Assam Roofing Limited, Guwahati V. Income Tax Officer, Ward-3(1), Guwahati

ITA 474/GTY/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2669 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 23-12-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N T SHERPA
• Assessee Lawyers: S JHAJHARIA; SUJOY SE N ARS
• Keywords: Set aside
• Section: 143(3); 143(1); 143(2)

Judgement Text

1 ITA NO. 474/GAU/2019 ASSAM ROOFING LTD., AY 2017-18 IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH, VIRTUAL HEARING AT KOLKATA ( ) . . , . . , ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) &SHRI A. T. VARKEY, JM] I.T.A. NO. 474/GAU/2019 ASSESSMENT YEAR: 2017-18 ASSAM ROOFING LTD., GUWAHATI (PAN: AABCA7734K) VS. INCOME TAX OFFICER, WARD-3(1), GUWAHATI APPELLANT RESPONDENT DATE OF HEARING 21.10.2021 DATE OF PRONOUNCEMENT 28.10.2021 FOR THE APPELLANT SHRI S, JHAJHARIA & SHRI SUJOY SE N, ARS FOR THE RESPONDENT SHRI N. T. SHERPA, JCIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-2, GUWAHATI DATED 30.10.2019 FOR AY 2017-18. 2. AT THE OUTSET, THE LD. AR OF THE ASSESSEE SHRI S . JHAJHARIA SUBMITTED THAT THIS IS AN INTERESTING CASE WHEREIN INITIALLY THE ASSESSEES R ETURN OF INCOME WAS PROCESSED BY THE CPC, BANGALURU AND INTIMATION WAS PASSED U/S. 143(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 16.03.2019 WHEREIN ADJUSTMENTS WERE MADE VIZ. DISALLOWANCE OF DEDUCTION CLAIMED U/S. 80IE OF THE ACT OF RS.10, 65,90,015/- BECAUSE OF BELATED FILING OF RETURN OF INCOME AND ALSO DID NOT ALLOW RS.9,376/- WHICH WAS DEPOSITED IN RESPECT OF THE ESI & PF ON THE GROUND OF LATE DEPOSIT AS PER THE R ESPECTIVE ACT (ESI & PF ACT). ACCORDING TO THE LD. AR, THE ASSESSEE BEING AGGRIEV ED BY THE AFORESAID ACTION OF CPC DATED 16.03.2019, HAD FILED AN APPEAL BEFORE THE LD. CIT( A) WHICH WAS DISMISSED EX PARTE FOR NON-PROSECUTION ON THE PART OF THE ASSESSEE BY THIS IMPUGNED ORDER. 2 ITA NO. 474/GAU/2019 ASSAM ROOFING LTD., AY 2017-18 3. HOWEVER, ACCORDING TO THE LD. AR, MEANWHILE THER E WAS A DEVELOPMENT WHICH TOOK PLACE WHEREIN THE JURISDICTIONAL AO OF THE ASSESSEE I.E. ITO, WARD-3(1), GAUHATI HAD ISSUED NOTICE U/S. 143(2) OF THE ACT CONVEYING HIS DESIRE TO SCRUTINIZE THE RETURN FILED BY THE ASSESSEE ORIGINALLY ON 15.09.2017 DECLARING INCOME OF RS.10,67,69,691/- AS GROSS TOTAL INCOME WHEREIN IT CLAIMED DEDUCTION U/S. 80IE OF T HE ACT OF RS.10,65,80,638/-. HENCE, DECLARED RS.1,89,050/- AS NET INCOME. THE AO HAD S ELECTED THE CASE OF ASSESSEE FOR SCRUTINY AS PER CASS, INTER ALIA , ON DEDUCTION U/S. 80IE OF THE ACT ALSO. THEREAFT ER, THE AO HAD PASSED THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT WHEREIN THE AO WAS PLEASED TO ALLOW THE CLAIM OF 80IE DEDUCTION TO THE TUNE OF RS.10,65,80, 638/- AND DID NOT DISALLOW ANY DISALLOWANCE IN RESPECT OF THE PF & ESI DEPOSITED TO THE TUNE OF RS.9,306/-. THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT WAS PASSED ON 14.10.2019 WHICH IS SEEN PLACED AT PAGE 125 OF THE PAPER BOOK. AGAINST THIS ACTION OF THE AO, THE ASSESSEE NOW HAS NO GRIEVANCE AND THEREFORE, IT NEED NOT HAVE TO FILE A NY APPEAL BEFORE THE LD. CIT(A). BE THAT AS IT MAY BE, COMING BACK TO THE IMPUGNED ACTION O F THE LD. CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE EX PARTE AGAINST THE ACTION/INTIMAT ION OF CPC DATED 16.03.2019, ACCORDING TO THE LD. AR, SINCE THE ASSESSEE DID NOT RECEIVE ANY NOTICE FROM THE LD. CIT(A) IT COULD NOT REPRESENT ITSELF BEFORE THE LD. CIT(A) WHO HAS PASS ED THE IMPUGNED FIRST APPELLATE ORDER EX PARTE WITHOUT GOING INTO THE MERITS OF THE CASE. A CCORDING TO THE LD. AR, IN THE LIGHT OF THE DEVELOPMENT DISCUSSED (SUPRA) AFTER THE CPC HAD PAS SED THE INTIMATION U/S. 143(1) OF THE ACT DATED 16.03.2019, THE EFFECT OF WHICH IS THAT A DJUSTMENTS MADE IN RESPECT OF SECTION 80IE & ESI & PF ACT GETS MERGED WITH THE AOS SCRU TINY ORDER U/S. 143(3) OF THE ACT. FOR THAT PROPOSITION HE RELIED ON THE DECISION OF THE H ONBLE SUPREME COURT IN THE CASE OF HINDUSTHAN AERONOTICAL LTD. REPORTED IN 243 ITR 808 . THEREFORE, HE PRAYS THAT SUITABLE DIRECTION MAY BE GIVEN TO THE AUTHORITIES OR THERE MAY BE CONFUSION ON THIS ISSUE. 4. IN THE LIGHT OF THE DEVELOPMENT DISCUSSED (SUP RA) WHICH HAS TAKEN PLACE AFTER THE CPC HAS PASSED THE ORDER DATED 16.03.2019, IT HAS B EEN BROUGHT TO OUR NOTICE THAT THE JURISDICTIONAL AO/ITO, WARD-3(5), GAUHATI HAD PASSE D THE SCRUTINY ASSESSMENT U/S. 143(3) OF THE ACT DATED 14.10.2019 AND THEREFORE, ACCORDIN G TO ASSESSEE, THE CPC ADJUSTMENT EX 3 ITA NO. 474/GAU/2019 ASSAM ROOFING LTD., AY 2017-18 FACIE DOES NOT SURVIVE IN ANY CASE. IN THE LIGHT O F THE AFORESAID DISCUSSION WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND RESTORE THE AP PEAL BEFORE THE LD. CIT(A) TO DECIDE AFRESH AS TO THE CONTENTION OF THE ASSESSEE AS TO W HETHER THE ORDER OF THE CPC HAS MERGED INTO ASSESSMENT ORDER PASSED BY THE AO DATED 14.10 .2019 U/S. 143(3) OF THE ACT. THE LD. AR IS DIRECTED TO FILE WRITTEN SUBMISSION AND FILE COPY OF THE ASSESSMENT ORDER AND OTHER DOCUMENTS NECESSARY FOR THE DISPOSAL OF THE APPEAL AND THE LD CIT(A) TO ADJUDICATE THE ISSUE IN ACCORDANCE TO LAW. APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER, 2021 SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED: 28.10.2021 JD(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. ASSAM ROOFING LTD., C/O M/S. SA LARPURIA JAJODIA & CO., 7, C. R. AVENUE, 3 RD FLOOR, KOLKATA-700 072. 2 RESPONDENT ITO, WARD-3(1), GUWAHATI 3. 4. 5. CIT(A), GUWAHATI-2, GUWAHATI . CIT- DR, ITAT, GUWAHATI / TRUE COPY, BY ORDER, SENIOR PVT. SECY.