Income Tax Officer (TDS)-II, Kanpur V. The Addl District Magistrate, Kanpur

ITA 518/LKW/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2038 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 08-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SARAN SINGH F
• Keywords: Competent authority

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.518 TO 520/LKW/2013 A. YRS. 2005 - 06, 2006 - 07 & 2009 - 10 THE ADDL. DISTRICT MAGISTRATE, LAND ACQUISITION (AWAS), COLLECTORATE KANPUR NAGAR. TAN:KNPA01119G VS INCOME TAX OFFICER(TDS) - II, KANPUR. (RESPONDENT) (APPELLANT) SMT. MANJU THAKUR, D. R. APPELLANT BY SHRI SARAN SINGH, F.C.A. RESPONDENT BY 16/07/2015 DATE OF HEARING 31 /08/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. ALL THESE THREE APPEALS ARE FILED BY THE REVENUE AGAINST A COMMON ORDER OF LEARNED CIT (A) - II, KANPUR DATED 28/03/2013 FOR ASSESSMENT YEARS 2005 - 06, 2006 - 07 AND 2009 - 10. 2. THE GROUNDS RAISED BY THE REVENUE IN ALL THE THREE YEARS ARE IDENTICAL AND HENCE, WE REPRODUCE THE GROUNDS FROM I.T.A. NO.518/LKW/2013, WHICH ARE AS UNDER: 1. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THE CASES ARE BARRED BY LIMITATION FOR THE A.Y. 2005 - 06 & 2006 - 07 IN VIEW OF THE JUDGMENT OF HON'BLE CIT, DELHI XVII VS N.H.K. JAPAN BROADCASTING CORPORATION (2008) 172 TAXMAN 230 (DEI). HOWEVER, SECTION 201(3) OF THE INCOME TAX ACT 1961 WHICH WAS PROMULGATED BY THE FINANCE (NO.2) ACT 2009 W.E.F. 0 1 - 04 - 2010 WHICH ASK US TO COMPLETE ASSESSMENT ORDER FOR FINANCIAL YEAR COMMENCING ON OR BEFORE THE 1 ST DAY OF APRIL 2007 MAY 2 BE PASSED AT ANY TIME ON OR BEFORE THE 31 ST DAY OF MARCH 2011. 2. THE LD C1T(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE CASES FOR A.Y. 2005 - 06, 2006 - 07 AND 2009 - 10, INITIALLY HEARD BY THE DCIT(TDS), KANPUR AND FINAL ORDER WERE PASSED BY THE ITO(TDS) - II KANPUR, ARE UN - JURISDICTIONAL WITHOUT GIVING REASONABLE OPPORTUNITY TO THE DEPARTMENT FOR PROVIDING THE JURISDICTIONAL ASSI GNING ORDER PASSED BY CIT(TDS) & IGNORING THE FACT THAT THE ASSESSEE DID NOT OBJECT TO THE JURISDICTION OF AO WITHIN PRESCRIBED TIME LIMIT OF ONE MONTH FROM THE DATE OF NOTICE BY INCOME TAX OFFICER (TDS) - II, KANPUR. 3. LEARNED D.R. OF THE REVENUE SUPPORT ED THE ASSESSMENT ORDER. HE ALSO SUBMITTED THAT AS PER SUB SECTION (3) OF SECTION 201, THE ORDER U/S 201 CAN BE PASSED UP TO SEVEN YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH PAYMENT IS MADE OR CREDIT IS GIVEN. HE SUBMITTED THAT THEREFORE, THE ORDE R PASSED BY THE ASSESSING OFFICER IN THE PRESENT CASE FOR ALL THE THREE YEARS ON 14/03/2011 ARE NOT TIME BARRED BECAUSE EVEN FOR THE FIRST YEAR I.E. FINANCIAL YEAR 2004 - 05, THE PERIOD OF SEVEN YEARS EXPIRES ON 31/03/2012 AND THE ORDER IS PASSED ON 14/03/20 11 AND THEREFORE, THE SAME ARE WITHIN TIME. 3.1 HE ALSO SUBMITTED THAT AS PER THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. NHK JAPAN BROADCASTING CORPORATION [2008] 305 ITR 137 (DEL), COPY AVAILABLE ON PAGES 144 TO 147 OF THE PAPER BOOK , IT WAS HELD THAT ACTION MUST BE INITIATED BY THE COMPETENT AUTHORITY UNDER ACT WITHIN A PERIOD OF FOUR YEARS. HE FURTHER SUBMITTED THAT AS PER THE ORDER OF THE ASSESSING OFFICER FOR ALL THE THREE YEARS, THE ACTION WAS INITIATED BY ISSUING NOTICE U/S 20 1/201(1A) OF THE ACT ON 25/03/2010 AND THEREFORE, THE SAME IS WITHIN FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2005 - 06 AND LATER YEARS. HE ALSO SUBMITTED THAT IN THIS CASE, HON'BLE DELHI HIGH COURT HAS FOLLOWED A JUDGMEN T OF HON'BLE APEX COURT RENDERED IN THE CASE OF STATE OF PUNJAB VS. BHATINDA DISTRICT CO - OP. MILL (P.) 3 UNION LTD. [2007] 11 SCC 363 AND THEREFORE, THE PRESENT ORDERS ARE NOT TIME BARRED IN THE FACTS OF THE PRESENT CASE. 4. AS AGAINST THIS, LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST WE DEAL WITH GROUND NO. 2 TAKEN BY REVENUE BECAUSE WE FIND THAT IN ADDITION TO HOLDING THIS THAT THESE ORDERS PASSED BY THE ASSESSING OFFICER ARE TIME BARRED, THIS IS ALSO HELD BY LEARNED CIT(A) THAT THE SAME ARE WITHOUT JURISDICTION BECAUSE IT WAS THE CLAIM OF THE ASSESSEE BEFORE CIT(A) THAT FIRST NOTICE WAS ISSUED BY DCIT(TDS), KANPUR AND THEREAFTER, SECOND NOTICE AND FINAL ORDER IS PASSED BY INCOME T AX OFFICER (TDS), KANPUR AND INCOME TAX OFFICER(TDS) KANPUR OUGHT TO HAVE ASSUMED LAWFUL JURISDICTION THROUGH AN ORDER U/S 127 AND CIT(A) HAS FOLLOWED THE TRIBUNAL ORDER IN THE CASE OF PRACHI LEATHER (P) LTD. VS. ADDL. CIT, RANGE - VI IN I.T.A. NO.744/LKW/20 04 DATED 29/03/2010. LEARNED D.R. OF THE REVENUE COULD NOT SHOW US THAT HOW THIS TRIBUNAL DECISION RENDERED IN THE CASE OF PRACHI LEATHER (P) LTD. (SUPRA) IS NOT APPLICABLE IN THE PRESENT CASE. AS PER NOTICE DATED 25/03/2010 APPEARING ON PAGES 47 TO 48 O F THE PAPER BOOK, WE FIND THAT THIS NOTICE WAS ISSUED BY DCIT(TDS), KANPUR AND THE IMPUGNED ORDER U/S 201/201(1A) DATED 14/03/2011 BEING COMBINED ORDER FOR FINANCIAL YEAR 2004 - 05 TO 2008 - 09 WAS PASSED BY INCOME TAX OFFICER (TDS) - II, KANPUR. UNDER THESE FA CTS, WE FIND THAT THE ORDER PASSED BY INCOME TAX OFFICER IN THE PRESENT CASE AFTER ISSUE OF NOTICE BY DCIT(TDS), KANPUR IS NOT AS PER LAW IN THE ABSENCE OF ANY ORDER FOR TRANSFERRING THE JURISDICTION U/S 127 OF THE ACT AND THEREFORE, WE FIND NO MERIT IN GR OUND NO. 2 RAISED BY THE REVENUE SINCE THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL DECISION IN THE CASE OF PRACHI LEATHER (SUPRA) BECAUSE NO DIFFERENCE IN FACTS COULD BE POINTED OUT BY LEARNED DR OF THE REVENUE. HENCE, BY RESPECTFULLY F OLLOWING THIS TRIBUNAL DECISION, WE DECLINE TO 4 INTERFERE IN THE ORDER OF CIT(A) IN RESPECT OF GROUND NO. 2 OF THE REVENUES APPEAL. ACCORDINGLY, THIS GROUND OF REVENUE IS REJECTED. 6. IN VIEW OF OUR DECISION REGARDING GROUND NO. 2 OF THE REVENUES APPEAL , WE ARE OF THE CONSIDERED OPINION THAT NO ADJUDICATION IS CALLED FOR IN RESPECT OF GROUND NO. 1 BECAUSE THE SAME IS OF ACADEMIC INTEREST ONLY IN VIEW OF OUR DECISION REGARDING GROUND NO. 2 OF THE REVENUES APPEAL AND THEREFORE, IN OUR CONSIDERED OPINION, NO SEPARATE ADJUDICATION IS CALLED FOR IN RESPECT OF GROUND NO. 2 OF THE REVENUES APPEAL. WE HOLD ACCORDINGLY. 7. IN THE RESULT, ALL THE THREE APPEALS OF THE REVENUE STAND DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE C APTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 /08/2015 COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR