U.P.State Industrial Development Corporation Ltd., Kanpur V. Asstt. Commissioner of Income Tax-6, Kanpur

ITA 447/LKW/2012

• Counselvise Citation: 44723714 RSA 2012
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-11-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 06-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: O P MEENA
• Keywords: Opportunity of being heard
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.447/LKW/2012 ASSESSMENT YEAR:2005 - 06 DY.C.I.T. - 6, KANPUR. VS U.P. INDUSTRIAL DEVELOPMENT CORPORATION LTD. (UPSIDC), A - 1/4, LAKHANPUR, KANPUR. PAN:AAACU1759K (RESPONDENT) (APPELLANT) SHRI P. K. KAPOOR, C.A. APPELLANT BY SHRI O. P. MEENA, CIT, D. R. RESPONDENT BY 21/11/2014 DATE OF HEARING 07 /01/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, KANPUR DATED 27/03/2012 FOR THE ASSESSMENT YEAR 2005 - 2006. 2. GROUND NO. 3, AS PER CONCISE GROUNDS OF FILED BY THE ASSESSEE, IS AS UNDER: BECAUSE ON A DUE CONSIDERATION OF THE UNDISPUTED FACT THAT THE OBJECTION RAISED BY THE APPELLANT (BEFORE THE ASSESSING OFFICER HIMSELF) AFTER THE RECEIPT OF COPY OF REASONS RECORDED, REMAIN UNDISPOSED OF AND UNDECIDED BY THE ASSE SSING OFFICER, THE ASSESSMENT ORDER DATED 31/12/2009 CAPTIONED AS ORDER U/S 143(3)/147 OF THE ACT DESERVES TO BE TREATED AS VOID AB INITIO AND WITHOUT JURISDICTION. 2 3. WITH REGARD TO THIS GROUND, LEARNED A.R. OF THE ASSESSEE HAS MADE THE FOLLOWING WRITTEN SUBMISSIONS AS PER PARA 23, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 23. GROUND NO.3 - AS STATED ABOVE, THE APPELLANT HAD DULY COMPLIED WITH THE NO TICE UNDER SECTION 148 BY STATING THAT THE 'RETURN' FILED EARLIER MAY BE TREATED TO HAVE BEEN FILED IN COMPLIANCE WITH THE NOTICE UNDER SECTION 148, IN DUE COURSE OF TIME, THE OBJECTIONS TO THE VALIDITY OF INITIATION OF PROCEEDINGS HAD ALSO BEEN TAKEN AS S TATED IN PARA 9 ABOVE AND THE OBJECTION SO RAISED HAD NOT BEEN DISPOSED OFF BY THE ASSESSING OFFICER AS PER THE PRINCIPLE OF LAW AS LAID DOWN IN THE CASE OF GKN DRIVESHAFTS (INDIA) LIMITED (SUPRA) AS HAS BEEN DISCUSSED IN PARAS 9 TO 12 ABOVE. THE REQUIREME NT OF LAW HAVING NOT BEEN MET, THE ASSESSMENT MADE IN PURSUANCE OF THE 'REASONS RECORDED' IS VITIATED. RELIANCE IN THIS REGARD IS PLACED ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF ALLANA COLD STORAGE LTD. VS. ITO REPORTED IN (2006) 287 ITR 1, COPY APPEARING AT PAGES 183 TO 186 OF THE PAPER BOOK, WHEREIN THEIR LORDSHIPS HAVE OBSERVED AND HELD AS UNDER: - 'WE HAVE NOTED THE SUBMISSIONS OF BOTH COUNSELS . THE LAW AS LAID DOWN BY THE APEX COURT IS BINDING ON THIS COURT AS WELL AS ON THE AUTHORIT IES FUNCTIONING UNDER THE STATUTE. THIS BEING THE POSITION, WE FAIL TO UNDERSTAND AS TO WHY THE FIRST RESPONDENT DID NOT DECIDE THE OBJECTIONS SEPARATELY WHICH HE IS DULY BOUND TO DECIDE. THE WHOLE IDEA IN LAYING DOWN THE LAW IN THE ABOVE REFERRED JUDGMENT OF THE APEX COURT IS TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO KNOW AS TO WHAT IS THE DECISION ON HIS OBJECTIONS, WHICH DECISION HAS ALSO TO BE ARRIVED AT AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE. IN THE PRESENT CASE, THE ASSESSEE HAS BEEN DENIED THIS OPPORTUNITY. NOR ONLY THAT BUT IN THE FIRST THREE WRIT PETITIONS WHAT WE FIND IS THAT A COMMON ORDER HAS BEEN PASSED ON THE OBJECTIONS AS WELL AS FOR THE REASSESSMENT. IN THE FOURTH MATTER, THE ASSESSMENT ORDER DOES NOT DISCLOSE ANY DECISION ON THE OBJECTI ONS AT ALL THE UNDOUBTEDLY NO SUCH DECISION HAS BEEN GIVEN SEPARATELY ON THE OBJECTIONS. HAVING NOTED THIS SCENARIO, IN OUR VIEW THE PROPER COURSE WILL BE TO INTERFERE WITH THE ASSESSMENT ORDERS PASSED IN ALL FOUR MATTERS BY THE CONCERNED OFFICER. WE ARE AWARE 3 THAT WHEN AN ALTERNATIVE REMEDY IS RESORTED TO, THE WRIT JURISDICTION IS NOT TO BE EXERCISED, BUT THAT IS A RULE OF SELF - LIMITATION. THE ORDERS CHALLENGED IN THE PRESENT MATTER ARE CLEARLY AGAINST THE LAW LAID DOWN BY THE APEX COURT AND, THEREFORE, T HE EXERCISE OF WRIT JURISDICTION IS CALLED FOR. THAT BEING SO, WE ALLOW ALL THESE PETITIONS AND QUASH AND SET ASIDE THE ORDERS OF ASSESSMENT PASSED IN ALL THESE FOUR PETITIONS. INASMUCH AS THE ASSESSMENT ORDERS ARE SET ASIDE, THE APPEALS FILED BY THE PETIT IONERS NO LONGER REQUIRE TO BE PROSECUTED. THE SAME WILL STAND DISPOSED OF.' IN VIEW OF THEE SAID POSITION OF LAW, THE ASSESSMENT ORDER DATED 31.12.2009 DESERVES TO BE VACATED AND THE APPELLANT RESPECTFULLY PRAYS FOR THE SAME. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT ADMITTEDLY , THE OBJECTION RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AGAINST REOPENING WERE NOT SEPARATELY DISPOSED OF BY THE ASSESSING OFFI CER. THAT BEING SO, AS PER THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. 259 ITR 19 AND ALSO AS PER THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT RENDERED IN THE CASE OF ALLANA COLD STORAGE LTD. VS. INCOME TAX OFFICER [2006] 287 ITR 1, SUCH ASSESSMENT ORDER HAS TO BE SET ASIDE AND THE ASSESSING OFFICER HAS TO BE DIRECTED THAT HE SHOULD PASS SEPARATE SPEAKING ORDER ON THE OBJECTIONS OF THE ASSESSEE AND THEREFORE, RESPECTFULLY FOLLOWING THESE JUDGMENTS, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR PASSING SPEAKING AND SEPARATE ORDER ON THE OBJECTIONS OF THE ASSESSEE REGARDING VALIDITY OF REOPENING AND IF SUCH OBJECTIONS ARE REJECTED TH EN THE ASSESSING OFFICER SHOULD REFRAME THE ASSESSMENT ORDER. NEEDLESS TO SAY, FOR PASSING BOTH THE ORDERS I.E. SEPARATE SPEAKING ORDER AGAINST THE OBJECTIONS RAISED BY THE ASSESSEE FOR REOPENING AND THE ASSESSMENT ORDER IF REQUIRED TO BE FRAMED AGAIN AS PER HIS ORDER TO BE PASSED 4 AGAINST OBJECTIONS OF REOPENING, THE ASSESSING OFFICER SHOULD PROVIDE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUND NO. 3 IS ALLOWED. 6. IN VIEW OF OUR DECISION REGARDING GROUND NO. 3, THE OTHER GROUN DS RAISED BY THE ASSESSEE DO NOT CALL FOR ANY ADJUDICATION AT THIS STAGE BECAUSE THE OBJECTIONS AGAINST THE VALIDITY OF REOPENING ARE TO BE DECIDED FIRST BY THE ASSESSING OFFICER AND IF IT IS FOUND THAT THERE IS NO MERIT IN THE OBJECTIONS OF THE ASSESSEE T HEN THE ASSESSMENT ORDER IS TO BE REFRAMED BY THE ASSESSING OFFICER AND THEREFORE, ON NONE OF THESE ISSUES , ANY ADJUDICATION IS CALLED FOR AT THIS STAGE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS IND ICATED ABOVE. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07 /01/2015. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR