DCIT 8(2), MUMBAI V. HOTEL CORPORATION OF INDIA LTD, MUMBAI

ITA 4687/MUM/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9262 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 10-02-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 14-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMINDER
• Assessee Lawyers: D T SHUKLA
• Keywords: Rectification of order
• Section: 147; 154

Judgement Text

, H IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO.4687/M/2013 ( / ASSESSMENT YEAR; 2003-04) DCIT 8(2) R.NO.209, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. RD. MUMBAI- 400020 / VS. M/S. HOTEL CORPORATION OF INDIA LTD., 1 ST FLOOR, TRANSPORT ANNEXURE BUILDING, AIR INDIA COMPLEX, OLD AIRPORT, SANTACRUZ (EAST) MUMBAI 400 029 PAN: AAACH2768R ( / APPELLANT) ( /RESPONDENT) REVENUE BY : SMT. PARMINDER, (DR) RESPONDENT BY : SMT. D.T. SHUKLA (AR) / DATE OF HEARING : 11.02.2015 / DATE OF PRONOUNCEMENT : 11. .03 .2015 ! / O R D E R PER R.C.SHARMA, A.M . : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF LEARNED CIT(A) DATED 15.11.2012 FOR THE ASSESSMENT YEAR 20 03-04, IN THE MATTER OF ORDER PASSED U/S.154 OF THE I.T. ACT. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND PERUSED MA TERIAL ON RECORD. THE FACTS IN BRIEF ARE THAT BY REOPENING THE ASSESSMENT FOR A.Y. 2003-04, THE AO VIDE ORDER DATED 05.12.2007 MADE CERTAIN ADDITIONS. IN THE APPEAL FILED BEFORE THE TRIBUNAL, THE TRIBUNAL VIDE ITS ORDER DATED 28 TH MARCH 2012 IN ITA NO.7246/MUM/2008 FOR THE A.Y.2003-04 HELD THAT REOP ENING OF ASSESSMENT WAS INVALID. HOWEVER, THE AO TRIED TO RECTIFY THE O RDER PASSED U/S.143(3) READ ITA NO.4687/M/2013 2 WITH SECTION 147 OF THE ACT 1961 DATED 5 TH DECEMBER, 2007, U/S 154 ON THE PLEA THAT THERE WAS AN APPARENT MISTAKE WITH REGARD TO BUSINESS LOSS CARRIED FORWARD ON ACCOUNT OF SLUMP SALE/DEMERGER. SINCE TH E ORIGINAL ORDER PASSED U/S.143(3) READ WITH SECTION 147 DATED 5 TH DECEMBER 2007 HAVE ALREADY BEEN CANCELLED BY TRIBUNAL ON THE GROUND OF REOPENING IT SELF, THE SAME NO MORE SURVIVES. SINCE THE ORIGINAL REASSESSMENT ORDER ITS ELF DOES NOT SURVIVE, THERE IS NO QUESTION FOR RECTIFYING SUCH ORDER BY RECOURSE O F SECTION 154. THUS, THE ORDER PASSED U/S.154 HAS NO LEGS TO STAND, INSOFAR AS THE ORIGINAL ORDER ITSELF HAS BEEN SET ASIDE BY TRIBUNAL HOLDING THAT REASSESSMEN T WAS NOT VALID. 3. THE CIT(A) FURTHER OBSERVED THAT RECTIFICATION D ONE BY THE AO RECTIFICATION WAS NOT FOR ANY ARITHMETIC ERROR BUT ON ISSUES WHICH ARE DEBATABLE AND HENCE ON THAT GROUND ALSO THE RECTIFICATION ORD ER PASSED U/S 154 DOES NOT SURVIVE. WE ALSO FOUND THAT THE ISSUES WERE NOT STR AIGHT FORWARD BUT HAVE TO BE ANALYSED AND INTERPRETED TO ARRIVE AT A CONCLUSION ON WHICH TWO VIEWS ARE POSSIBLE. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER. THE CIT(A) HOLDING THAT RECTIFICATION ORDER PASSED BY THE AO D OES NOT STAND. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.03. .2015 . ! ' #$ % & 11.03.2015 , - SD/- SD/- (SANJAY GARG) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER # ./MUMBAI ; % / DATED 11.3 .2015 * PATEL ITA NO.4687/M/2013 3 ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. C ( ) / THE CIT(A) - 4. C / CIT 5. JK, LLMN, MN, # . / THE DR CONCERNED BENCH, 6. ,TU V / GUARD FILE. ! 6 / BY ORDER, J L //TRUE COPY// 8/69 : ( DY./ASSTT. REGISTRAR) , # . / ITAT, MUMBAI