ACIT, Corporate Circle-1(2), Bhubaneswar V. M/s. Rajdhani Systems & Estates Pvt. Ltd., Bhubaneswar

ITA 448/CTK/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4388 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: B D OJHA

Judgement Text

1 ITA NO.444/CTK/2016 ITA NO.448/CTK/2016 ASSESSMENT YEAR : 2009 - 2010 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 444 /CTK/2016 ASSESSMENT YEAR : 20 09 - 2010 RAJDHANI SYSTEMS & ESTATES PVT LTD., PLOT NO.A - 103, SAHID NAGAR, BHUBANESWAR. VS. ACIT, CIRCLE 2(2), BHUBANESWAR. PAN/GIR NO. AABCR 8271 L (APPELLANT ) .. ( RESPONDENT ) ITA NO. 448 /CTK/2016 ASSESSMENT YEAR : 20 09 - 2010 ACIT, CIRCLE 2(2), BHUBANESWAR. VS. RAJDHANI SYSTEMS & ESTATES PVT LTD., PLOT NO.A - 103, SAHID NAGAR, BHUBANESWAR PAN/GIR NO. AABCR 8271 L (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI B.D.OJHA, AR REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 02 / 01 / 201 8 DATE OF PRONOUNCEMENT : 03 / 0 1/ 201 8 O R D E R PER PAVAN KUMAR GADALE, JM TH E CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE ORDER OF THE CIT(A) - 3, BHUBANESWAR DATED 30 TH SEPTEMBER, 2016 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 2 ITA NO.444/CTK/2016 ITA NO.448/CTK/2016 ASSESSMENT YEAR : 2009 - 2010 1.BECAUSE THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS - 3), BHUBANESWAR ERRED IN LAW AS WELL IN FACT BY CONFORMING THE ADDITION OF RS. 1,75,55,622/ - BEING 25% OF THE INCREMENTAL ADVANCE RECEIVED FROM CUSTOMERS WITHOUT APPRECIATING THE NATURE OF BUSINESS OF THE APPELLANT, IGNORING THE EVIDENCE ON RECORD AND THE ADDITION IS LIABLE TO BE ALLOWED. 2,BECAUSE THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS - 3) , BHUBANE SWAR ERRED IN LAW AS WELL AS IN FACT BY CONFORMING THE ADDITION OF LAND DEVELOPMENT EXPENSES AMOUNTING TO RS.60,98,560/ - WITHOUT APPRECIATING THE BUSINESS NECESSITY OF SUCH EXPENSES WHICH IS CONTRARY TO THE EVIDENCE ON RECORD AND SAME IS LIABLE TO BE ALLOW ED. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS IN THE BUSINESS OF REAL ESTATE . IT FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 - 2010 DISCLOSING A TOTAL INCOME OF RS.7,23,379/ - . THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S.143(3) OF THE ACT ON 23.12.2011 ON A TOTAL ASSESSED INCOME OF RS.2,81,29,100/ - , INTER ALIA, MAKING VARIOUS ADDITIONS/DISALLOWANCE S AGGRIEVED BY THE ASSESSMENT ORDER U/S.143(3) OF THE ACT, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) ON 23.1.2012. SUBSEQUENTLY, THE ASSESSING OFFICER ISSUED NOTICE U/S.148 OF THE ACT AND FRAMED ASSESSMENT U/S.143(3)/147 OF THE ACT AND COMPLETED TH E ASSESSMENT ON 28.8.2014 MAKING FURTHER ADDITION OF RS.3,92,382/ - AND ASSESSED INCOME AT RS.2,85,21,483/ - . 4. THE ASSESSEE FILED APPEAL WITH T HE CIT(A) AGAINST THE ORDER U/S.143(3) OF THE ACT AND SUBMITTED IN APPELLATE PROCEEDINGS THAT THE APPEAL FILED U/S.143(3) IS INFRUCTUOUS AS THE ASSESSEE HAS FILED APPEAL BEFORE THE CIT(A) AGAINST THE ORDER U/S.143(3)/147 OF THE ACT. 3 ITA NO.444/CTK/2016 ITA NO.448/CTK/2016 ASSESSMENT YEAR : 2009 - 2010 ACCORDINGLY, THE CIT(A) DISMISSED THE APPEAL U/S.143(3) AS INFRUCTUOUS AND OBSERVED THAT WITH THE PASSING OF ORDER U/S.143 ( 3)/147 DATED 28.8.2014 FOR ASSESSMENT YEAR 2009 - 2010 IN THE CASE OF THE ASSESSEE, THE EARLIER ORDER U/S.143(3) DATED 23.12.2011 NO LONGER EXISTS IN THE EYES OF LAW. FURTHER, AS SUBMITTED BY THE LD A.R. (VIE ORDER SHEET ENTRY DATED 12.9.2014), THE GROUNDS TAKEN IN THE PRESENT APPEAL SHALL BE TAKEN BY THE APPELLANT IN THE FRESH APPEAL TO BE FILED BY IT AGAINST NEW ORDER DATED 28.8.2014 AND DISMISSED THE APPEAL OF THE ASSESSEE AND IN RESPECT OF APPEAL U/S.143(3) R.W.S 147 OF THE ACT, THE LD CIT(A) HEARD THE CASE AND PARTLY ALLOWED THE APPEAL. 5. BEING AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. PRIMA FACIE, LD A.R. SUBMITTED THAT THE ASSESSEE HAS CHALLENGED THE ORDER U/S.143(3)/147 AND FURTHER SUBMITTED THAT EARLIER ORDER U/S.143(3) WAS PASSED ON 23.12.2011 AND SUBSEQUENTLY NOTICE U/S.148 WAS ISSUED. THE CONTENTION OF LD A .R. IS THAT THE ORDER U/S.143(3) IS MERGED W ITH THE ORDER U/S.143(3)/147 ON 28.8.2014 AND ALSO CONSIDERED THE GROUNDS U/S.143(3). WE ARE OF THE OPINION THAT THE ORDER U/S.143(3) DATED 23.12.2011 AND ORDER U/S.143(3)/147 DATED 28.8.2014 ARE TWO SEPARATE APPELALTE ORDERS AND THE SUBMISSION OF LD A .R. THAT THE ORDER U/S.143(3) MERGED WITH 4 ITA NO.444/CTK/2016 ITA NO.448/CTK/2016 ASSESSMENT YEAR : 2009 - 2010 U/S.143 ( 3)/147 CANNOT BE ACCEPTED. IN THE PRESENT APPEAL, THE ASSESSEE HAS NOT RAISED GROUNDS BASED ON THE ORDER U/S.143(3)/147 OF THE ACT AND FURTHER NOT CHALLENGED THE ADDITIONS IN THE ORDER U/S.143(3)/147 , AN D WE ARE OF THE OPINION THAT APPEAL IS NOT MAINTAINABLE ACCORDINGLY, WE DISMISS THE APPEAL FILED BY THE ASSESSEE. 7. IN VIEW OF OUR DECISION IN THE ASSESSEES APPEAL THAT SINCE THE APPEAL AGAINST THE ORDER U/S.143(3)/147 IS NOT MAINTAINABLE, THE APPEAL FIL ED BY THE REVENUE IS ALSO NOT ADJUDICATED AND SAME IS DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE AND REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 3 / 01 /201 8 . SD/ - SD/ - ( N.S SAINI) ( PAVAN KUMAR GADALE) A CCOUNTANT MEMBER JUDICIALMEMBER CUTTACK; DATED 3 / 01 /201 8 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : /ASSESSEE: RAJDHANI SYSTEMS & ESTATES PVT LTD., PLOT NO.A - 103, SAHID NAGAR, BHUBANESWAR 2. THE RESPONDENT. /REVENUE: ACIT, CIRCLE 2(2), BHUBANESWAR 3. THE CIT(A) - 3, BHUBANESWAR 4. PR.CIT - BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//