AMERICAN HOTEL & LODGING EDUCATION INSTITUTE ( ERLIER KNWON AS EDUCTIONAL INSTITUTE OF AMERICAN HOTEL & MOTEL ASSOCIATION ), MUMBAI V. ADI T (IT)1(1), MUMBAI

ITA 6796/MUM/2010

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2390 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-05-2015
• Assessment Year: 1999-2000
• Appeal Filed On: 27-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A RAMACHANDRAN
• Assessee Lawyers: J D MISTRY
• Keywords: Period of limitation
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEORE SHRI N.K.BILLAIYA, ACCOUNTNT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 6796/MUM/2010 (ASSESSMENT YEAR : 1999-00) M/S. AMERICAN HOTEL & LODGING EDUCATIONAL INSTITUTE (EARLIER KNOWN AS EDUCATIONAL INSTITUTE OF AMERICAN HOTEL & MOTEL ASSOCIATION) ASHA HOUSE, 28, SUREN ROAD, ANDHERI (EAST), MUMBAI 400 093. PAN: AAAAE0097J .... APPELLANT VS. THE ASSTT. DIRECTOR OF INCOME-TAX- (INTERNATIONAL TAXATION)-1(1), 1 ST FLOOR, SCINDIA HOUSE, BALLARD PIER, N.M.ROAD, MUMBAI 400 038. .... RESPONDENT APPELLANT BY : SHRI J.D.MISTRY RESPONDENT BY : SHRI A.RAMACHANDRAN DATE OF HEARING : 24/11/2015 DATE OF PRONOUNCEMENT : 24/11/2015 ORDER PER N.K.BILLAIYA,AM: THIS IS AN APPEAL FILED BY THE ASSESSEE CHALLENGING THE ORDER OF THE CIT(A)-10, MUMBAI DATED 19/07/2010 PERTAINING TO AS SESSMENT YEAR 1999-2000. THE GRIEVANCE OF THE ASSESSEE IS TWOFOL D. FIRSTLY, THE ASSESSEE HAS CHALLENGED THE ASSESSMENT AS BARRED BY LIMITATION WITHIN 2 ITA NO. 6796/MUM/2010 (ASSESSMENT YEAR : 1999-00) THE PROVISIONS OF SECTION 153(2A) OF THE INCOME TAX ACT,1961( IN SHORT THE ACT) AND SECONDLY, THE ASSESSEE IS AGGRIEVED BY THE DENIAL OF EXEMPTION UNDER SECTION 10(23C)(VI) OF THE ACT. TH EREFORE, LET US UNDERSTAND THE FACTUAL MATRIX OF THE CASE. 2. IN THIS CASE, IN THE FIRST ROUND THE LITIGATI ON TRAVELLED UPTO THE TRIBUNAL AND THE TRIBUNAL VIDE AN ORDER DATED 21/02 /2005 IN ITA NO.2365/MUM/2003 RESTORED THE MATTER TO ASSESSING O FFICER TO EXAMINE ALL THE ASPECTS AFRESH AND FOLLOW THE DECIS ION OF THE HONBLE DELHI HIGH COURT IN THE WRIT PETITION OF THE ASSES SEE AS AND WHEN THE SAME IS DECIDED. PURSUANT TO THE DIRECTIONS OF THE ITAT THE ORDER GIVING EFFECT WAS MADE VIDE AN ORDER DATED 09/01/2008. IT IS THE CONTENTION OF THE ASSESSEE THAT THIS ORDER IS BARRED BY LIMITA TION WITHIN THE PROVISIONS OF SECTION 153(2A) OF THE ACT. 2.1 PROVISIONS OF SECTION 153(2A) READ AS UNDER:- SECTION153 (2A) NOTWITHSTANDING ANYTHING CONTAINE D IN SUB-SECTIONS 4(1), (1A), (1B) AND (2), IN RELATION TO THE ASSESSMENT YEAR COM-MENCING ON THE 1ST DAY OF APRIL, 1971, AND ANY SUBSEQUENT ASSESSMENT YEAR, AN ORDER OF FRESH ASSES SMENT IN PUR-SUANCE OF AN ORDER UNDER SECTION 250 OR SECTION 254 OR SECTION 263 OR SECTION 264, SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE E XPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE CHIEF COMMISSIONER OR COMMISSIONER : PROVIDED THAT WHERE THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE , THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE CHIEF COMMISSIONER OR COMMISSIONER, ON OR AFTER THE 1ST DAY OF APRIL, 1999 BUT BEFORE THE 1ST DAY OF APRIL, 2000, SUCH AN ORDER OF FRESH ASSESSMENT MAY BE MADE AT ANY TIME UP TO THE 31ST D AY OF MARCH, 2002. PROVIDED FURTHER THAT WHERE THE ORDER UNDER SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE , THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE COMMISSIONER ON OR AFT ER THE 1ST DAY OF APRIL, 2005, THE PROVISIONS OF THIS SUB-SECTION SHALL HAVE EFFECT AS IF FOR THE WORDS 'ONE YEAR', THE WORDS 'NINE MONTHS' HAD BEEN SUBSTITUTED. 3 ITA NO. 6796/MUM/2010 (ASSESSMENT YEAR : 1999-00) PROVIDED ALSO THAT WHERE THE ORDER UNDER SECTION 25 4 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE , THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE COMMISSIONER ON OR AFT ER THE 1ST DAY OF APRIL, 2006, AND DURING THE COURSE OF THE PROCEEDINGS FOR THE FRESH ASSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB-SECTION (1) OF SECTION 92CA-(I) WAS MADE BEFORE THE 1ST DAY OF JUNE, 2007 BUT AN ORDER UNDER SUB-SECTION (3) OF SE CTION 92CA HAS NOT BEEN MADE BEFORE SUCH DATE ; OR(II) IS MADE ON OR AFTER THE 1 ST DAY OF JUNE, 2007, PROVIDED ALSO THAT WHERE THE ORDER UNDER SECTION 25 4 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE COMMISSIONER ON OR AFT ER THE 1ST DAY OF APRIL, 2010, AND DURING THE COURSE OF THE PROCEEDING FOR THE FRESH A SSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB-SECTION (1) OF SECTION 92CA IS MADE, THE PROVISIONS OF THIS SUB- SECTION SHALL, NOTWITHSTANDING ANYTHING CONTAINED I N THE SECOND PROVISO, HAVE EFFECT AS IF FOR THE WORDS ONE YEAR THE WORDS TWO YEARS H AD BEEN SUBSTITUTED. 2.2 A PERUSAL OF THIS SECTION SHOWS THAT AN ORDE R OF FRESH ASSESSMENT SETTING ASIDE THE ORDER CANCELLING THE A SSESSMENT MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FRO M THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER IS RECEIVED BY TH E COMMISSIONER. AS MENTIONED ELSEWHERE, THE ORDER OF THE ITAT IS DATED 22/02/2005, WHICH WAS RECEIVED BY THE DEPARTMENT ON 05/04/2005. NOW THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER IS RECEIVED BY TH E COMMISSIONER WOULD MEAN THE END OF THE FINANCIAL YEAR 2005-06 AND ONE YEAR FROM THE END OF FINANCIAL YEAR WOULD MEAN 31/3/2007 AND THE REAS SESSMENT ORDER IS DATED 09/01/2008. THUS, IT CAN BE SEEN THAT THE OR DER IS BARRED BY LIMITATION. HOWEVER, A STRONG OBJECTION WAS RAISED BY THE LD. DR STATING THAT THE TRIBUNAL HAS DIRECTED TO DO THE RE -ASSESSMENT AFTER FOLLOWING THE DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE WRIT PETITION OF THE ASSESSEE. THE SAID DECISION WAS MA DE ON 24/11/2006 AND WAS RECEIVED BY THE DIT(IT) ON 23/02/2007, WHIC H MEANS SAID ORDER OF THE HONBLE HIGH COURT WAS COMMUNICATED IN FINANCIAL YEAR 2006-07 AND ONE YEAR FROM THE END OF THE SAID FINAN CIAL YEAR WOULD MEAN UPTO 31/03/2008 AND SINCE THE ASSESSMENT ORDER IS MADE ON 4 ITA NO. 6796/MUM/2010 (ASSESSMENT YEAR : 1999-00) 09/01/2008, THEREFORE, IT IS WELL WITHIN THE PERIOD OF LIMITATION. THE RELEVANT PROVISION FOR THIS PROPOSITION OF THE LD. DR IS SECTION 153(3) OF THE ACT, WHICH READS AS UNDER:- SECTION 153(3): THE PROVISIONS OF SUB-SECTIONS 4(1), (1A), (1B) AND (2) SHALL NOT APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSME NTS AND RECOMPUTATIONS WHICH MAY, SUBJECT TO THE PROVISIONS OF SUB-SECTION (2A) BE COMPLETED AT ANY TIME-- (II) WHERE THE ASSESSMENT, REASSESSMENT OR RECOMPUT ATION IS MADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT T O ANY FINDING OR DIRECTION CONTAINED IN AN ORDER UNDER SECTION 250, 254, 260, 262, 263 OR 264 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT; (III) WHERE IN THE CASE OF A FIRM, AN ASSESSMENT IS MADE ON A PARTNER OF THE FIRM IN CONSEQUENCE OF AN ASSESSMENT MADE ON THE FIRM UNDER SECTION 147. 2.3 A SIMPLE PERUSAL OF THIS SECTION SHOWS THAT IT IS SUBJECT TO THE PROVISIONS OF SECTION 153(2A) OF THE ACT. PROVISIO NS OF SECTION 153(2A) ARE MENTIONED ELSEWHERE. IN OUR UNDERSTANDING, T HE LAW PROVISIONS OF SECTION 153(2A) HAVE OVERRIDING EFFECT TO THE PROVI SIONS OF SECTION 153(3) OF THE ACT AND, THEREFORE, IN OUR CONSIDERED OPINION THE IMPUGNED ORDER GIVING EFFECT TO THE DECISION OF THE ITAT IS BARRED BY LIMITATION. THE APPEAL FILED BY THE ASSESSEE ON TH IS GROUND IS ALLOWED. 3. SINCE WE HAVE HELD THAT THE ORDER IS BARRED BY L IMITATION, WE DO NOT FIND IT NECESSARY TO GO INTO THE MERITS OF THE CASE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 24 TH NOVEMBER 2015. SD/- SD/- ( PAWAN SINGH) (N.K.BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 24/11/2015 5 ITA NO. 6796/MUM/2010 (ASSESSMENT YEAR : 1999-00) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI VM , SR. PS