PS 4 ITA NO. 3790 / MUM/2017 ASSESSMENT YEAR: 2009 - 10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, IT AT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRA R) , / ITAT, MUMBAI