Mayur Sahakari Kukut Palan Socy.Ltd., V. ITO,

ITA 485/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3407 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 24-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R KAUSHAL
• Keywords: Principle of natural justice
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER I.T.A. NO. 485/PN/2009 ( A.Y. 2004-05 ) MAYUR SAHAKARI KUKUT PALAN SOCIETY LTD., APP ELLANT A/P SHIVNAGAR TAL. KARAD, DIST. SATARA PAN AAAAM0474D VS. COMMISSIONER OF INCOME-TAX III, PUNE RE SPONDENT APPELLANT BY: SHRI M.K. KULKARNI RESPONDENT BY: SHRI R. KAUSHAL ORDER PER D. KARUNAKARA RAO, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE C.I.T. III, PUNE DT. 20.3.2009 FOR THE A.Y. 2004-05. FOLLOWING GROUNDS ARE RAISED BY THE ASSESSEE : 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. C.I.T III, PUNE WAS NOT JUSTIFIED I N INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT TREATING T HE ASSESSMENT ORDER AS AN ORDER ERRONEOUS AND PREJUDIC IAL TO THE INTERESTS OF REVENUE AND SETTING ASIDE THE SAME WHEN IT WAS DEMONSTRATED BEFORE HIM THE ORDER WAS NOT ERRON EOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE OR DER OF THE LD. C.I.T. PASSED UNDER SECTION 263 BE QUASHED. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. C.I.T. PASSED THE ORDER U/S 263 WIT HOUT AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE. THE MATTER WAS POSTED FOR HEARING ON 09-03-2009 AND WHE N ATTENDED, IT WAS REVEALED THAT HE WAS NOT AVAILABLE IN THE OFFICE. THOUGH WRITTEN SUBMISSIONS WERE SUBMITTED O N 09- 03-2009 THE SAME HAVE NOT BEEN PROPERLY CONSIDERED. THIS IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND T HE ORDER U/S. 263 HAS BECOME UNSUSTAINABLE AND IT BE QUASHED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW IF THE ALTERNATIVE SUBMISSIONS HAD BEEN CONS IDERED PAGE 2 OF 3 ITA NO.485/PN/2009 MAYUR SAHAKARI KUKUT PALAN SOCIETY LTD.,., A.Y. 2004-05 WHEREIN IT WAS SUBMITTED THAT THE ENTIRE INCOME WAS EXEMPT UNDER SECTION 80-P(2)(D) OF THE ACT WHICH EXEMPTION WAS NOT CONSIDERED BY THE ASSESSING OFFICER AS THE ASS ESSMENT RESULTED INTO NEGATIVE INCOME. THE LD. C.I.T. OUGH T TO HAVE CONSIDERED THIS POSITION AND HELD THAT THERE WAS NO LOSS OF REVENUE THE ORDER COULD NOT BE TERMED ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE AND THEREFO RE THE ORDER U/S. 263 HAS BECOME PERVERSE AND WITHOUT JURI SDICTION AND THE SAME BE QUASHED. 2. AT THE VERY OUTSET, THE LD COUNSEL FOR THE ASSES SEE MENTIONED THAT THIS APPEAL IS AGAINST THE ORDER OF THE C.I.T U/S. 263 OF THE INCOME TAX ACT. FURTHER, HE MENTIONED T HAT AT THE END OF THE FRESH ASSESSMENT PROCEEDINGS, THE A.O HA S NOT MADE ANY ADDITION AND THE TOTAL INCOME WAS DETERMINED AT NIL AND THIS ORDER HAS BECOME FINAL IN ALL RESPECTS. THUS, HE M ADE OUT A CASE THAT THAT THE ORDER OF THE ASSESSING OFFICER IS NO T PREJUDICIAL TO THE INTEREST OF THE REVENUE, THEREFORE, THE C.I.T H AS WRONGLY ASSUMED JURISDICTION U/S. 263 OF THE INCOME TAX ACT . C.I.T (D.R.) FOR THE REVENUE RELIED ON THE ORDER OF THE C.I.T. 3. WE HAVE CONSIDERED THE FACTS OF THE CASE AND FOU ND THAT THE C.I.T ASSUMED JURISDICTION ON THE PRESUMPTION THAT THE A.O ORIGINALLY ALLOWED SET OFF OF THE BROUGHT FORWARD L OSSES RELATABLE TO THE A.Y. 1996-97. WE FIND THAT THERE IS NOTHING PREJUDICIAL TO THE INTEREST OF REVENUE AND THE C.I.T. HAS RESUMED JURISDICTION ERRONEOUSLY. THE LD D.R. DID NOT MAKE ANY CASE TO D EMONSTRATE THAT THERE IS A LESS OF REVENUE BY ANY MEANS. THERE FORE, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED . 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THE 13TH AUGUST 2010. SD/- SD/- ( SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE DATED THE 13TH AUGUST 2010 US PAGE 3 OF 3 ITA NO.485/PN/2009 MAYUR SAHAKARI KUKUT PALAN SOCIETY LTD.,., A.Y. 2004-05 COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT- III, PUNE 4. THE D.R, A BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE