ITO, CHITTORGARH V. Shri Sushil Kumar Kall, CHITTORGARH

ITA 417/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5186 (ITAT-JODHPUR)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 03-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Keywords: Reopening of assessment
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE: SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO.417/JODH/2015 ASSESSMENT YEAR: 2009-10 THE INCOME TAX OFFICER, WARD - 2, CHITTORGARH VS. SHRI SUSHIL KUMAR KALL, S/O. MADAN LAL KAL, D. S. ROADLINES, VILL. SAWA, CHITTORGARH. PAN :ACTPK 2028B APPELLANT RESPONDENT APPELLANT BY SHRI S. L. MOURYA, DR RESPONDENT BY SHRI SUSHIL KUMAR [ASSESSEE] DATE OF HEARING: 17.03.2016 DATE OF PRONOUNCEMENT: 17.03.16 O R D E R PER: GEORGE MATHAN, J.M. : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT (A), UDAIPUR PASSED IN APPEAL NO.157/UDR/2014-1 5 DATED 08.05.2015 FOR ASSESSMENT YEAR 2009-10. 2. SHRI S. L. MOURYA, LEARNED DR REPRESENTED ON BEH ALF OF THE REVENUE AND SHRI SUSHIL KUMAR, THE ASSESSEE REP RESENTED IN PERSON. IT WAS SUBMITTED BY THE LEARNED DR THAT THE ISSUE IN THE REVENUES APPEAL WAS AGAINST THE ACTION OF T HE LEARNED CIT (A) IN DELETING THE DISALLOWANCE MADE T O 2 ITA NO.417/JODH/2014 VARIOUS PERSONS U/S 40(A) (IA) OF THE IT ACT BY REL YING UPON THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF MERILYN SHIPPING AND TRANSPORT LTD., 136 ITD 23 (SB). IT WAS A SUBMISSION THAT THE DECISION OF THE SPECIAL B ENCH IN THE CASE OF MERILYN SHIPPING AND TRANSPORT LTD. REF ERRED TO (SUPRA) HAD EFFECTIVELY BEEN OVERRULED IN VIEW OF T HE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF C IT VS M/S. CRESCENT EXPORT SYNDICATE (2013) 33 TAXMANN.COM 250 (CALCUTTA) AND THE HON'BLE GUJARAT HIGH COURT IN TH E CASE OF CIT VS SIKANDARKHAN N. TUNWAR. IT WAS A SUBMISSI ON THAT THE ASSESSEE IS A TRANSPORT CONTRACTOR AND HE HAD N OT DEDUCTED THE TDS WHEN MAKING THE PAYMENT TO THE TRU CK OWNERS. CONSEQUENTLY, THE PROVISIONS OF SECTION 40( A) (IA) OF THE ACT WAS INVOKED BY THE AO AND THE ADDITION MADE BY THE AO WAS DELETED BY THE LEARNED CIT (A). IT WAS A SUBMISSION THAT THE ORDER OF THE ON APPEAL THE LEARNED CIT (A) WAS LIABLE TO BE REVERSED. 3. IN REPLY, THE ASSESSEE SUBMITTED THAT THIS WAS A CASE OF REOPENING OF ASSESSMENT. IT WAS A SUBMISSION THAT O RIGINALLY THE ASSESSMENT HAD BEEN COMPLETED U/S 143(3) OF THE ACT ON 26-09-2010 AND SUBSEQUENTLY NOTICE U/S 148 OF THE A CT HAS 3 ITA NO.417/JODH/2014 BEEN SENT FOR REOPENING THE ASSESSMENT FOR MAKING T HE DISALLOWANCE. IT WAS A SUBMISSION THAT FORM NO. 15 I/15J HAD BEEN OBTAINED AND PRODUCED BEFORE THE AO ALSO. IT WAS A SUBMISSION THAT THE ORDER OF THE LEARNED CIT (A) WAS LIABLE TO BE UPHELD. 4. WE HAVE CONSIDERED THE SUBMISSIONS. ADMITTEDLY, WHEN THE ASSESSEE HAS RAISED THE ISSUE OF REOPENING AND HAS ARGUED ON THIS, THEN THE ASSESSEE IS INVOKING THE P OWER UNDER RULE 27 AS THE ISSUE OF REOPENING HAS BEEN AR GUED BEFORE THE LEARNED CIT (A). ON PERUSAL OF THE REAS ONS RECORDED FOR REOPENING AS HAS BEEN FOUND IN THE ASS ESSMENT ORDER SHOWS THAT THE ORIGINAL ASSESSMENT WAS COMPLE TED U/S 143 (3) OF THE ACT ON 26-09-2010. THE REOPENING H AS BEEN DONE EVEN WHEN THE AO KNEW THAT THE ASSESSEE HAD PR ODUCED FORM NO.15-I/15J BEFORE THE AO. THE REOPENING IS B EING DONE BY REJECTING FORM 15-I/15J IN THE REASONS RECO RDED FOR REOPENING. THIS CLEARLY SHOWS THAT THE AO IS REAPPR AISING THE AVAILABLE FACT AND EVIDENCES AND IT WAS ONLY A CHAN GE OF OPINION, WHICH IS NOT PERMISSIBLE. IN THESE CIRCUMS TANCES, WE ARE OF THE VIEW THAT REOPENING OF THE ASSESSMENT IT SELF IS INVALID ON THE FACTS OF THE CASE AND CONSEQUENTLY T HE 4 ITA NO.417/JODH/2014 ASSESSMENT DONE AS A CONSEQUENCE OF THE INVALID REASSESSMENT STANDS QUASHED. 5. COMING TO THE MERITS OF THE CASE, ADMITTEDLY, THE HON'BLE CALCUTTA HIGH COURT AND THE HON'BLE GUJ ARAT HIGH COURT HAS DISAPPROVED THE DECISION OF THE SPECIAL B ENCH OF THIS TRIBUNAL IN THE CASE OF MERILYN SHIPPING AND T RANSPORT LTD. REFERRED TO ABOVE (SUPRA). HOWEVER, THE ALLAHA BAD HIGH COURT IN THE CASE OF CIT VS VECTOR SHIPPING SERVICE S (P) LTD. [ITA NO.122 OF 2013] HAS REFERRED TO THE SPECIAL BE NCH DECISION IN THE CASE OF MERILYN SHIPPING AND TRANSP ORT LTD., AND HAS APPROVED THE DECISION IN THE SAID CASE. AGA INST THE DECISION IN THE CASE OF CIT VS VECTOR SHIPPING SERV ICES (P) LTD. REFERRED TO ABOVE (SUPRA), THE REVENUE HAS FIL ED A SPECIAL LEAVE PETITION BEFORE THE HON'BLE SUPREME C OURT AND THE SAME HAS ALSO BEEN DISMISSED. IN THESE CIRCUMST ANCES, WE ARE OF THE VIEW THAT THE DECISION IN FAVOUR OF T HE ASSESSEE WOULD HAVE TO BE CONSIDERED AS THERE IS NO DECISION SPECIFICALLY OF THE JURISDICTIONAL HIGH COURT AND T HE DECISIONS OF THE HON'BLE HIGH COURTS OF THE OTHER S TATES ARE CONFLICTING. THIS IS ONE OF THE BASIC PRINCIPLES OF JURISPRUDENCE. A PERUSAL OF THE ORDER OF THE LEARNE D CIT (A) 5 ITA NO.417/JODH/2014 SHOWS THAT THE LEARNED CIT (A) HAS TAKEN INTO CONSIDERATION THE FACT THAT THE DECISION OF THE HON 'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS VECTOR S HIPPING SERVICES (P) LTD. REFERRED TO ABOVE (SUPRA) HAS GOT APPROVED BY DISMISSAL OF THE SPECIAL LEAVE PETITION FILED BY THE REVENUE BEFORE THE HON'BLE SUPREME COURT . THUS, IT IS NOTICED THAT THE LEARNED CIT (A) HAS APPLIED THE CO RRECT PRINCIPLES WHILE ADJUDICATING THE ISSUE AND WE FIND NO REASON TO INTERFERE WITH THE SAME. CONSEQUENTLY, TH E APPEAL FILED BY THE REVENUE STANDS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17.03.2016. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, DATED: 17 TH MARCH, 2016 LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - 6 ITA NO.417/JODH/2014 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. CIT CONCERNED 4. CIT (A) CONCERNED 5. DR, ITAT, JODHPUR 6. GUARD FILE BY ORDER, SR. PRIVATE SECRETARY DATE INITIAL ORI GINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FIL E 1. DRAFT DICTATED ON 17.03.16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 18.03.16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 18.03.16 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 18.03. 16 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 18 .03.16 SR.PS 6. DATE OF PRONOUNCEMENT 17.03.16 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