ACIT 11(2), MUMBAI V. JANAK D. DWARKADAS, MUMBAI

ITA 7056/MUM/2008

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7659 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 29-12-2011
• Assessment Year: 1996-1997
• Appeal Filed On: 11-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: PRADIP J JOSHI
• Keywords: Tax effect; Reason to believe
• Section: 147; 148

Judgement Text

1 ITA NO.7056/MUM/2008 M/S SHRI JANAK D. DWARKADAS. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI D. MANMOHAN, V.P. AND SHRI R.K. PANDA, A.M. ITA NO. 7056/MUM/2008 (ASST YEAR 1996-97) ASST. COMMISSIONER OF INCOME- TAX 11(2), ROOM NO. 479, 4 TH FLOOR, AAYAKAR BHAWAN, M.K. ROAD, MUMBAI 20. VS SHRI JANAK D. DWARKADAS, A-6, TAMARIND HOUSE, 36, TAMARIND LANE, MUMBAI. 23. (APPELLANT) (RESPONDENT) PAN NO. AAEPD8303R APPELLANT BY S HRI JITENDRA YADAV RESPONDENT BY SHR I PRADIP J. JOSHI DATE OF HEARING 29.12.2011 DATE OF PRONOUNCEMENT 06.01.2012 ORDER PER R K PANDA, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 2.09.2008 OF THE COMMISSIONER OF INCOME TAX (A)- XI , MUMBAI RELATING TO ASSESSMENT YEAR 1996-97. 2. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNA L ON THE GROUND THAT TAX EFFECT INVOLVED IN THE APPEAL FILED BY THE REVE NUE IS LESS THAN RS. 2 LACS. SUBSEQUENTLY THE REVENUE FILED A MISC. APPLICATION POINTING OUT THAT THE TAX EFFECT INVOLVED IS MORE THAN RS. 2 LACS. THE TRIBU NAL VIDE M.A. NO. 583/MUM/2010 ORDER DTD. 8.12.2010 RECALLED ITS EARL IER ORDER AND HENCE THIS IS A RECALLED MATTER. 2 ITA NO.7056/MUM/2008 M/S SHRI JANAK D. DWARKADAS. 2.1 THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-XI, MUMBAI HAS ERRED IN HOLDING THAT INITIATION OF PROCEEDINGS U/S 147 IS INVALID AND ALLOWED THE APPE AL WITHOUT GOING INTO MERITS OF THE CASE. 2.2 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FI LED ITS RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 1,25,78,870/- ON 28.11.1996 WHICH WAS PROCESSED U/S 143(1)(A) ON 15.01.1997 DETERMINI NG TOTAL INCOME OF RS. 1,26,21,540/-. THE ASSESSMENT WAS COMPLETED U/S 14 3(3) ON 17.12.1998 DETERMINING TOTAL INCOME OF RS. 1,27,15,540/-. SUB SEQUENTLY ON 30.03.2005 THE A.O. ISSUED NOTICE U/S 148 OF THE AC T ON THE GROUND THAT HE HAS REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. IN R ESPONSE TO THE SAID NOTICE ISSUED U/S 148 THE ASSESSEE VIDE HIS LETTER DTD. 21 .4.2005 SUBMITTED THAT THE RETURN FILED BY HIM ON 28.11.1996 FOR A.Y. 1996 -97 BE CONSIDERED AS RETURN IN COMPLIANCE TO NOTICE U/S 148. 2.3 SUBSEQUENTLY THE ASSESSEE ASKED FOR THE REASONS OF REOPENING OF THE ASSESSMENT WHICH WAS PROVIDED BY THE A.O. IN THE R EASONS IT WAS RECORDED THAT THE CLAIM ON REPAIRS AND MAINTENANCE IN RESPEC T OF OFFICE PREMISES WAS CAPITAL IN NATURE AND SHOULD NOT HAVE BEEN CHARGED TO P&L ACCOUNT. IN REPLY TO THE ASSESSEES OBJECTION THE A.O. STATED THAT TH E NOTICE U/S 148 WAS ISSUED UNDER THE PROVISIONS OF SECTION 150(1). THE SAME WAS DONE IN CONSEQUENCE TO FINDING BY THE CIT(A) IN HIS ORDER D ATED 27.12.2002. 2.4 BEFORE THE LD. CIT(A) WHILE CHALLENGING THE ISS UE OF REOPENING IT WAS SUBMITTED THAT IN ASSESSEES OWN CASE FOR A.Y. 1997 -98 THE TRIBUNAL HAS HELD THAT THE CIT(A) HAS NO JURISDICTION TO GIVE DI RECTION TO THE A.O. TO RE- EXAMINE THE ISSUE OF OFFICE REPAIR EXPENSES FOR A.Y . 1996-97 AND 1998-99. 3 ITA NO.7056/MUM/2008 M/S SHRI JANAK D. DWARKADAS. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE BY HOLDING AS UNDER:- 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MAT ERIALS ON RECORD. THE SAID DECISION OF THE HONBLE TRIBUNAL, D BENCH IN ITA NO. 1482/MUM/2003, ASST. YR. 1997-98 DATED 27.02.2 007, HAS BEEN FILED BY THE APPELLANT AS STATED ABOVE. IN TH E SAID ORDER, THE HONBLE TRIBUNAL AT PARAGRAPH 9 HAVE HELD INTER ALI A, IN THIS VIEW OF THE MATTER WE HOLD THAT THE LEARNED CIT(A) HAS O VERSTEPPED HIS JURISDICTION WHILE GIVING DIRECTIONS TO THE ASSESSI NG OFFICER IN RELATION TO ASSESSMENT YEARS OTHER THAN THE ASSESSM ENT YEAR BEFORE HIM. WE, THEREFORE ALLOW THIS GROUND OF APP EAL. THAT BEING THE CASE, THE PRESENT APPEAL OF THE APPELLANT HAS T O BE ALLOWED. 5. SINCE I HAVE ALLOWED THE APPEAL THE APPEAL ON TE CHNICAL GROUNDS, THERE IS NO REASON FOR ME TO GO TO THE MER ITS OF THE CASE. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A) THE REV ENUE IS ION APPEAL BEFORE US. 3. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PURSUED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE T RIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO. 1482/MUM/2003 ORDER DTD. 27.2.200 7 FOR A.Y. 1997-98 AT PARA 9 PAGE 7 OF THE ORDER HAS HELD AS UNDER:- GROUND OF APPEAL NO. 2 (AS REVISED) IS DIRECTED AGA INST THE ORDER OF THE LEARNED CIT(A) THAT THE ASSESSING OFFICER SHOUL D CONSIDER RE- EXAMINING THE MATER AS RESPECTS ASSESSMENT YEARS 19 96-97 AND 1998-99. THE ARGUMENT OF THE ASSESSEE IN THIS BEHA LF IS VERY SIMPLE THAT WHILE DECIDING THE ASSESSEES APPEAL FO R ASSESSMENT YEAR 1997-98 THE LEARNED CIT(A) HAD NO JURISDICTION TO GIVE DIRECTION PREJUDICIAL TO THE ASSESSEE AS RESPECTS ASSESSMENT YEARS 1996-97 AND 1998-99. IN SUPPORT OF THIS CONTENTION THE LEA RNED COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION OF ITAT, JODHPUR BENCH REPORTED IN 93 TTJ (JD) 232. THIS POSITION I S QUITE CLEAR FROM THE LANGUAGE OF SECTION 251 DEALING WITH THE POWERS OF FIRST APPELLATE AUTHORITY. THE OPENING PART OF THE SECTI ON IS IN DISPOSING OF AN APPEAL, THE COMMISSIONER (APPEALS) SHALL HAVE THE FOLLOWING POWERS. IN OTHER WORDS THE CIT(A) HAS JURISDICTIO N ONLY IN DISPOSING OF AN APPEAL AND THEREFORE ONLY ON THE MA TTERS RELATED TO THE ORDER OF ASSESSING OFFICER APPEALED AGAINST. H E MAY WHILE DECIDING AN ISSUE BEFORE HIM ARRIVE AT A CONCLUSION THAT AN INCOME OR EXPENDITURE PERTAINS TO SOME OTHER ASSESSMENT YE AR OR BELONGS TO AN ASSESSEE OTHER THAN THE ASSESSEE BEFORE HIM. HOWEVER, HIS 4 ITA NO.7056/MUM/2008 M/S SHRI JANAK D. DWARKADAS. DIRECTIONS HAVE TO BE CONFINED TO THE ORDER APPEALE D AGAINST. WHAT THE ASSESSING OFFICER COULD NOT HAVE DONE WHILE MAK ING THE ORDER APPEALED AGAINST CANNOT BE DONE BY THE CIT(A) AS WE LL. IN THIS VIEW OF THE MATTER WE HOLD THAT THE LEARNED CIT(A) HAS OVERSTEPPED HIS JURISDICTION WHILE GIVING DIRECTIONS TO THE ASS ESSING OFFICER IN RELATION TO ASSESSMENT YEARS OTHER THAN THE ASSESSM ENT YEAR BEFORE HIM. WE THEREFORE ALLOW THIS GROUND OF APPE AL. 3.1 SINCE THE LEARNED CIT(A) HAS PASSED THE ORDER FOLLO WING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE AND IN ABSENCE OF ANY MATERIAL BROUGHT TO OUR NOTICE AGAINST THE ORDER OF THE TRIBUNAL THE REFORE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). ACCORDINGLY THE SA ME IS UPHELD. THE GROUND RAISED BY THE REVENUE IS DISMISSED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 06.01.2012. SD/- (D.MANMOHAN) VICE PRESIDENT SD/- ( R K PANDA ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 06.01.2012 RK COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT, XI, MUMBAI 4 CIT(A) XI, MUMBAI 5 DR BENCH J 6 MASTER FILE /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI