Assistant Commissioner of Income-tax, V. Kalyani Forge Ltd., Pune

ITA 451/PUN/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7144 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 13-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Keywords: Reassessment proceedings
• Section: 143(3); 80IB; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , ! , '#$ !% , ! & BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWAS THY,JM #' / ITA NO. 451/PUN/2015 ( )( / ASSESSMENT YEAR : 2004-05 ASSISTANT COMMISSIONER OF INCOME TAX. CIRCLE-14, PUNE ....... APPELLANT / V/S. KALYANI FORGE LIMITED SHANGRILA GARDEN, 1 ST FLOOR OPP. BUND GARDEN, PUNE-411001 PAN : AAACK7311H / RESPONDENT ASSESSEE BY : SHRI C.H NANIWADEKAR REVENUE BY : SHRI P.S NAIK / DATE OF HEARING : 08.02.2017 / DATE OF PRONOUNCEMENT : 10.02.2017 * / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE O RDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, PUNE DATED 30.09.20 14 FOR THE ASSESSMENT YEAR 2004-05. 2 ITA NO. 451/PUN/2015 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF FORGINGS, FINA NCE, LEASING AND DEALING IN SECURITIES. THE ASSESSEE FILED ITS RETUR N OF INCOME FOR THE ASSESSMENT YEAR 2004-05 ON 31.10.2004 DECLARING TOTAL INCOME OF RS.12,92,22,250/-. THE ORIGINAL ASSESSMENT U/S 143(3) OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS COMPLETED ON 04.12.2006 DETERMINING TOTAL INCOME OF THE ASSESSEE AS RS. 14,50,79,740/-AFTER ALLOWING DEDUCTION U/S 80 HHC AND 80IB OF THE ACT. SUBSEQUENTLY, REASSESSMENT PROCEEDINGS WERE INITIATE D AGAINST THE ASSESSEE AND NOTICE U/S 148 WAS ISSUED TO THE ASSESSE E ON 05.04.2010. IN REASSESSMENT THE ASSESSING OFFICER VIDE ORDER DATED 2 1.12.2010 PASSED U/S 143 (3) R.W.S 147 OF THE ACT, DETERMINED THE INCOME OF THE ASSESSEE AT RS. 14,70,28,402/-. 3. AGGRIEVED BY THE REASSESSMENT ORDER, THE ASSESSEE FILED APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) INTER ALIA C HALLENGING THE VALIDITY OF RE-OPENING OF ASSESSMENT. THE COMMISSIONER O F INCOME TAX (APPEALS) REJECTED THE CONTENTIONS OF THE ASSESSEE AND UPHELD THE VALIDITY OF REOPENING. HOWEVER ON MERITS, THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE ORDER DATED 24.10.2011 REMITTED THE ISSUE BACK T O THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO RECHECK THE CO MPUTATION. THE ASSESSEE CARRIED THE MATTER IN SECOND APPEAL BEFORE TRIB UNAL IN ITA NO. 782/PN/2012 CHALLENGING THE VALIDITY OF REASSESSMENT PROCE EDINGS. DURING THE PENDENCY OF THE APPEAL BEFORE THE TRIBUNAL, THE ASSESSING OFFICER VIDE ORDER DATED 24.10.2013 PASSED U/S 143(3) R.W.S 147 AND 250 OF THE ACT, IN PURSUANCE TO THE DIRECTIONS OF COMMISSIO NER OF INCOME TAX (APPEALS) VIDE ORDER DATED 24.10.2011 PASSED T HE CONSEQUENTIAL ORDER. THEREAFTER, THE ASSESSEE FILED APPEAL AGAINST THE 3 ITA NO. 451/PUN/2015 SAID ORDER OF ASSESSING OFFICER BEFORE COMMISSIONER OF INCOME TAX (APPEALS). DURING THE PENDENCY OF APPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS), THE TRIBUNAL IN THE EARLIER APPEAL FILED BY THE ASSESSEE CHALLENGING THE REASSESSMENT PROCEEDINGS HELD T HE REOPENING AS BAD IN LAW AND QUASHED THE SAME. THE COMMISSIONER OF INCOME TAX (APPEALS) ON THE BASIS OF T HE ORDER OF THE TRIBUNAL DATED 13.12.2013 IN ITA NO. 782/PN /2012(SUPRA) HELD THAT SINCE THE TRIBUNAL HAS QUASHED THE REASSESSME NT PROCEEDINGS, THE ASSESSMENT ORDER DATED 21.12.2010 PASSED U/S 143 (3) R.W.S 147 DOES NOT SURVIVE AND CONSEQUENTIAL PROCEEDINGS/ ORDER A RISING THERE FROM ALSO DOES NOT SURVIVE. THE COMMISSIONER OF INCOME TA X (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE AS HAVING BECOME IN FRACTUOUS. AGAINST THESE FINDINGS OF THE COMMISSIONER OF INCOME TAX (AP PEALS), THE REVENUE IS IN APPEAL. 4. THE GROUNDS RAISED BY THE DEPARTMENT IN APPEAL AGA INST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) ARE AS UNDER:- 1) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS) WAS JU STIFIED IN FOLLOWING THE ORDER OF ITAT QUASHING THE REASSESSMENT PROCEED INGS INITIATED BY THE ASSESSING OFFICER? 2) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS) WAS JU STIFIED IN HOLDING THAT THE ASSESSEE HAS DISCLOSED FULLY AND TRULY ALL THE MATERIALS FACTS NECESSARY FOR COMPLETION OF THE ASSESSMENT? 3) FOR THE FACTS AND SUCH OTHER REASONS AS MAY BE U RGED AT THE TIME OF HEARING THE ORDER OF HONBLE COMMISSIONER OF INCOME TAX (APPEALS) PUNE MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4) THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTE R ANY OF THE ABOVE GROUNDS OF APPEAL. 4 ITA NO. 451/PUN/2015 5. SHRI P.S NAIK REPRESENTING THE DEPARTMENT PRAYED FOR SET ASID E THE IMPUGNED ORDER. 6. ON THE OTHER HAND, SHRI C.H NANIWADEKAR APPEARING ON BEHALF OF THE ASSESSEE DEFENDING THE ORDER OF COMMISSIONER OF INCO ME TAX (APPEALS) SUBMITTED THAT ONCE THE TRIBUNAL HAS QUASHED RE ASSESSMENT PROCEEDING, SUBSEQUENT ORDER/PROCEEDING ARISING FROM THE REASSESSMENT ORDER ARE BAD IN LAW. 7. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVE S OF BOTH THE SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BE LOW. THIS APPEAL BY THE DEPARTMENT IS EMANATING FROM PROCEEDINGS CONSEQU ENTIAL TO REASSESSMENT ORDER PASSED AGAINST THE ASSESSEE. THE A SSESSEE HAD CHALLENGED THE VALIDITY OF THE REASSESSMENT PROCEEDINGS B EFORE THE TRIBUNAL IN ITA NO. 782/ PN/2012. THE TRIBUNAL VIDE ORDER DATED 13.12.2013 HAS QUASHED THE REASSESSMENT PROCEEDING. THU S, THE SUBSEQUENT ORDERS/ PROCEEDINGS ARISING FROM THE REASSES SMENT ORDER ARE VITIATED AND ARE NOT SUSTAINABLE IN THE EYE OF LAW. I N THE PRESENT APPEAL THE DEPARTMENT HAS ASSAILED THE ORDER OF COMMISSIO NER OF INCOME TAX (APPEALS) ON THE GROUND THAT THE COMMISSIONE R OF INCOME TAX (APPEALS) HAS ERRED IN FOLLOWING THE ORDER OF THE TRIBUN AL. THE COMMISSIONER OF INCOME TAX (APPEALS) IS QUASI- JUDICIAL AUTH ORITY, SUB- ORDINATE TO THE TRIBUNAL. AS A MATTER OF JUDICIAL DISCIPLINE, TH E COMMISSIONER OF INCOME TAX (APPEALS) IS BOUND TO FOLLOW THE O RDER OF TRIBUNAL. WE DO NOT FIND ANY INFIRMITY IN THE ACTION OF COMMISS IONER OF INCOME TAX (APPEALS) IN FOLLOWING THE ORDER OF TRIBUNAL. 5 ITA NO. 451/PUN/2015 8. THE PRESENT APPEAL FILED BY THE DEPARTMENT IS MISCONCEIV ED AND LACKS MERIT. ACCORDINGLY, THE SAME IS DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 10 TH DAY OF FEBRUARY, 2017. SD/- SD/- (ANIL CHATURVEDI) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 10 TH FEBRUARY, 2017. SB *+,-$.$) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE COMMISSIONER OF INCOME TAX (APPEALS)-I, PUNE. 4. THE COMMISSIONER OF INCOME TAX-I, PUNE. ! '#$ %%&' , ( &' , ) )*+ , / DR, ITAT, B BENCH, PUNE. 6. $,-./ / GUARD FILE. // TRUE COPY// (0 / BY ORDER, /ASSISTANT REGISTRAR ( &' , / ITAT, PUNE