TATA MARCOPOLO MOTORS LTD, MUMBAI V. DCIT 1(3), MUMBAI

ITA 3987/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7107 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 10-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M V RAJGURU
• Assessee Lawyers: PRADEEP MITRA
• Keywords: Depreciation; Opportunity of being heard; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 244A; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA.NO. 3987 /MUM/201 6 (A.Y : 2008 - 09 ) M/S. TATA MARCOPOLO MOTORS LIMITED 3 RD FLOOR, NANAVATI MAHALAYA, 18, HOMI MODI STREET, HUTATMA CHOWK, MUMBAI 400 001 PAN NO : AACCT 5547 J V. DY. COMMISSIONER OF INCOME TAX 1( 3), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRADEEP MITRA REVENUE BY : SHRI M.V. RAJGURU DATE OF HEARING : 0 8 .03 .2018 DATE OF PRONOUNCEMENT : 31 . 05 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDER OF THE LD. COMMIS SIONER OF INCOME - TAX (APPEALS) 3, MUMBAI DATED 31.03.2016 FOR THE ASSESSMENT YEAR 2008 - 09. 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL: 1. REASSESSMENT PROCEEDINGS U/S.147: 1.1 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE LEARNED ASSESSIN G OFFICER OF INVOKING THE PROVISION OF SECTION 147 OF THE ACT. FURTHER, THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE 2 ITA.NO.3987/MUM/2016 (A.Y:2008 - 09) M/S. TATA MARCOPOLO MOTORS LIMITED FACT THAT THE PROCEEDINGS INITIATED BY THE LEARNED ASSESSING OFFICER (AO) UNDER SECTION 147 OF THE ACT AND CONS EQUENTLY ORDER PASSED BY HIM UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT IS INVALID AND BAD IN LAW. 1.2 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE VALIDITY OF THE REASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 147 O F THE ACT WITHOUT APPRECIATING THE FACT THAT THE SAME WAS MERELY BASED ON CHANGE OF OPINION ON SAME SET OF FACTS AND MATERIAL ALREADY ON RECORD AND CONSEQUENTLY THE ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT IS INVALID AND BAD IN LA W. 1.3 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE VALIDITY OF THE REASSESSMENT PROCEEDINGS FOR THE CAPTIONED YEAR WITHOUT APPRECIATING THE FACT THAT THE SAME WAS BASED ON SAME SET OF INFORMATION/ DOCUMENTS ALREADY AVAILABLE WITH THE LEARNED AO WHILE ASSESSING THE INCOME UNDER ORIGINAL ASSESSMENT PROCEEDINGS AND IN THE ABSENCE OF ANY FRESH/ NEW MATERIAL THE RE - ASSESSMENT PROCEEDINGS ARE INVALID AND BAD IN LAW. 1.4 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE VALIDITY OF THE REASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 147 OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE SAID PROCEEDING WAS BASED ON THE AUDIT QUERY RAISED BY THE AUDIT DEPARTMENT OF THE INCOME - TAX AND HENCE THE PROCEEDINGS UNDER SECTION 147 OF THE ACT IS INVALID AND BAD IN LAW. 1.5 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE VALIDITY OF THE RE - ASSESSMENT PROCEEDINGS BY HOLDING THAT THE APPELLANT HAS MISREPRESENTED THE FACTS BY CLAIMING MANY EXPENSES UNDER THE H EAD INTANGIBLE ASSETS WITHOUT APPRECIATING THE FACT THAT THE INFORMATION/ DOCUMENTS TOWARDS THE CLAIM OF DEPRECIATION @ 25% ON PRODUCT DEVELOPMENT COST WAS ALREADY AVAILABLE TO THE LEARNED AO DURING ORIGINAL ASSESSMENT PROCEEDINGS. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT THERE IS NO SUCH MISREPRESENTATION OF FACTS MADE BY THE APPELLANT; AS THIS HAS ALREADY BEEN CONFIRMED BY HIM WHILE ADJUDICATING THE CASE ON MERITS. 2. INTEREST UNDER SECTION 244A: 2.1 THE LEARNED CIT(A) HAS ERRED IN LAW AN D ON FACTS IN NOT DIRECTING THE LEARNED AO FOR GRANTING INTEREST ON EXCESS TAXES PAID UNDER SECTION 244A OF THE ACT. 2.2 THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT INTEREST U/S 244A OF THE ACT IS APPLICABLE ON REFUNDS OF ANY AMOUNT DUE TO THE A SSESSE UNDER THE ACT WHICH ALSO INCLUDES REFUNDS OF TAX PAID IN THE FORM OF TDS. 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT GROUND NO. 1 IS NOT PRESSED AND MAY BE DISPOSED OFF ACCORDINGLY. THUS, GROUND NO. 1 WHICH IS IN RESPEC T OF RE - ASSESSMENT PROCEEDINGS U/S.147 OF THE ACT IS DISMISSED AS NOT PRESSED. 4. COMING TO GROUND NO.2 , WHICH IS IN REGARD TO INTEREST U/S. 244A OF THE ACT , LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT, INTEREST 3 ITA.NO.3987/MUM/2016 (A.Y:2008 - 09) M/S. TATA MARCOPOLO MOTORS LIMITED U/S.244A ON EXCESS TAXES PAID BEING TDS WAS NOT ALLOWED AND THEREFORE, DIRECTION MAY BE GIVEN TO THE ASSESSING OFFICER FOR GRANTING INTEREST U/S.244A IN ACCORDANCE WITH LAW. 5. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS O F THE AUTHORITIES BELOW. ON HEARING BOTH THE PARTIES, WE ARE OF THE VIEW THAT THIS ISSUE HAS TO BE EXAMINED BY THE ASSESSING OFFICER IN VIEW OF THE SUBMISSIONS OF THE ASSESSEE THAT NO INTEREST IS GRANTED U/S. 244A ON THE REFUND OF TDS IN THE LIGHT OF VARI OUS CASE LAWS ON THE ISSUE . THEREFORE, ASSESSING OFFICER IS DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE AND PASS ORDERS IN ACCORDANCE WITH LAW, AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 7. IN THE RESULT, APPEAL OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 31 ST MAY , 2018 . SD/ - SD/ - ( RAJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 31 / 05 / 2017 GIRIDHAR , S R. PS 4 ITA.NO.3987/MUM/2016 (A.Y:2008 - 09) M/S. TATA MARCOPOLO MOTORS LIMITED COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASST. REGISTRAR ) ITAT, MUM