M/s Malpani Manufacturing and Marketing Co. Pvt. Ltd., Jabalpur V. A.C.I.T, Jabalpur

ITA 63/JAB/2013

• Counselvise Citation: 6322914 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHISHEK SHUKLA
• Assessee Lawyers: ABHSHEK OSWAL
• Keywords: Business income; Depreciation; Opportunity of being heard; Corroborative evidences
• Section: 32; 246; 143(3)

Judgement Text

I.T.A. NO. 63/JAB/13 ASSESSMENT YEAR 2007-08 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR [CORAM: I C SUHIR JM AND PRAMOD KUMAR AM] I.T.A. NO. 63/JAB/13 ASSESSMENT YEAR 2007-08 MALPANI MFG. CO. PVT. LTD. .APPELLANT HANUMANTAL, JABALPUR [ PAN: AACDM1275B] VS. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1(1), JABALPUR .RES PONDENT APPEARANCES BY: ABHSHEK OSWAL FOR THE APPELLANT ABHISHEK SHUKLA FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT H AS CHALLENGED CORRECTNESS OF THE ORDER DATED 1 ST JULY 2012, PASSED BY THE CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX A CT, 1961, FOR THE ASSESSMENT YEAR 2007-09. 2. GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOLLOWS : 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S OF THE CASE IN UPHOLDING THE ADDITION OF RS.968067/- ON ACCOUNT OF EXPENSES INCURRED FOR RUNNING OF TAXIES. THE CLAIM SHOULD H AVE BEEN ALLOWED IN FULL. 2. THE TAXIES WERE IN THE NAME OF SHRI PRAVEEN MALP ANI (EMPLOYEE) FOR OBTAINING THE LOAN FACILITY, CANNOT DETERMINE THE OWNERSHIP AS BELONGING TO PRAVEEN MALPANI WHEN ALL THE INVESTMENTS ARE ACCOUNTED FOR BY THE COMPANY. THE ADDITION SHO ULD BE DELETED. I.T.A. NO. 63/JAB/13 ASSESSMENT YEAR 2007-08 PAGE 2 OF 7 3. THE LEARNED CIT(A) IS NOT JUSTIFIED IN ADJUSTING THE A.O. TO MAKE ASSESSMENT IN THE PROPER HANDS, IT TANTAMOUNT TO ON ILLEGAL DIRECTION, SAME SHOULD BE EXPUNGED. 4. THE APPELLANT CRAVES PERMISSION TO RAISE ANY OTH ER GROUND OR GROUNDS AT THE TIME OF HEARING OF THIS APPEAL. 3. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERI AL FACTS NEED TO BE TAKEN NOTE OF. DURING THE COURSE OF THE ASSESSMENT PROCE EDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSE HAS DISCLOSED RECEIPTS FROM TAXI OPERATIONS, AS PER AUDITED ACCOUNTS, AT RS 7,37,380 AND THE EXPENDITUR E ON MAINTENANCE, BANK INTEREST AND DEPRECIATION OF RELATED VEHICLES AT RS 9.68,067. WHILE THE ASSESSING OFFICER DISALLOWED RS 9,68,067 ON THE GROUND THAT T HE SUPPORTING EVIDENCES ARE NOT RELIABLE THE VEHICLES WERE REGISTERED IN THE N AME OF PRAVEEN MALPANI AND THE BORROWINGS FOR PURCHASE OF THESE VEHICLES ARE A LSO IN THE NAME OF PRAVEEN MALAPANI, EVEN AS THESE ARE SHOWN AS ASSETS AND LIA BILITIES OF THE ASSESSEE COMPANY AND ACCOUNTED FOR AS SUCH. IN APPEAL, THE CIT(A) UPHELD THE DISALLOWANCE THOUGH SHE DIRECTED THAT IN THE ABSENC E OF THE AUTHENTIC EVIDENCES REGARDING TAXI PLYING BUSINESS, THE RECEIPTS CAN AL SO NOT BE TAXED IN THE HANDS OF THE ASSESSEE, WHICH SHOULD, ACCORDING TO THE CIT(A) , BE TAXED IN THE RIGHT HANDS AND IN THE RIGHT YEAR. THE ASSESSEE IS AGGRIEVED A ND IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE IN THE L IGHT OF THE APPLICABLE LEGAL POSITION. 5. WE HAVE NOTED THAT THE AUTHORITIES BELOW HAVE H ELD THAT THE EXPENSES, INTEREST AND DEPRECIATION ON VEHICLES, WHICH ARE NO T IN THE NAME OF THE ASSESSEE, CANNOT BE ALLOWED. IN PRINCIPLE, THIS ISSUE IS COVE RED IN FAVOUR OF THE ASSESSEE BY A COORDINATE BENCH DECISION IN THE CASE OF MINDA AC OUSTICS LTD VS ADDITIONAL CIT AND VICE VERSA (ITA NOS 1347 AND 1504/DEL/11; ORDER DATED 16 TH JANUARY 2015) WHEREIN A COORDINATE BENCH HAS, INTER ALIA, HELD AS FOLLOWS: I.T.A. NO. 63/JAB/13 ASSESSMENT YEAR 2007-08 PAGE 3 OF 7 8. IN SECOND GROUND OF APPEAL, THE ASSESSEE HAS RAI SED THE FOLLOWING GRIEVANCE: 2.0 THAT THE CIT(A) HAS GROSSLY ERRED IN LAW AND ON THE FACTS OF THE APPELLANTS CASE IN DENYING THE DEPRECIATION ON THE VEHICLES WHICH WERE ADMITTEDLY USED FOR THE PURPOSE OF BUSINESS AND WERE OWNED BY THE APPELLANT BUT HOWEVER, THESE WERE NOT REGISTERED IN THE NAME OF THE APPELLANT. 9. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER DISALLOWED DEPRECIATION OF RS 64,821 AS THE VEHICLES, IN RESPECT OF WHICH THIS DEPRECIATION WAS CLAIMED, WERE REGISTER ED IN THE NAME OF MINDA INDUSTRIES LIMITED AND NOT THE ASSESSEE. IN APPEAL, IT WAS EXPLAINED TO THE ASSESSEE THAT THESE VEHICLES WERE TRANSFERRED TO TH E ASSESSEE BY MINDA INDUSTRIES LIMITED, AS PART OF BUSINESS ON GOING CO NCERN BASIS, AND AS SUCH THE VEHICLES WERE DE FACTO OWNED BY THE ASSESSEE. LEARNED CIT(A) DID NOT ACCEPT THIS PLEA. HE HELD THAT THE OWNERSHIP AND US AGE OF AN ASSET IS A SINE QUA NON FOR CLAIM OF DEPRECIATION IN RESPECT OF SUC H AN ASSET. IN SUPPORT OF THIS PROPOSITION, HE PLACED RELIANCE ON THE JUDGMEN TS OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CHANGANLAL AUTOMOBILES VS CIT [(1985) 156 ITR 58] . A REFERENCE WAS ALSO MADE TO THE DECISIONS OF HON BLE KERALA HIGH COURT IN THE CASE OF DCST VS JINACHANDRAN [(1994) 205 ITR 328] AND OF HONBLE MP HIGH COURT IN THE CASE OF SARDAR TARA SINGH VS CIT [(1963)47 ITR 756]. THE DISALLOWANCE WAS THUS UPHELD BY THE LEARNED COM MISSIONER (APPEALS) AS WELL. THE ASSESSEE IS AGGRIEVED OF THE STAND SO TAKEN BY THE LEARNED COMMISSIONER (APPEALS) AND IS IN FURTHER AP PEAL BEFORE US. 10. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 11. WE FIND THAT ALL THE THREE DECISIONS REFERRED T O AND RELIED UPON BY THE LEARNED COMMISSIONER (APPEALS) REFER TO THE SITUATI ONS IN WHICH THE ASSESSEE WAS USING THE ASSETS UNDER HIRE PURCHASE A GREEMENT AND THE QUESTION AROSE WHETHER THE ASSESSEE IS ENTITLED TO DEPRECIATION IN RESPECT OF THESE ASSETS OR NOT. HONBLE COURTS WERE CONSISTENT LY OF THE VIEW THAT UNTIL THE POINT OF TIME THE OWNERSHIP VESTS IN THE HIRER, THE HIRER IS NOT ELIGIBLE FOR THE DEPRECIATION. THERE CANNOT BE ANY QUARREL W ITH THIS PROPOSITION BUT THIS PROPOSITION HAS NOTHING TO DO WITH THE FACTS O F THE PRESENT CASE. HERE IS A CASE IN WHICH THE ASSESSEE IS A DE FACTO OWNER OF THE VEHICLES, THERE IS NO DISPUTE ABOUT THE FACT OF OWNERSHIP AND THE ONLY HU RDLE IN THE WAY OF THE ASSESSEES ELIGIBILITY OF DEPRECIATION IS THAT THE VEHICLES ARE NOT REGISTERED IN HIS NAME. THE OWNERSHIP OF A VEHICLE AND THE REGIST RATION OF A VEHICLE IN SOMEONES NAME ARE NOT EXACTLY THE SAME THING. THER E CAN BE SITUATIONS IN WHICH THE ASSESSEE MAY BE OWNER OF AN ASSET EVEN AS THE ASSET MAY BE NOT REGISTERED IN THE NAME OF THE ASSESSEE. DEALING WI TH THIS KIND OF A SITUATION, I.E. IN WHICH THE ASSESSEE HAD PURCHASED AN ASSET B UT THE SAID ASSET WAS NOT REGISTERED IN THE NAME OF THE ASSESSEE EVEN AS THE ASSESSEE COULD EXERCISE THE RIGHTS OF THE OWNER QUA THE ASSETS, HONBLE SUP REME COURT HAS, IN THE I.T.A. NO. 63/JAB/13 ASSESSMENT YEAR 2007-08 PAGE 4 OF 7 CASE OF MYSORE MINERALS LIMITED VS CIT [(1999) 239 ITR 775] , OBSERVED THAT, THE INTENTION OF THE LEGISLATURE IN ENACTING S. 32 OF THE ACT WOULD BE BEST FULFILLED BY ALLOWING DEDUCTION IN RE SPECT OF DEPRECIATION TO THE PERSON IN WHOM FOR THE TIME BEING VESTS THE DOMINION OVER THE BUILDING AND WHO IS ENTITLED TO USE IT IN HIS OWN R IGHT AND IS USING THE SAME FOR THE PURPOSES OF HIS BUSINESS OR PROFESSION . ASSIGNING ANY DIFFERENT MEANING WOULD NOT SUBSERVE THE LEGISLATIV E INTENT . IT IS THUS CLEAR THAT THE TECHNICALITY OF AN ASSET BEING REGIS TERED IN THE NAME OF THE ASSET CAN NOT COME IN THE WAY OF AN ASSESSEES ELIG IBILITY FOR DEPRECIATION AS LONG AS SUCH AN ASSET IS DE FACTO OWNED BY THE ASSE SSEE AND IS USED FOR THE PURPOSES OF THE BUSINESS. IN THE PRESENT CASE, IN T HE LIGHT OF THE BUSINESS TRANSFER AGREEMENT, THERE IS NO DOUBT THAT THE ASSE T WAS OWNED BY THE ASSESSEE. IT IS NOT EVEN IN DISPUTE THAT THE ASSET WAS USED FOR THE PURPOSES OF THE BUSINESS, NOR HAS THAT BEEN THE CASE OF THE ASS ESSING OFFICER. THE CONDITIONS FOR ELIGIBILITY TO CLAIM DEPRECIATION AR E THUS SATISFIED ON THE FACTS OF THE PRESENT CASE. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE UPHOLD THE GRIEVANCE OF TH E ASSESSEE AND DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED DISALLOWAN CE OF RS 64,821. THE ASSESSEE GETS THE RELIEF ACCORDINGLY. 6. IT IS THUS CLEAR THAT THE EXPENSES CANNOT BE DIS ALLOWED MERELY BECAUSE THE VEHICLES, AS ALSO CORRESPONDING LOANS, ARE NOT IN T HE NAMES OF THE ASSESSEE BUT IN THE NAME OF ITS DIRECTORS. NONE OF THE AUTHORITIES BELOW HAVE GIVEN ANY COGENT REASONS FOR NOT ALLOWING THE DEDUCTION FOR EXPENSES . THE REFERENCE TO SELF-MADE VOUCHERS AND ABSENCE OF CONVINCING EVIDENCE IS VAGU E AS EVIDENT FROM THE FACT THAT DEPRECIATION DOES NOT NEED A VOUCHER, THE PAYM ENT FOR INTEREST IS MADE TO BANKER AND THE AO HAS HIMSELF NOTED THAT THE VOUCHE RS FOR EXPENSES ARE IN THE NAME OF PRAVEEN MALPANI BUT HAS NOT POINTED OUT ANY SPECIFIC DEFECTS IN THESE VOUCHERS. YET DEPRECIATION, INTEREST AND EXPENSES A RE DISALLOWED AND ONE OF THE REASONS IN SUPPORT OF THIS ACTION IS STATED TO BE L ACK OF SUPPORTING VOUCHERS. ONCE THE USE OF ASSETS BY THE ASSESSEE IS NOT IN DO UBT, THERE CANNOT BE ANY GOOD REASONS TO DECLINE THE DEPRECIATION, INTEREST AND R ELATED EXPENSES. WHAT IS, THEREFORE, IMPORTANT IS TO EXAMINE THE ISSUE AS TO WHETHER THE USE OF ASSETS WAS FOR THE PURPOSES OF THE COMPANY. WE HAVE NOTED THA T THE ASSESSING OFFICER HAS NOT DISPUTED THIS ASPECT, HAS HELD THE RECEIPTS TO BE TAXABLE IN THE HANDS OF THE COMPANY BUT DECLINED TO TREAT THE SAME AS BUSINESS RECEIPTS ON THE SHORT GROUND THAT THE RELATED ASSETS WERE NOT OWNED BY THE ASSES SEE COMPANY. THAT COURSE OF ACTION, FOR THE REASONS SET OUT ABOVE, WAS NOT PERM ISSIBLE IN LAW. IN APPEAL, I.T.A. NO. 63/JAB/13 ASSESSMENT YEAR 2007-08 PAGE 5 OF 7 LEARNED CIT(A) HAS GIVEN AN OBLIQUE FINDING ABOUT THIS INCOME TO BE TAXED IN THE HANDS OF THE OWNER BUT SUCH A DIRECTION, IN THE ABS ENCE OF THAT PERSON BEING AFFORDED A SPECIFIC OPPORTUNITY OF HEARING AND IN T HE LIGHT OF EXPLANATION 3 TO SECTION 153(3), IS CLEARLY BEYOND THE SCOPE OF HER POWERS. WE MAY, IN THIS REGARD, REFER TO THE FOLLOWING OBSERVATIONS OF ANOT HER COORDINATE BENCH IN THE CASE OF GAURAV LUTHARA VS ITO [(2014) 149 ITD 410]: 8. ... ONE OF THESE RIDERS, SET OUT IN EXPLANAT ION 3 TO SECTION 153(3)- AS SET OUT ABOVE, PROVIDES THAT, ANY INCOME IS EXCLUDED FROM THE TOTAL INCOME OF ONE PERSON AND HELD TO BE THE INCOME OF ANOTHER PERSON, THEN, AN ASSESSMENT OF SUCH INCOME ON SUCH OTHER PERSON SHALL, FOR THE PURPOSES OF SECTION 150 AND THIS SECTION, BE DEEMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER, P ROVIDED SUCH OTHER PERSON WAS GIVEN AN OPPORTUNITY OF BEING HEARD BEFORE THE SAID ORDER WAS PASSED.. THE NET RESULT OF THIS ENABLING PROVISION, AND THE RIDER THE RETO, IS THAT WHEN AS A RESULT OF A FINDING OR DIRECTION IN, INTER ALIA , IN AN APPELLATE ORDER, INCOME OF ONE PERSON (SAY X) IS HELD TO BE INCOME OF ANOTHER PERSON (SAY Y), THE A SSESSMENT OF SUCH ANOTHER PERSON (I.E. Y ) CAN BE ELIGIBLE FOR RELAXATION FROM TIME BARR ING PROVISIONS ONLY IF SUCH OTHER PERSON WAS GIVEN AN OPPORTUNITY OF BEING HEARD BEFO RE THE SAID ORDER (I.E. APPELLATE ORDER) WAS PASSED. 8. OF COURSE, IT IS NOT ON THE UNFETTERED DISCRETION OF THE APPELLATE AUTHORITY TO GIVE ANY DIRECTIONS AND THERE ARE STRICT LEGAL PROVISIONS ON THE SCOPE OF WHAT DIRECTIONS OR FINDINGS CAN BE GIVEN IN THE COURSE OF THE APPELLATE PROCEEDINGS. HONBLE SUPREME COURT, IN THE CASE OF RAJINDER NATH VS CIT (120 ITR 14), HAS HELD THAT A FINDING GIVEN IN AN APPEAL, REVISION OR REFERENCE ARISING OUT OF AN ASS ESSMENT MUST BE A FINDING NECESSARY FOR THE DISPOSAL OF THE PARTICULAR CASE, THAT IS TO SAY, IN RESPECT OF THE PARTICULAR ASSESSEE AND IN RELATION TO THE PARTICUL AR ASSESSMENT YEAR. TO BE A NECESSARY FINDING, IT MUST BE DIRECTLY INVOLVED IN THE DISPOSAL OF THE CASE . HOWEVER, THAT ASPECT OF THE MATTER IS ACADEMIC SINCE SECTION 267 SPECIFICALLY PROVIDES THAT, WHERE AS A RESULT OF AN APPEAL UNDER SECTION 246 OR SECTION 246A OR SECTION 253, ANY CHANGE IS MADE IN THE ASSESSMENT OF A BODY OF INDIVIDUALS OR AN ASSOCIATION OF PERSONS OR A NEW ASSESSMENT OF A BOD Y OF INDIVIDUALS OR AN ASSOCIATION OF PERSONS IS ORDERED TO BE MADE, COM MISSIONER (APPEALS) OR THE APPELLATE TRIBUNAL, AS THE CASE MAY BE, SHALL PASS AN ORDER AUTHORISING THE ASSESSING OFFICER EITHER TO AMEND THE ASSESSMENT MA DE ON ANY MEMBER OF THE BODY OR ASSOCIATION OR MAKE A FRESH ASSESSMENT ON A NY MEMBER OF THE BODY OR ASSOCIATION . IN OTHER WORDS, THE CIT(A), AS ALSO THIS TRIBUNA L, DOES INDEED HAVE THE POWERS TO ISSUE SUCH DIRECTIONS. THE POWERS TO GIVE SUCH DIRECTIONS IS ONE THING, BUT RELAXATION IN TIME LIMIT FOR COMPLETION OF ASSESSME NT UNDER SECTION 153(3) IS QUITE ANOTHER THING. THAT RELAXATION UNDER SECTION 153(3) , AS EVIDENT FROM EXPLANATION 3 TO SECTION 153(3), CAN ONLY COME INTO PLAY WHEN THE PE RSON IN WHOSE HANDS INCOME IS TO BE ADDED, AS A RESULT OF THESE FINDINGS OR DIRECTIONS, WAS GIVEN AN OPPORTUNITY OF BEING HEARD BEFORE THE SAID ORDER (I.E. APPELLATE ORDER) WAS PASSED . 9. WHEN OUR UNDERSTANDING OF THE LEGAL POSITION, AS SET OUT ABOVE, WAS PUT TO THE LEARNED DEPARTMENTAL REPRESENTATIVE, HE SUBMITTED THA T AN OPPORTUNITY OF HEARING HAVING BEEN GRANTED TO THE REPRESENTATIVES OF THE TR USTS IN QUESTION, AS WAS ADMITTEDLY GIVEN BY THE LEARNED CIT(A) AND IN VIEW OF THE POSIT ION THAT NO TRUSTS EXISTED IN THE EYES OF THE LAW, IS REQUIRED TO BE TREATED AS HEARING TO THE REPRESENTATIVES OF THE TRUSTEES. ON I.T.A. NO. 63/JAB/13 ASSESSMENT YEAR 2007-08 PAGE 6 OF 7 THE BASIS OF THIS REASONING, ACCORDING TO THE LEARN ED DEPARTMENTAL REPRESENTATIVE, CONDITIONS SET OUT IN EXPLANATION 3 TO SECTION 153(3 ) WERE SATISFIED AND THE ORDER PASSED BY THE ASSESSING OFFICER, AS A RESULT OF THE FINDINGS IN THE COURSE OF THE APPELLATE PROCEEDINGS OF THE TRUSTS, IS A LEGALLY VALID ORDER PA SSED WITHIN THE TIME LIMIT SET OUT IN SECTION 153(2A). LEARNED DEPARTMENTAL REPRESENTATIVE HAS ALSO CONTENDED THAT THE POWERS OF THE COMMISSIONER (APPEALS) ARE CO TERMINU S WITH THE POWERS OF THE ASSESSING OFFICER, AND, THEREFORE, WHATEVER ASSESSING OFFICER CAN DO, THE COMMISSIONER (APPEALS) CAN DO AS WELL. WE ARE UNABLE TO UPHOLD THE STAND SO TAKEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. SO FAR AS THE OPPORTUNITY OF HEARIN G TO THE ASSESSEE IN WHOSE HANDS INCOME OF THE ASSESSEE IN APPEAL IS TO BE ADDED, IS C ONCERNED, IT IS CONDITION PRECEDENT FOR GIVING ANY FINDING ADVERSE TO SUCH ASSESSEE VIS- -VIS THE TIME LIMITS FOR COMPLETION OF HIS ASSESSMENT, REASSESSMENT OR RECOMPUTATIONS ARE CONCERNED. THAT IS, IN OUR CONSIDERED VIEW, UNAMBIGUOUS SCHEME OF EXPLANATION 3 TO SECTION 153(3). WHEN AN APPELLATE AUTHORITY DOES NOT DO SO, THE AFFECTED ASSE SSEE CAN NOT BE PUT TO ANY DISADVANTAGE AS FAR AS THE STATUTORY TIME LIMITS FOR COMPLETION OF ASSESSMENTS, REASSESSMENT OR RECOMPUTATIONS. AN OPPORTUNITY TO B E SO GIVEN SHOULD BE A SPECIFIC OPPORTUNITY AND THE AFFECTED ASSESSEE IS REQUIRED TO BE PUT TO NOTICE ON THAT ISSUE. A GENERAL HEARING GIVEN TO THE REPRESENTATIVE OF THE TRUSTS IN QUESTION CANNOT, IN OUR HUMBLE UNDERSTANDING, BE EQUATED WITH SUCH SPECIFIC OP PORTUNITY TO THE AFFECTED ASSESSEE AND THE AFFECTED ASSESSEE BEING PUT TO NOTI CE ABOUT THE CONCLUSIONS ADVERSELY AFFECTING HIM. AS FOR THE POWERS OF THE LEARNED CO MMISSIONER (APPEALS) BEING CO TERMINUS WITH THE POWERS OF THE ASSESSING OFFICER, THIS PROPOSITION HOLDS GOOD ONLY VIS- -VIS THE ASSESSEE IN APPEAL BEFORE THE LEARNED COMM ISSIONER (APPEALS) AND OBVIOUSLY IT WOULD NOT EXTEND TO ALL THE ASSESSEE ON WHOM THE ASS ESSING OFFICER MAY HAVE JURISDICTION. AS REGARDS THE TIME LIMIT UNDER SECTIO N 153(2A), THIS COMES INTO PLAY WHEN FRESH ASSESSMENT FOR THE SAME ASSESSEE AND THE SAME ASSESSMENT YEAR IS TO BE MADE AND ALL OTHER FRESH ASSESSMENTS AS A RESULT OF THE APPE LLATE ORDER, INCLUDING A FRESH ASSESSMENT IN THE CASE OF THAT VERY ASSESSEE FOR AN OTHER ASSESSMENT YEAR, BY THE VIRTUE OF DEEMING FICTIONS SET OUT IN EXPLANATION 2 AND 3, A RE TO BE TREATED AS DEEMED TO BE THE ASSESSMENTS MADE IN CONSEQUENCE OF OR TO GIVE EFFEC T TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER. IN VIEW OF THESE DISCUSS IONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE ARE OF THE CONSIDERED VIEW T HAT UNLESS THIS ASSESSEE WAS GIVEN A SPECIFIC OPPORTUNITY OF BEING HEARD, BEFORE THE APPE LLATE ORDER IN THE CASES OF GURUNANAKDEVJI TRUST, GURU GOVIND SINGHJI TRUST AND GU RU TEG BAHADURJI TRUST WAS PASSED OR UNLESS THE IMPUGNED ORDER WAS PASSED WITHIN T HE TIME LIMITS SET OUT UNDER SECTION 153(1) OR (2), THE IMPUGNED ORDER CANNOT BE S AID TO BE SUSTAINABLE IN LAW. THE TIME LIMIT UNDER SECTION 153(1) AND (2) ARE CLEARLY N OT SATISFIED ON THE FACTS OF THIS CASE SINCE IT IS NOT A CASE OF SERVING THE NOTICE UNDER SECTION 148, THE ASSESSMENT YEAR BEFORE US IS 2002-03, A VALID RETURN WAS DULY FILED AND PROCES SED, AND YET THE IMPUGNED ORDER WAS PASSED ON 4 TH DECEMBER 2006 ( I.E. WELL AFTER TWO YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR). THE SCHEME OF THE INCOME TAX ACT FIERCELY GUARDS THE RULE OF FINALITY TO INCOME TAX PROCEEDINGS, WHETHER IN ASSESSMENT, RE ASSESSMENT, REVISIONS, RECTIFICATIONS OR ANY OTHER PROCEEDINGS, AND ONCE THE TIME LIMIT FOR THAT COURSE OF ACTION IS OVER, THE FINALITY THERETO CANNOT BE DISTURBED EXC EPT UNDER THE SPECIFIC PROVISIONS OF THE ACT. THE ONLY THING WHICH CAN HELP THE CAUSE OF THE REVENUE IS THUS A SPECIFIC NOTICE OF HEARING HAVING BEEN GIVEN TO THE ASSESSEE BEFORE US. 7. IN VIEW OF THE ABOVE DISCUSSIONS, WE UPHOLD THE GRIEVANCE OF THE ASSESSEE IN PRINCIPLE BUT REMIT THE MATTER TO THE ASSESSMENT STAGE FOR THE LIMITED PURPOSES OF VERIFICATION OF SUPPORTING EVIDENCES IN SUPPORT OF THIRD PARTY PAYMENTS FOR REPAIRS EXPENSES ETC. THE AO SHALL DE CIDE THE MATTER AFRESH IN THE I.T.A. NO. 63/JAB/13 ASSESSMENT YEAR 2007-08 PAGE 7 OF 7 LIGHT OF OUR ABOVE OBSERVATIONS AND IN ACCORDANCE W ITH THE LAW, BY WAY OF A SPEAKING ORDER AND AFTER GIVING A REASONABLE OPPORT UNITY OF HEARING TO THE ASSESSEE. WE DIRECT SO. 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODA Y ON 10 TH DAY OF FEBRUARY, 2015. SD/- SD/- I C SUHDIR PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 10 TH DAY OF FEBRUARY, 2015 COPIES TO : (1) THE APPELLANT (2) THE RESPO NDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR