ACIT 9(3), MUMBAI V. TECHNIMONT P. LTD, MUMBAI

ITA 4613/MUM/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6673 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 03-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBACHAN RAM
• Assessee Lawyers: NIKHIL
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI PRAMOD KUM AR (AM) I.T.A.NO.4613/MUM/2010 ASSESSMENT YEAR :2003-04 THE ASST. COMMISSIONER OF INCOME- TAX, CIRCLE 9(3), MUMBAI. VS. M/S. TECHNIMONT ICB PVT. LTD., BLDG. NO.2, TECHNIMONT ICB HOUSE, CHINCHOLI BUNDER, 504 LINK ROAD, MALAD (W), MUMBAI. 400 064 PAN: AAACI 2628 B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBACHAN RAM RESPONDENT BY : SHRI NIKHIL PANJAN O R D E R PER D.K. AGARWAL, JM: THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER DATED 17.3.2010 PASSED BY THE LEARNED COMMISSIONER OF INC OME-TAX (APPEALS) FOR THE ASSESSMENT YEAR 2003-04. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF ENGINEERING DESIGN AND C ONSTRUCTION ACTIVITIES, FILED ITS RETURN DECLARING TOTAL LOSS OF ` 1,38,32,014/-. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE INCOME-TAX A CT, 1961 (THE ACT) ACCEPTING THE LOSS RETURNED. SUBSEQUENTLY, THE LEA RNED COMMISSIONER OF INCOME- TAX EXERCISING HIS JURISDICTION UNDER SECTION 263 O F THE ACT PASSED AN ORDER SETTING ASIDE THE ASSESSMENT TO BE MADE DENOVO. ACCORDINGL Y THE ASSESSING OFFICER PASSED A FRESH IMPUGNED ASSESSMENT ORDER DETERMININ G THE TOTAL INCOME AT ` 3,77,09,391/- VIDE ORDER DATED 29.12.2008 PASSED UN DER SECTION 143(3) READ WITH SECTION 263 OF THE ACT. AGAINST THE SAID ASSESSMEN T ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME-TA X (APPEALS). THE COMMISSIONER OF INCOME-TAX (APPEALS) FOLLOWING THE ORDER OF THE TRIBUNAL IN ITA ITA NO.4613/MUM/2010 SMT. SMITA V, MADLANI 2 NO. 3667/MUM/2008 DATED 29.10.2009, WHEREIN THE TR IBUNAL HAS HELD THAT THE ORDER OF THE COMMISSIONER OF INCOME-TAX WAS UNSUSTA INABLE IN LAW AND THEREFORE, SET ASIDE THE SAME, ANNULLED THE CONSEQUENTIAL ASSE SSMENT ORDER PASSED BY THE ASSESSING OFFICER AND ALLOWED THE APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT( A), THE REVENUE IS IN APPEAL BEFORE US TAKING THE FOLLOWING GROUNDS OF AP PEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN ANNULLING THE ORDER PASSED U/S.1 43(3) R.W.S.263 OF IT ACT BY ASSESSING OFFICER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) HAS FURTHER ERRED IN RELYING ON HONBLE I .T.A.TS ORDER ITA NO.3667/M/08 DATED 29.10.2009 AGAINST WHICH THE DEPARTMENT HAS PREFERRED APPEAL U/S.260A OF IT ACT BEFORE BOMBAY HIGH COURT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) HAS FURTHER ERRED IN RELYING ON DECISION OF HONBLE I.T.A.T WHO ERRED IN HOLDING THAT IN ORDER U/S.263 OF THE INCOME TAX THERE IS NO CATEGORICAL FINDING BY THE COMMISSI ONER OF INCOME-TAX THAT THE ORDER OF ASSESSING OFFICER IS E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE EVEN THOUGH THE COMMISSIONER OF INCOME-TAX HAS GIVEN A CATEGORICAL FINDING IN THE SHOW CAUSE NOTICE AND ORDER U/S.263 IS CONSEQUENTIA L TO THE SAME. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) HAS FURTHER ERRED IN RELYING ON DECISION OF HONBLE I.T.A.T WHO ERRED IN HOLDING THAT IN ORDER U/S.263 OF THE INCOME- TAX, THERE IS NO CATEGORICAL FINDING BY THE COMMISS IONER OF INCOME-TAX THAT THE ORDER OF ASSESSING OFFICER IS E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE EVEN THOUGH THE COMMISSIONER OF INCOME-TAX, VIDE POINT NO. 2 OF ORD ER U/S.263 OF THE INCOME TAX ACT HAS ENUMERATED THE REASONS FOR W HICH THE ORDER OF ASSESSING OFFICER WAS ERRONEOUS AND PREJUD ICIAL TO THE INTEREST OF REVENUE. 4. AT THE TIME OF HEARING, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT IN VIEW OF THE PLEA TAKEN IN THE GROUNDS OF A PPEAL, THE ORDER PASSED BY THE LEARNED CIT(A) BE SET ASIDE AND THAT OF THE ASSESSI NG OFFICER BE RESTORED. 5. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE A SSESSEE SUBMITS THAT SINCE THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX UNDER SECTION 263 OF THE ACT HAS BEEN CANCELLED BY THE TRIBUNAL, THEREFORE, THE CONSEQUENTIAL ITA NO.4613/MUM/2010 SMT. SMITA V, MADLANI 3 ORDER PASSED BY THE ASSESSING OFFICER DOES NOT SUR VIVE AND HENCE, THE ORDER PASSED BY THE LEARNED CIT(A) IN CANCELING THE SAME BE UPHELD. 6. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND MERIT IN THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT SINCE THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX UNDER SECTION 263 OF THE ACT HAS BEEN CA NCELLED BY THE TRIBUNAL AS UNSUSTAINABLE IN LAW VIDE ORDER DATED 29.10.2009 (S UPRA), THEREFORE, WE ARE OF THE VIEW THAT THE CONSEQUENTIAL ORDER PASSED BY THE ASS ESSING OFFICER IN VIEW OF THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME- TAX UNDER SECTION 263 OF THE ACT HAS NO LEGS TO STAND AND ACCORDINGLY WE ARE IN CLINED TO UPHOLD THE ORDER OF THE LEARNED CIT(A) IN ANNULLING THE SAME. THE GROUN DS TAKEN BY THE REVENUE ARE, THEREFORE, REJECTED. 7. IN THE RESULT, THE REVENUES APPEAL STANDS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 222 ND DAY OF JULY, 2011. SD. SD. (PRAMOD KUMAR) (D.K. AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED THE 22 ND JULY, 2011. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-9, MUMBAI. 4. THE CIT(A)-20, MUMBAI 5. THE DR F BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI