Smt Uma Goenka, Kanpur V. ACIT, Kanpur

ITA 421/LKW/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8153 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-08-2012
• Assessment Year: misc
• Appeal Filed On: 06-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: S K GARG
• Keywords: Reopening of assessment; Principle of natural justice; Revised return
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI B. R. JAIN , ACCOUNTANT MEMBER ITA NO. 421/LKW/2011 ASSESSMENT YEAR: 2001 - 02 SMT. UMA GOENKA 316, ANANDPURI KANPUR V. ACIT RANGE 3 KANPUR PAN: AHAPG2697L (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. S. K. GARG, ADVOCATE RESPONDENT BY: SHRI. ALOK MITRA, D.R. DATE OF HEARING: 09.08.2012 DATE OF PRONOUNCEMENT: 24.08.2012 O R D E R PER S UNIL KUMAR YADAV : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS, WHICH ARE AS UNDER: - 1 . BECAUSE NO INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT IN THE CASE OF THE 'APPELLANT' AND DIRECTION GIVEN BY THE 'CIT(A)' TO THE ASSESSING OFFICER, READING AS 'TO REINITIATE THE PROCEEDINGS U/S 148 (FOR THE YEAR UNDER REFERENCE) BY RECORDING PROPER REASONS AND AFTER SEEKING PROPER APPROVAL OF THE SUPERIOR AUTHORITIES AS PER THE LAW' BY INVOKING THE PROVISIONS OF SECTION 150 OF THE 'ACT', ARE WHOLLY ILLEGAL. 2 . BEC AUSE THE 'CIT(A)' HAVING HIMSELF FOUND THAT 'REASONS RECORDED' (BY THE ASSESSING OFFICER) ARE NOT GERMANE TO VALID : - 2 - : INITIATION OF PROCEEDINGS UNDER SECTION 147, THE DIRECTION AS AFORESAID ARE 'IN EXCESS' OF AND EVEN AMOUNTS TO IMPROPER EXERCISE OF JURISDICT ION VESTED IN THE FIRST APPELLATE AUTHORITY, UNDER SECTION 150 OF THE 'ACT', AND THE SAME DESERVES TO BE QUASHED. 3 . BECAUSE EVEN ON THE BASIS OF 'REVISED RETURN' FILED BY THE 'APPELLANT', WHIC H HAS BEEN HELD TO BE NON - EST DIRECTION FOR RE - INITIATION OF PROCE EDINGS UNDER SECTION 147 COULD NOT HAVE BEEN GIVEN BY THE 'CIT(A)'; AS THE SAME AMOUNTED TO AN ALTOGETHER FRESH EXERCISE OF JURISDICTION WHICH UNDER SECTION 147 IS THE SOLE PREROGATIVE OF THE ASSESSING OFFICER HIMSELF, WITHOUT BEING INFLUENCED BY THE DICTA TES. 4 . BECAUSE IN ANY CASE, THE DIRECTION (SO CALLED) AS GIVEN UNDER SECTION 150 AND AS HA S BEEN REPRODUCED IN GROUND NO.1 ABOVE, ARE BARRED BY LIMITATION AS WELL AS BEYOND THE SCOPE OF JURISDICTION OF THE CIT(A) ', UNDER SECTION 150 OF THE ACT, ON THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 5 . BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 2 . THROUGH THESE GROUNDS, THE ASSESSEE HAS ASSAILED THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS NO JURISDICTION UNDER SECTION 251 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') TO ISSUE DIRECTION TO THE ASSESSING OFFICER TO REINITIATE PROCEEDINGS UNDER SECTION 148 OF THE ACT BY RECORDING PROPER REASONS. 3 . THE LD. COUNSEL FOR T HE ASSESSEE, DURING THE COURSE OF HEARING OF THE APPEAL, HAS INVITED OUR ATTENTION TO THE PROVISIONS OF SECTION 251 OF THE ACT GOVERNING THE POWERS OF THE LD. CIT(A) WHILE DISPOSING OF THE APPEAL FILED BEFORE HIM, WITH THE SUBMISSION THAT ACCORDING TO SUB - SECTION (1) OF : - 3 - : SECTION 251 OF THE ACT, THE LD. CIT(A) CAN EITHER CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. HE HAS NO JURISDICTION TO ISSUE DIRECTION TO THE ASSESSING OFFICER TO FRAME ASSESSMENT IN A PARTICULAR MANNER. THEREFORE, THE DIRECTION GIV EN BY THE LD. CIT(A) TO THE ASSESSING OFFICER TO REINIT I ATE PROCEEDINGS UNDER SECTION 148 OF THE ACT BY RECORDING PROPER REASONS AND AFTER SEEKING PROPER APPROVAL OF THE SUPERIOR AUTHORITIES ARE NO T IN ACCORDANCE WITH LAW. THEREFORE, THE ORDER RELATING TO THE DIRECTION OF THE LD. CIT(A) TO THE ASSESSING OFFICER BE SET ASIDE. 4 . THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT THIS APPEAL WAS DECIDED BY THE LD. CIT(A) IN FAVOUR OF THE ASSESSEE BY KNOCKING DOWN THE REOPENING OF THE ASSESSMENT. THEREFORE, TH E ASSESSEE HAS NO JURISDICTION TO FILE THE PRESENT APPEAL. 5 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF RECORD, WE FIND THAT AN APPEAL WAS FILED BEFORE THE LD. CIT(A) AGAINST REOPENING OF ASSESSMENT UNDER S ECTION 147 OF THE ACT AND THE LD. CIT(A) HAVING EXAMINED THE ISSUE IN DETAIL , STRUCK - DOWNED THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT AND ANNULLED THE ASSESSMENT FRAMED UNDER SECTION 147 READ WITH 143(3) OF THE ACT. AFTER ANNULLING THE ASSESSMENT, TH E LD. CIT(A) HAS ISSUED DIRECTION TO THE ASSESSING OFFICER UNDER SECTION 150 OF THE ACT TO REINITIATE PROCEEDINGS UNDER SECTION 148 OF THE ACT (FOR THE YEAR UNDER REFERENCE) BY RECORDING PROPER REASONS AND AFTER SEEKING PROPER APPROVAL OF THE SUPERIOR AUTH ORITIES AS PER LAW. AGGRIEVED WITH THIS DIRECTION, THE ASSESSEE IS BEFORE THE TRIBUNAL. THE SOLE ISSUE RAISED BEFORE THE TRIBUNAL IS WITH REGARD TO THE POWERS OF THE LD. CIT(A) WHILE DISPOSING OF THE APPEAL FILED BEFORE HIM AGAINST THE ASSESSMENT ORDER. THE POWERS OF THE LD. CIT(A) HAS BEEN GIVEN IN SECTION 251 OF THE ACT AND ACCORDING TO CLAUSE (A) OF SUB - SECTION (1) OF SECTION 251 OF THE ACT, THE LD. CIT(A) MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. NOTHING HAS BEEN MENTIONED IN THIS SECTIO N WITH : - 4 - : REGARD TO THE DIRECTION BY THE LD. CIT(A) TO THE ASSESSING OFFICER TO FRAME AN ASSESSMENT IN A PARTICULAR MANNER. PRIOR TO THE AMENDMENT OF SECTION 251 OF THE ACT W.E.F. 1.6.2001, THE LD. CIT(A) WAS ALS O EMPOWERED TO SET ASIDE THE ASSESSMENT, BUT B Y VIRTUE OF AMENDMENT THROUGH FINANCE ACT, 2001, THE POWER TO SET ASIDE THE ASSESSMENT ORDER WAS WITHDRAWN AND THE LD. CIT(A) WAS LEFT WITH THE POWER EITHER TO CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. FOR THE SAKE OF REFERENCE, WE EXTRACT THE PRO VISIONS OF SECTION 251 OF THE ACT AS UNDER: - POWERS OF THE COMMISSIONER (APPEALS). 251. (1) IN DISPOSING OF AN APPEAL, THE COMMISSIONER ( APPEALS) SHALL HAVE THE FOLLOWING POWERS ( A ) IN AN APPEAL AGAINST AN ORDER OF ASSESSMENT, HE MAY C ONFIRM, REDUCE, ENH ANCE OR ANNUL THE ASSESSMENT . 6 . SINCE THE LD. CIT(A) IS NOT EMPOWERED TO ISSUE DIRECTION TO THE ASSESSING OFFICER AFTER ANNULLING THE ASSESSMENT TO FRAME THE ASSESSMENT IN A PARTICULAR MANNER, THE DIRECTION BY THE LD. CIT(A) TO THE ASSESSING OFFICER IS BE YO ND HIS JURISDICTION. THEREFORE, THE DIRECTION SO GIVEN BY THE LD. CIT(A) I S UNCALLED FOR AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) PASSED IN THIS REGARD. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COU RT ON 24.8.2012. S D/ - S D/ - [B. R. JAIN ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24.8.2012 JJ: 2208 : - 5 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR