ACIT 21(2), MUMBAI V. SMT.MITHAALI S JOSHI, MUMBAI

ITA 5608/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2439 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 04-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G PANSARI
• Assessee Lawyers: CHAITEE LONDHEAR
• Keywords: Reason to believe; Reassessment proceedings; TDS
• Section: 147; 143(3)

Judgement Text

AAYAK AAYAK AAYAK AAYAKR APILAIYA AIQ R APILAIYA AIQ R APILAIYA AIQ R APILAIYA AIQAKRNA N AKRNA N AKRNA N AKRNA NYAAYAPIZ YAAYAPIZ YAAYAPIZ YAAYAPIZ MAMUBA[ MAMUBA[ MAMUBA[ MAMUBA[- -- - MAO MAOMAO MAO. .. . IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI BEFORE SRI MAHAVIR SINGH, JM AND SRI MANOJ KUMAR A GGARWAL, AM AAYAKR APILA SA AAYAKR APILA SA AAYAKR APILA SA AAYAKR APILA SAM MM M . / ITA NO.5608 /MUM/2017 ( INAQA-ARNA BAYA- / ASSESSMENT YEAR 2010-11) ACIT, 21(2), MUMBAI. VS. SMT MITHAALI S JOSHI, (PROP. M/S. KAARMIC MOOVE), A-2, GROUND FLOOR, ROSE BLOSSM SOCIETY, MUMBAI .-400016 ( APILAAQA APILAAQA APILAAQA APILAAQAI II I - -- - / APPELLANT) .. ( P` P`P` P`%YAQAA %YAQAA %YAQAA %YAQAAI II I- -- - / RESPONDENT) PAN NO. AADCM 9153 E REVENUE BY : SHRI D.G.PANSARI, SR. D.R. ASSESSEE BY : MS CHAITEE LONDHE,AR DATE OF HEARING: 12.3.2019 DATE OF PRONOUNCEMENT : 12-03- 2019 AADOSA AADOSA AADOSA AADOSA / O R D E R PER MAHAVIR SINGH, JM: THIS APPEAL BY THE REVENUE IS ARISING OUT OF THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-33, MUMBAI [IN SHORT CIT(A)], IN APPEAL NO. CIT(A)-33/RANGE-21/304/2015-16 DATED 16. 6.2017. THE ASSESSMENT WAS FRAMED BY THE ACIT 21(2) MUMBAI FOR THE A.Y. 2010-11 VIDE ORDER DATED 31.3.2013 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2 ITA NO.5608/MUM/2017 ASSESSMENT YEAR 2010-11 2. THE ONLY ISSUE IN THIS APPEAL OF THE REVENUE IS AGAINST THE ORDER OF THE CIT(A) HOLDING THE REASSESSMENT AS VOI D. FOR THIS, THE REVENUE HAS RAISED THE FOLLOWING GROUND: ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) HAS ERRED IN TREATING THE REASSESSMENT AS VOID WITHOUT CONSIDERING THE EXPLANATION 3 TO SECTION 147 OF THE I.T.ACT, 1961. 3. BRIEFLY STATED THE FACTS ARE THAT IN THIS CASE, THE ASSESSING OFFICER RECEIVED INFORMATION ON FINANCIAL ACTIVITIE S RELATING TO THE ASSESSEE THROUGH NMS DATA. AS PER THE ASSESSING OF FICER, THE ASSESSEE HAD NOT FILED INCOME TAX RETURN FOR THE AS SESSMENT YEAR 201-11 UNDER PAN NO.AADCM 9153 E. CONSEQUENTLY, TH E ASSESSING OFFICER RECORDED THE FOLLOWING REASONS FO R REOPENING OF THE ASSESSMENT: IN THIS CASE, THIS OFFICE IS IN RECEIPT OF THE FOL LOWING INFORMATION THROUGH NMS DATA. THE DETAILS OF THE IN FORMATION ARE AS UNDER: SL.NO. F.Y. INFORMATION CODE INFORMATION DESCRIPTION 1. 2009-10 TDS-94J TDS-RETURN- FEES FOR PROFESSIONAL OR TECHNICAL SERVICES (SEC.194J) ON VERIFICATION, IT IS SEEN THAT NO RETURN OF INCOM E HAS BEEN FILED FOR A.Y.210-11 BY THE ASSESSEE WHICH IS INDIC ATIVE OF THE FACT THAT THE ASSESSEE HAS TRIED TO SUPPRESS THE SO URCE OF THE SAID PAYMENT. SINCE THERE IS NO RETURN OF INCOME F ILED, I HAVE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMEN T THEREBY CAUSING A DETRIMENTAL LOSS OF REVENUE. 4. THE ASSESSING OFFICER NOTED THAT IN RESPONSE TO NOTICE UNDER SECTION.148 OF THE ACT, THE ASSESSEE FILED RETURN O F INCOME UNDER PAN NO.AADCM 9153 E TILL ASSESSMENT YEAR 2009-10, B UT SINCE THE PAN HAD STATUS CHARACTER C FOR COMPANY INSTEAD OF P FOR INDIVIDUAL, SHE APPLIED FOR NEW PAN AGAINST WHICH S HE GOT NEW PAN AS AHXPJ 9223 A AND FOR THE RELEVANT ASSESSMENT YEA R 2010-11, 3 ITA NO.5608/MUM/2017 ASSESSMENT YEAR 2010-11 SHE FILED ITS RETURN OF INCOME UNDER HER NEW PAN. ACCORDINGLY, THE RETURN OF INCOME OF 19,70,701/- WAS FILED AND RETURNED AND RETURNED INCOME WAS ACCEPTED, APART FROM THAT CERT AIN DISALLOWANCES WERE MADE. ACCORDINGLY, TOTAL INCOME WAS ASSESSED AT 90,34610/-. 5. AGGRIEVED, THE ASSESSEE CHALLENGED THE REOPENIN G OF ASSESSMENT BEFORE THE CIT(A) AND THE CIT(A) QUASHED THE REASSESSMENT PROCEEDINGS AS VOID FOR THE REASON THA T IT IS VERY MUCH AVAILABLE ON RECORD THAT MUCH BEFORE THE NOTIC E UNDER SECTION.148 OF THE ACT BEING ISSUED ON 17.2.2014, R EGULAR SCRUTINY ASSESSMENT IN THIS CASE WAS COMPLETED ON 7.3.2013 F OR THE SAME ASSESSMENT YEAR I.E. 2010-11 BY THE ERSTWHILE ITO, WARD 18(3)(3), MUMBAI ACCEPTING THE RETURNED INCOME. ACCORDING TO THE CIT(A), THE JURISDICTIONAL ASSESSING OFFICER WAS NOT AWARE OF THE ASSESSMENT ORDER DATED 7.3.2010 PASSED UNDER SECTIO N.143(3) OF THE ACT BEFORE THE REOPENING OF THE ASSESSMENT AS I S EVIDENT CLEARLY FROM THE REASONS RECORDED. MOREOVER, THE C IT(A) ALSO DECIDED THE ISSUE ON ANOTHER LIMB OF REOPENING THAT THE ASSESSING OFFICER HAS FORMED HIS BELIEF THAT THE ASSESSEE HAS TRIED TO SUPPRESS THE SOURCE OF THE PAYMENT I.E. FEES FOR PR OFESSIONAL OR TECHNICAL SERVICES. BUT ACCORDING TO THE CIT(A), W HERE NO ADDITION HAS BEEN MADE WITH RESPECT TO SUPPRESSION OF FEES F OR PROFESSIONAL OR TECHNICAL SERVICES AND THIS ADDITION WAS NEVER M ADE DURING REASSESSMENT. ACCORDINGLY, THE CIT(A) IN VIEW OF T HE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. JE T AIRWAYS (I) LTD., 331 ITR 236 (BOM) OPINED THAT THIS REASSESSME NT ORDER WILL NOT SURVIVE ONCE THE ORIGINAL REASONS FOR WHICH REO PENING IS MADE DOES NOT SURVIVE. ACCORDINGLY, THE CIT(A) FOLLOWIN G THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF JET AIRWAY S (I) LTD (SUPRA) AND ALSO THAT THE ASSESSING OFFICER HAS NOT FORMED BELIEF FOR REOPENING THE ASSESSMENT AND BELIEF FORMED WAS TOTALLY ON WRONG PREMISES, HE QUASHED THE REASSESSMENT ORDER. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 4 ITA NO.5608/MUM/2017 ASSESSMENT YEAR 2010-11 6. BEFORE US, SR DEPARTMENTAL REPRESENTATIVE HEAVIL Y RELIED ON THE REASONS RECORDED IN THE ASSESSMENT ORDER. ACCO RDING TO HIM, IN THE REASONS RECORDED, THE ASSESSING OFFICER HAS FOR MED BELIEF THAT RETURN OF INCOME WAS NOT AVAILABLE BEFORE HIM AT TH AT POINT OF TIME. HENCE, THE REOPENING IS VALID AND AS PER LAW., 7. ON THE OTHER HAND, LD COUNSEL FOR THE ASSESSEE A RGUED THAT THE VERY REASONS FOR REOPENING IS WITHOUT ANY BASIS FOR THE REASON THAT THE ASSESSEE HAS ALREADY FILED RETURN OF INCOM E FOR ASSESSMENT YEAR 2010-11 I.E. THE YEAR UNDER CONSIDERATION UNDE R PAN NO. AHXPJ 9223 A AND A REGULAR SCRUTINY ASSESSMENT UNDE R SECTION.143(3) WAS COMPLETED ON 7.3.2013 BY THE ERS TWHILE ASSESSING OFFICER I.E. ITO, WARD 18(3)(3), MUMBAI M UCH BEFORE THE ISSUANCE OF NOTICE UNDER SECTION.148 OF THE ACT DAT ED 17.2.2014. ANOTHER LIMB ARGUED BY LD COUNSEL FOR THE ASSESSEE IS THAT THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF HONBL E BOMBAY HIGH COURT IN THE CASE OF JET AIRWAYS (I) LTD (SUPRA) AN D FOR THIS, SHE STATED THAT THE REASONS RECORDED FOR ESCAPEMENT OF INCOME WAS NEVER THE SUBJECT MATTER OF ADDITION IN THE REASSES SMENT PROCEEDINGS AND ONCE THIS IS NOT THE SUBJECT MATTER OF ADDITION, THE REOPENING WILL NOT SURVIVE. IN VIEW OF THIS, SHE U RGED THE BENCH TO CONFIRM THE ORDER OF THE CIT(A). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. ADMITTED FACTS ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010-11 WI TH ITO-18(3)(3) UNDER NEW PAN NO..AHXPJ 9223 A FOR AND FROM ASSESSMENT YE AR 201-11. UPTO ASSESSMENT YEAR 2009-10, THE ASSESSEE WAS FILING RE TURN OF INCOME UNDER OLD PAN NO.AADCM 9153 E AND SINCE THIS NEW PAN HAS BEEN REALLOCATED, THE STATUS WAS CATEGORIZED AS C FOR COMPANY INSTEAD OF P FOR INDIVIDUAL, THERE WAS NO NEED TO FILE THE RETUR N UNDER THIS PAN. EVEN THE SCRUTINY ASSESSMENT FOR ASSESSMENT YEAR 2010-11 WAS COMPLETED UNDER SECTION.143(3) BY ITO 18(3)(3), MUMBAI ON 7.3 .2013 BEFORE THE 5 ITA NO.5608/MUM/2017 ASSESSMENT YEAR 2010-11 ISSUANCE OF NOTICE UNDER SECTION.148 OF THE ACT ON 17.2.2014.. THE FIRST REASON THAT THE ASSESSEE HAS NOT FILED RETURN OF IN COME IN THE REASONS RECORDED BY THE ASSESSING OFFICER FAILS. HENCE, TH IS REASON DOES NOT SURVIVE. SECONDLY, THE REASONS RECORDED THAT THE A SSESSING OFFICER RECEIVED INFORMATION FROM NMS DADA THAT THE ASSESSE E HAS NOT DISCLOSED FEE FOR PROFESSIONAL OR TECHNICAL SERVICES IN VIEW OF TDS RETURN, WE FIND THAT THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS NOT MADE ANY ADDITION TO THE RETURN OF INCOME QUA-THIS FEE FOR P ROFESSIONAL AND TECHNICAL SERVICES AS PER THE REASONS RECORDED. IN VIEW OF T HE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF JET AIRWAYS (I) LT D., (SUPRA), WHEREIN, IT IS HELD THAT THE ASSESSING OFFICER HAS POWER TO ASS ESS OR REASSESS THE INCOME WHICH HE HAD REASON TO BELIEVE THAT HAD ESCA PED ASSESSMENT AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX. FURTHER, IT IS OBSERVED BY HONBLE HIGH COURT THAT WORDS AND ALSO ARE ALSO USED IN CUMULATIVE AND CONJUNCTIVE SENSE THAT WHERE INCOME ORIGINALLY ACCE PTED BY THE ASSESSING OFFICER TO HAVE ESCAPED ASSESSMENT IS HELD IN REGAR D NOT TO HAVE ESCAPED ASSESSMENT, THEN, IT IS NOT OPEN TO THE AO TO INDEPENDENTLY ASSESSEE OTHER INCOMES. SIMILAR ARE THE FACTS IN THE PRESENT CASE BEFORE US AND THE RATIO DECIDED BY HONBLE BOMBAY HIGH COU RT IN THE CASE OF JET AIRWAYS (I) LTD (SUPRA) IS APPLICABLE IN THIS CASE. HENCE, IN VIEW OF THE ABOVE REASONS, WE ARE OF THE CONSIDERED VIEW THAT T HE CIT(A) HAS RIGHTLY QUASHED THE REASSESSMENT ORDER PASSED BY THE ASSESS ING OFFICER AND WE AFFIRM THE SAME. 9IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 12-03- 2019. AADOSA KI AADOSA KI AADOSA KI AADOSA KI GAAO GAAOGAAO GAAOYANAA KULAO MAO IDNAMK YANAA KULAO MAO IDNAMK YANAA KULAO MAO IDNAMK YANAA KULAO MAO IDNAMK 15. 03.2019 KAO KI KAO KI KAO KI KAO KI GA GAGA GA SD/- SD/- (MANOJ KUMAR AGARWAL) (MAHAVIR SI NGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 12-03- 2019 6 ITA NO.5608/MUM/2017 ASSESSMENT YEAR 2010-11 BKP/SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASSISTANT REGISTRAR ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT (A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//