M/s Motia Constructions Ltd., Zirakpur V. ACIT, CC, Patiala

ITA 401/CHANDI/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6598 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay; Set aside
• Section: 263; 132; 143(3); 153A

Judgement Text

आयकर य कर , य य “B”, IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘B’, CHANDIGARH BEFORE: SHRI N.K. SAINI, VICE PRESIDENT, AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA Nos. 401 & 402/Chd/2018 (Assessment Years: 2006-07 & 2008-09) M/s. Motia Constructions Ltd., Chandigrh-Delhi Highway, Royale Estate, N.A.C., Zirakpur. बनाम Deputy Commissioner of Income-Tax, Central Circle, Patiala. ा ा ./PAN NO: AADCM 6576 B नधा रती क ओर से/Assessee by : Shri Sudhir Sehgal, Adv. राज व क ओर से/ Revenue by : Shri Sarabjeet Singh, CIT DR स ु नवाई क तार ख/Date of Hearing: 18.04.2022 उदघोषणा क तार ख/Date of Pronouncement: 16.06.2022 आदेश/ORDER Per Bench : ITA No. 401/Chd/2018 is the assessee’s appeal against the order dated 16.01.2018 passed by the Ld. Commissioner of Income Tax (Appeals)-5, Ludhiana [ CIT (A)] for assessment year 2006-07 wherein the Ld. CIT (A) has dismissed the assessee’s appeal as not being maintainable for two reasons namely, the appeal was late by more than one and half years and 2 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. the assessee had not been able to show sufficient reason for not presenting the appeal in time and secondly for the reason that no new addition had been made by the Assessing Officer (AO) vide order dated 30.03.2014 passed under section 143(3) of the Income Tax Act, 1961 (hereinafter called “the Act”) read with section 263 and had assessed the income at Rs. 13,04,,57,100/- which was the same as per the earlier assessment vide order dated 22.12.2010 passed under section 143(3)/153A of the Act. The Ld. CIT (A), while dismissing the appeal has noted that the additions made vide order dated 22.12.2010 had already been decided by the Ld. CIT (A) on merits vide order dated 20.03.2012 in Appeal no. 32/IT/CIT(A)-1/Ldh/2010-11. 1.1 In this regard the following grounds have been raised by the assessee :- ITA No. 401/Chd/2018. 1. That the ld. Commissioner of Income Tax (Appeals)-5, Ludhiana has erred in dismissing the appeal of the assessee, which is against the facts and circumstances of the case. 2. That the ld. CIT (A) has erred in not condoning the delay in filing the appeal, which was on account of sufficient and reasonable cause and which has been explained during the course of appellate proceedings before him and which have not considered properly by the CIT (A). 3. That the ld. CIT (A) has also erred in holding that no issue is to be decided by him since the assessee has withdrawn the original appeal before the Hon’ble Income Tax Appellate Tribunal, Chandigarh Bench Chandigarh and since the CIT (A) has set aside the original assessment for limited purpose and, as such, no appeal is maintainable by him. 4. That the CIT (A) has erred in holding that the appeal as filed before him is infructuous and non-maintainable as per finding in para (b) at page 5 of the order. 3 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. 5. That the ld. CIT (A) has also erred in confirming the order of the Assessing Officer in assessing the income at Rs. 13,04,57,100/-. 6. That the confirmation of various additions is against the facts and circumstances of the case. 7. That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off. 2.0 ITA No. 402/Chd/2018 is also assessee’s appeal against order dated 16.01.2018 passed by the Ld. CIT (A)-5, Ludhiana for assessment year 2008-09 and in this appeal also the assessee has challenged the action of the Ld. CIT (A) in holding that the appeal before him was to be dismissed as being not maintainable on account of the appeal being late by more than one and half years and the assessee not being able to show sufficient reason for not presenting the appeal in time. Here also, in the impugned order, the Ld. CIT (A), while holding the appeal as not maintainable, has observed that no new addition had been made by the AO vide order dated 30.03.2014 passed under section 143(3) read with section 263 of the Act and had assessed the income at Rs. 2,98,18,313/- which was the same as the income assessed earlier vide order dated 22.12.2010 passed under section 143(3)/153A of the Act. Here also the Ld. CIT (A) has noted that the additions made in assessment order dated 22.12.2010 have already been decided by Ld. CIT (A) on merits vide order dated 2003.2012 in Appeal No. 34/IT/CIT(A)- 1/Ldh/2010-11 and, therefore, the appeal was infructuous and not maintainable. 2.1 In this regard the following grounds have been raised by the assessee :- 4 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. 1. That the ld. Commissioner of Income Tax (Appeals)-5, Ludhiana has erred in dismissing the appeal of the assessee, which is against the facts and circumstances of the case. 2. That the ld. CIT (A) has erred in not condoning the delay in filing the appeal, which was on account of sufficient and reasonable cause and which has been explained during the course of appellate proceedings before him and which have not considered properly by the CIT (A). 3. That the ld. CIT (A) has also erred in holding that no issue is to be decided by him since the assessee has withdrawn the original appeal before the Hon’ble Income Tax Appellate Tribunal, Chandigarh Bench Chandigarh and since the CIT (A) has set aside the original assessment for limited purpose and, as such, no appeal is maintainable by him. 4. That the CIT (A) has erred in holding that the appeal as filed before him is infructuous and non-maintainable as per finding in para 4.1at page 4 of the order. 5. That the ld. CIT (A) has also erred in confirming the order of the Assessing Officer in assessing the income at Rs. 23,74,18,310/-. 6. That the confirmation of various additions is against the facts and circumstances of the case. 7. That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off. 3.0 The Ld. A/R submitted that in both the appeals the factual matrix was identical. It was submitted that in assessment year 2006-07 the original order of assessment was passed under section 143(3)/153A of the Act on 22.12.2010 and the appeal against the said order was filed before the Ld. CIT(A), Ludhiana which came to be dismissed vide order dated 20.03.2012. It was further submitted that, subsequently, the assessee approached the ITAT Chandigarh 5 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. Bench against the said order of the Ld. CIT(A) in ITA No. 613/Chd/2012 but meanwhile the Ld. PCIT passed order under section 263 of the Act vide order dated 28.03.2013 and the assessee approached the ITAT Chandigarh Bench again against the order passed under section 263 of the Act in ITA no. 518/Chd/2013. It was further submitted that it was during the course of pendency of assessee’s appeal in the quantum proceedings before the ITAT that the AO passed the consequential order under section 143(3) read with section 263 of the Act on 30.03.2014 (impugned assessment order) and in this order the AO assessed the same income as originally assessed under section 143(3)/153A of the Act. It was further submitted that in view of these chain of events the assessee withdrew the original quantum appeal filed before ITAT Chandigarh Bench bearing ITA No. 613/Chd/2012 since by virtue of the order under section 263, the original order of assessment did not survive. It was further submitted that, thereafter, the assessee also withdrew the appeal filed against the order passed under section 263 of the Act in ITA No. 518/Chd/2013. The Ld. A/R submitted that, since in the revised order of assessment, which was passed on 30.03.2014, as consequent to the order passed under section 263 of the Act, the income assessed had remained the same as per the original order of assessment dated 22.12.2010, the assessee was of the view that there was no purpose of filing the appeal against the second order of assessment as passed on 30.03.2014 before the Ld. CIT (A) so that duplication of proceedings may be avoided. It was submitted that since at one point of time, appeal 6 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. against order under section 263 and another appeal against the original order were pending before the ITAT Chandigarh Bench, the assessee, under bonafide belief, that only one of the appeals would be maintainable before the ITAT withdrew the appeal. It was submitted that these facts were duly brought to the notice of the Ld. CIT(A) in form of an application for condonation of delay when the assessee preferred appeal against the order passed under section 143(3) read with section 263 of the Act before the Ld. CIT (A) and it was submitted that in the interest of substantial justice, the Ld. CIT (A) should have admitted the appeal of the assessee by condoning the delay and, thereafter, adjudicated the appeal of the assessee on merits. 4.0 With respect to assessment year 2008-09, the Ld. A/R submitted that there was a search and seizure operation under section 132 of the Act on 25.09.2009 at the various business and residential premises of the assessee company and, thereafter, statutory notice under section 153A of the Act was issued in response to which the assessee filed return of income declaring income at Rs. 4,93,420/- and the assessment came to be completed at an income of Rs. 2,98,18,313/-. It was further submitted that against this order of assessment under section 143(3) read with 153A of the Act, the assessee filed an appeal before the Ld. CIT (A)-1, Ludhiana who dismissed the appeal of the assessee and, thereafter, the assessee company approached the ITAT Chandigarh Bench for redressal of its various grievances in ITA No. 7 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. 615/Chd/2012. It was further submitted that while the appeal of the assessee before the ITAT was pending, the Ld. PCIT (Central), Ludhiana passed an order under section 263 of the Act vide order dated 28.03.2013 and the assessee company preferred an appeal against this order passed under section 263 of the Act also. It was further submitted that, thereafter, the AO passed consequential order under section 143(3) read with section 263 of the Act vide order dated 30.03.2014. In this assessment order, the assessment was completed at the same income as the assessed income in original assessment order dated 22.12.2010. It was further submitted that, thereafter, the assessee withdrew the appeal filed before the ITAT Chandigarh Bench against order passed under section 263 of the Act and also withdrew the original quantum appeal bearing ITA No.615/Chd/2012 which was against the order of the Ld. CIT (A) dated 20.03.2012. The Ld. A/R further submitted that the assessee company had also filed an appeal on 28.12.2015 before the Ld. CIT (A), Ludhiana against orders passed under section 143(3) read with section 263 but in the meanwhile the Ld. PCIT (Central) Ludhiana passed another order under section 263 of the Act vide order dated 28.03.2016. The Ld. A/R further submitted that the assessee preferred another appeal against the second order passed under section 263 of the Act before ITAT Chandigarh Bench and in the meanwhile the AO passed the second consequential order under section 143(3) read with section 263 of the Act vide order dated 30.06.2016 and, thereafter, the 8 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. assessee company approached the Ld. First Appellate Authority against the second order passed under section 143(3) read with section 263. 5.0 The Ld. A/R submitted that it was in these circumstances that the assessee filed two appeals i.e. for assessment year 2006-07 and 2008-09 before the Ld. CIT (A) belatedly and the Ld. CIT (A), without appreciating the sequence of events simply held that these two appeals were not maintainable for the reason as mentioned in the impugned orders. 6.0 The Ld. A/R further submitted that the assessee had preferred to file Miscellaneous Applications seeking recall of assessee’s appeals in quantum proceedings filed before the ITAT Chandigarh Bench which had earlier been withdrawn by the assessee and it was submitted that the two appeals bearing ITA Nos. 613/Chd/2012 and 615/Chd/2012 had been recalled in Miscellaneous Application Nos. 118/Chd/2018 and 119/Chd/2018 respectively. 7.0 The Ld. A/R further submitted that in view of these two appeals having been recalled and, thereafter, having been heard by the same Bench of ITAT, the decision of the ITAT in these two appeals i.e. ITA Nos. 613/Chd/2012 and 615/Chd/2012 would squarely apply to the present two captioned appeals. The Ld. A/R submitted that, thus, these two appeals were now consequential to the orders of the ITAT in the assessee’s two appeals in ITA Nos. 613/Chd/2012 and 615/Chd/2012. 9 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. 8.0 On a query from the Bench, the Ld. A/R fairly accepted that the assessee’s appeal against the 263 order for assessment year 2008-09 has since been decided in favour of the assessee. The Ld. A/R placed a copy of said order in ITA No. 813/Chd/2016 dated 28.09.2017 for assessment year 2008-09. 9.0 Per Contra, the Ld. CIT D/R did not dispute the factual matrix as narrated by the Ld. A/R. 10.0 We have given a thoughtful consideration to the submissions of the Ld. A/R and it is seen that as far as the assessee’s appeal for assessment year 2006-07 is concerned, we have already partly allowed the assessee’s appeal in ITA No. 613/Chd/2012 vide separate order dated 16.06.2022. We note that identical additions had been made by the AO vide order dated 30.03.2014 consequent to the order under section 263 of the Act and, therefore, the identical issue stands adjudicated in ITA No. 613/Chd/2012 for assessment year 2006-07 and, therefore, our adjudication would apply squarely to the present captioned appeal in ITA No. 401/Chd/2018. Accordingly, there is no need to go into the merits of the case again and this appeal i.e. ITA No. 401/Chd/2018 assumes only an academic interest. Accordingly, the same is dismissed as infructuous. 11.0 Coming to the above captioned appeal for assessment year 2008-09, it is seen that the order passed by the Ld. CIT under section 263 of the Act dated 10 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. 28.03.2016 was the subject matter of appeal before the ITAT in ITA No. 813/Chd/2016 vide order dated 28.09.2017 wherein the ITAT has quashed the order passed by Ld. CIT under section 263 of the Act. It is seen that the Ld. CIT (A) has duly noted that the very basis of assessment order dated 30.06.2016 has not survived resulting in the assessment as well as the demand getting quashed. Thus, in our view, the Ld. CIT (A) has rightly held the appeal as not maintainable and we uphold the same. 12.0 In the final result, both the appeals of the assessee stand dismissed. Order pronounced on 16.06.2022. Sd/- Sd/- ( N. K. SAINI ) (SUDHANSHU SRIVASTAVA) Vice President याय क सद य/Judicial Member Dated: 16.06.2022 *Das* आदेश क % त&ल'प अ*े'षत/ Copy of the order forwarded to : 1 अपीलाथ+/ The Appellant 2. %,यथ+/ The Respondent 3. आयकर आय ु -त/ CIT 4. आयकर आय ु -त (अपील)/ The CIT(A) 5. 'वभागीय % त न0ध, आयकर अपील य आ0धकरण, च2डीगढ़/ DR, ITAT, CHANDIGARH 11 ITA Nos. 401 & 402/Chd/2018 M/s. Motia Constructions Ltd. 6. गाड फाईल/ Guard File आदेश न ु स र/ By order, सह यक पंजीक र/ Assistant Registrar Draft dictated 08.06.2022 Sr.PS Draft placed before author 09.06.2022 Sr.PS Approved Draft comes to the Sr.PS/PS 15 .06.2022 Sr.PS Order signed and pronounced on 16.06.2022 File sent to the Bench Clerk 17.06.2022 Sr.PS Date on which file goes to the AR Date on which file goes to the Head Clerk. Date of dispatch of Order.