ATUL A SANGHVI, MUMBAI V. ASST CIT CEN CIR 11, MUMBAI

ITA 4704/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9469 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-11-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 10-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SURINDER JIT SINGH
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO. 4704/MUM/2011 (ASSESSMENT YEAR: 2007-08) ITA NOS. 4721 TO 4726/MUM/2011 (ASSESSMENT YEARS: 2001-02 TO 2006-07) ATUL SANGHVI B-1607, SHANKAR SETH PALACE, 16 TH FLOOR, NANA CHOWK, MUMBAI -400 027 [PAN: AHZPS 2788 P] VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 11, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : MS. VINITA SHAH RESPONDENT BY : SHRI SURINDER JIT SINGH, CIT-DR DATE OF HEARING: 12.11.2012 DATE OF PRONOUNCEMENT: 05.12.2012 O R D E R PER BENCH : THIS IS A SET OF SEVEN APPEALS BY THE ASSESSEE ARIS ING OUT OF THE COMMON ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-37, MUM BAI (CIT(A) FOR SHORT) DATED 30.03.2011, DISMISSING THE ASSESSEES APPEALS CONTESTING ITS ASSESSMENTS U/S.153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE RELEVANT YEARS, BEING ASSESSMENT YEARS (A.YS.) 2001 -02 TO 2007-08, VIDE A COMMON ORDER DATED 31.12.2008 AS NOT MAINTAINABLE. 2.1 AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. AR, THE COUNSEL FOR THE ASSESSEE, THAT THE ISSUE ARISING FOR ADJUDICATION IN THESE AP PEALS IS COVERED BY THE DECISION BY THE TRIBUNAL IN THE CASE OF DILIP SHAH VS. ASST. CIT (VIDE ORDER IN ITA NOS. 4714 TO ATUL SANGHVI V. ACIT, MUMBAI ITA NOS. 4704, 4721-26/MUM/2011 (AYS 2001-02 TO 200 7-08) 2 4720/MUM/2011 DATED 27.06.2012), PLACING A COPY OF THE SAME ON RECORD. THE TRIBUNAL HAD, UNDER SIMILAR CIRCUMSTANCES, RESTORED THE MATTER BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY TO DECIDE THE ISSUES BEIN G AGITATED ON MERITS, ADVERTING TO THE RELEVANT PART OF ITS ORDER, WHICH READS AS UNDER: 4. AGGRIEVED, ASSESSEE PREFERRED APPEALS BEFORE TH E APPELLATE TRIBUNAL. THE LEARNED COUNSEL SUBMITTED BEFORE US THAT CONSEQUENT TO THE ORDER PASSED UNDER SECTION 263 OF THE ACT FRESH ASSESSMENTS ORDERS WER E PASSED BY THE AO, WHICH WERE ALSO CHALLENGED BEFORE THE CIT(A). IN THE EVEN T OF QUASHING THE REVISION PROCEEDINGS THE ORIGINAL ASSESSMENT ORDERS STAND RE STORED AND CONSEQUENTLY THE ADDITIONAL INCOME ASSESSED THEREIN STANDS CONFI RMED. IF THESE APPEALS ARE TREATED AS NOT MAINTAINABLE, THE ASSESSEE WOULD HAV E NO RIGHT TO FILE FURTHER APPEALS AND IN THE EVENT OF RESTORING THE ORIGINAL ASSESSMENTS THE ASSESSEE WOULD BE DENIED THE OPPORTUNITY OF FILING APPEALS A T THAT STAGE AND HENCE THE ONLY LEGAL COURSE IN THE CIRCUMSTANCE IS TO RESTORE THE MATTER TO THE FILE OF THE CIT(A) TO DECIDE THE MATTER ON MERITS, I.E. TO CONS IDER THE CORRECTNESS OF THE ADDITIONS MADE IN THE ORDERS PASSED UNDER SECTION 1 53A/153B OF THE ACT. THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE BEI NG THE SAME, A DECISION ALONG THE SAME LINES WAS PRAYED FOR. ON BEING QUERIED BY THE BENCH IF THE ORDER/S U/S. 263 IN THE INSTANT CASE STANDS ACCEPTED BY THE ASSESSEE, HE CO NFIRMED TO IT BEING CHALLENGED IN APPEAL BEFORE THE TRIBUNAL, WHICH APPEAL THOUGH IS OUTSTANDING FOR DISPOSAL AS ON DATE. 2.2 THE LD. DR, ON THE OTHER HAND, WOULD SUBMIT T HAT EVEN AS THE REVENUE APPRECIATES THE CONCERN UNDERLYING THE TRIBUNALS D ECISION IN DIRECTING THE FIRST APPELLATE AUTHORITY TO DECIDE THE ASSESSEES APPEAL S ON MERITS IN THE CITED CASE, I.E., TO PROTECT THE INTEREST OF THE ASSESSEE, THE SAME HAS TO BE WITHIN THE PARAMETERS LAID DOWN BY THE LAW. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. 3.1 THE PRIMARY AND RELEVANT FACTS, WHICH ARE TH E SAME AS IN THE CASE OF DILIP SHAH V. ACIT (SUPRA), WITH REFERENCE TO WHICH THE LD. AR ARGUES THE INSTANT CASE, ARE NOT IN DISPUTE. AS WOULD BE APPARENT FROM THE OPERATIVE PA RT OF THE SAID ORDER, REPRODUCED HEREINABOVE, THE TRIBUNAL DECIDED IN THE MANNER IT DID ON THE PREMISE THAT PENDING A DECISION ON THE MERITS OF THE REVISION ORDER CANCEL LING THE ASSESSMENTS, CONSIDERING ATUL SANGHVI V. ACIT, MUMBAI ITA NOS. 4704, 4721-26/MUM/2011 (AYS 2001-02 TO 200 7-08) 3 THE ASSESSEES APPEALS THEREAGAINST AS NOT MAINTAIN ABLE, AS HELD BY THE FIRST APPELLATE AUTHORITY, WOULD OPERATE TO THE PREJUDICE THE ASSES SEE IF IT WERE TO SUCCEED IN ITS CHALLENGE TO THE REVISION ORDER INASMUCH AS THE ASS ESSMENTS, SINCE CANCELLED, WOULD STAND TO BE RESTORED, WHILE THE ASSESSEES ACTION I N APPEALING THEREAGAINST ON MERITS WOULD STAND BARRED BY TIME. WE ARE IN FULL AGREEMEN T WITH THE SAID PREMISES, WHICH CAN BE SAID TO REPRESENT THE RATIO DECENDI OF THE SAID DECISION. THE PROPER COURSE UNDER THE CIRCUMSTANCES WOULD BE TO PREVENT SUCH A PREJUD ICE WERE SUCH AN EVENTUALITY TO ARISE IN FUTURE. HOWEVER, THAT MAY NOT NECESSARILY IMPLY A REQUIREMENT TO DECIDE THE ASSESSEES APPEALS ON MERITS BY THE FIRST APPELLATE AUTHORITY, NEED OR OCCASION FOR WHICH WOULD ARISE ONLY WHERE THE ASSESSEES IMPUGNE D ASSESSMENT/S, SINCE SET ASIDE, STAND RESTORED BY ACCEPTING HIS CHALLENGE TO THE RE VISION ORDER, AND WHICH IS NOT CERTAIN, SO THAT IT MAY NEVER ARISE, RESULTING IN H IS DECISION ON MERITS BECOMING FUTILE OR UNFRUCTUOUS. RESERVING THE ASSESSEES STATUTORY RIGHT TO CONTEST ITS ASSESSMENT/S UNDER THE APPELLATE PROCEDURE, WHICH IS WHAT WE UND ERSTAND, AS ALSO AFORE-STATED, TO BE THE ALSO INTENT AND PURPORT OF THE TRIBUNALS ORDER IN DILIP SHAH V. ACIT (SUPRA), WOULD IN OUR VIEW PRESENT A REASONABLE AND EQUITABLE COUR SE UNDER THE CIRCUMSTANCES. 3.2 THE ABOVE COURSE, BESIDES BEING IN CONFORMI TY WITH THAT BY THE TRIBUNAL IN THE CITED CASE, I.E., IN PRINCIPLE, WOULD ALSO BE IN CO NSONANCE WITH LAW INASMUCH AS THE ASSESSMENTS IMPUGNED IN THE INSTANT APPEALS STAND S INCE SET ASIDE BY THE REVISION ORDER, WHICH HOLDS AS ON DATE, SO THAT THE ACTION O F THE LD. CIT(A) IN DISMISSING THE SAME AS NOT MAINTAINABLE CANNOT BE FAULTED WITH. TH E EXCLUSION OF THE JURISDICTION OF THE ADMINISTRATIVE COMMISSIONER QUA AN ASSESSMENT, IT NEEDS TO BE BORNE IN MIND, IS ONLY WHERE THE SAME STANDS MODIFIED IN APPEAL, SO T HAT IT STANDS MERGED WITH THE APPELLATE ORDER, AND THEN, AGAIN, ONLY TO THAT EXTE NT (REFER EXPLANATION (C) TO S. 263(1)). NO APPELLATE ORDER HAD ADMITTEDLY BEEN PASSED BY 13 /1/2011, I.E., ON WHICH DATE THE REVISIONARY AUTHORITY ISSUED THE SHOW CAUSE TO THE ASSESSEE IN THE INSTANT CASE. ATUL SANGHVI V. ACIT, MUMBAI ITA NOS. 4704, 4721-26/MUM/2011 (AYS 2001-02 TO 200 7-08) 4 3.3 UNDER THE CIRCUMSTANCES, WE ONLY CONSIDER IT FIT AND PROPER TO DISMISS THE INSTANT APPEALS BY THE ASSESSEE, SUBJECT TO THE CONDITION T HAT IN CASE THE APPELLANT, WHO HAS ADMITTEDLY ALSO CHALLENGED THE SECTION 263 ORDERS/S BEFORE THE TRIBUNAL, IS SUCCESSFUL IN HIS CHALLENGE, SO THAT THE IMPUGNED ASSESSMENT/S ST ANDS RESTORED/REVIVED, HE SHALL BE AT LIBERTY TO PURSUE HIS APPEAL/S BEFORE THE FIRST APP ELLATE AUTHORITY, AND WHO SHALL, IN THAT CASE, DECIDE THE SAME ON MERITS, I.E., IN ACCORDANC E WITH LAW, AND AFTER AFFORDING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THAT IS, THE ASSESSEES APPEALS BEFORE THE FIRST APPELLATE AUTHORITY CONTESTING ITS SAID A SSESSMENTS WOULD ALSO STAND CONSEQUENTIALLY REVIVED WHERE THE ASSESSEE INTENDS TO PROSECUTE THE SAME. FURTHER, THE SAME HAVING BEEN FILED BEFORE THE FIRST APPELLATE A UTHORITY IN THE FIRST INSTANCE IN TIME, NO QUESTION OR ISSUE WITH REGARD TO THE SAME BEING DELAYED, WOULD, IN THAT CASE, ENSUE OR ARISE. SUBJECT TO THE FOREGOING WE CONFIRM THE I MPUGNED ORDER. 3.4 WE MAY, BEFORE PARTING WITH THE ORDER, FURTHER CLARIFY THAT IN DECIDING IN THE MANNER AFORE-STATED, WE HAVE PRESUMED THAT THE MATT ER/ISSUE/S SUBJECT TO ADJUDICATION, I.E., ON MERITS, BY BOTH THE LD. CIT(A) AND THE REV ISIONARY AUTHORITY, IS THE SAME, SO THAT THE ASSUMPTION OF JURISDICTION IN ITS RESPECT BY ONLY EITHER AUTHORITY IS MAINTAINABLE IN LAW. THE BASIS OF OUR SAID UNDERSTA NDING; THE REVISIONARY ORDER BEING NOT ON RECORD, IS THE ORDER BY THE TRIBUNAL IN THE CASE OF DILIP SHAH V. ACIT (SUPRA) RELIED UPON BY THE ASSESSEE, AS WELL AS THE ARGUMEN TS ADVANCED BY THE PARTIES BEFORE US DURING THE HEARING, WITH THE ASSESSEE ALSO NOT RAIS ING ANY ISSUE IN THIS REGARD BEFORE THE FIRST APPELLATE AUTHORITY. WE DECIDE ACCORDINGL Y. 4. IN THE RESULT, ALL THE SEVEN APPEALS BY TH E ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF DECEMBER, 2012 SD/- (B.R. MITTAL) JUDICIAL MEMBER SD/- (SANJAY ARORA) ACCOUTANT MEMBER MUMBAI, DATE: 05/12/2012 ATUL SANGHVI V. ACIT, MUMBAI ITA NOS. 4704, 4721-26/MUM/2011 (AYS 2001-02 TO 200 7-08) 5 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)- 37, MUMBAI. 4) THE D.R. A BENCH, MUMBAI. 5) COPY TO GUARD FILE. BY ORDER ASSTT. REGISTRAR I.T.A.T., MUMBAI RASIKA