DCIT, Ludhiana V. M/s Osho Forge Ltd, Ludhiana

ITA 763/CHANDI/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8399 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 02-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Section: 143(3); 153A; 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 763/CHD/2016 ASSESSMENT YEAR: 2007-08 THE DCIT, CC-1, VS. M/S OSHO FORGE LTD., LUDHIANA LUDHIANA PAN NO. AAACO3362L & ITA NO. 764/CHD/2016 ASSESSMENT YEAR: 2009-10 THE DCIT, CC-1, VS. M/S OSHO FORGE LTD., LUDHIANA LUDHIANA PAN NO. AAACO3362L (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAVI SARANGAL RESPONDENT BY : SH. SARABJIT GARG DATE OF HEARING : 02.01.2017 DATE OF PRONOUNCEMENT : 02.01.2017 ORDER PER SANJAY GARG, JUDICIAL MEMBER : THE ABOVE TITLED APPEALS HAVE BEEN PREFERRED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-5, [( HEREINAFTER REFERRED TO AS CIT(A)], LUDHIANA DATED 21.03.2016 FOR ASSESSMENT YEARS 2007-08 AND 2009-10 RESPECTIVELY. 2. SINCE IDENTICAL ISSUE HAS BEEN INVOLVED IN BOTH THE APPEALS, HENCE, THE SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER. 2 3 .THE REVENUE HAS AGITATED THE ACTION OF THE CIT(A ) IN ALLOWING THE APPEALS OF THE ASSESSEE FOR WANT OF PERMISSION U/S 153D BY THE ASSESSING OFFICER FROM JCIT IN RELATION TO THE DE NOVO ASSESS MENT PROCEEDINGS DONE IN COMPLIANCE TO THE ORDERS OF THE CIT, LUDHIANA DATED 23.3.2013 PASSED U/S 263 OF THE ACT VIDE WHICH THE LD. CIT HAS SET ASIDE THE AS SESSMENT ORDER DATED 24.12.2010 AND DIRECTED THE ASSESSING OFFICER TO MA KE A FRESH ASSESSMENT AS PER HIS OBSERVATIONS MADE IN THE SAID ORDER. 4. THE BRIEF FACTS OF THE CASE ARE THAT AN ASSESSME NT ORDER DATED 24.12.2010 WAS PASSED BY THE LD. ASSESSING OFFICER U/S 153A RE AD WITH SECTION 143(3) OF THE INCOME-TAX ACT. THE SAID ORDER WAS PASSED BY TH E LD. ASSESSING OFFICER AFTER OBTAINING APPROVAL OF THE ADDL. CIT AS REQUIR ED U/S 153D OF THE INCOME- TAX ACT. HOWEVER, THE SAID ASSESSMENT ORDER WAS SE T ASIDE BY THE LD. COMMISSIONER OF INCOME TAX (IN SHORT CIT) VIDE HI S ORDER DATED 23.3.2013 IN EXERCISE OF HIS REVISION JURISDICTION U/S 263 OF T HE ACT AND HE THEREBY DIRECTED THE ASSESSING OFFICER TO MAKE ASSESSMENT AFRESH. TH E ASSESSING OFFICER IN COMPLIANCE OF THE ORDERS OF THE CIT PASSED A FRESH ASSESSMENT ORDER DATED 18.3.2014 AND MADE CERTAIN ADDITIONS TO THE INCOME OF THE ASSESSEE. BEING AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). 5. THE LD. CIT(A) IN THE IMPUGNED ORDER DATED 21.3. 2016 OBSERVED THAT WHILE MAKING THE FRESH ASSESSMENT AS PER THE ORDERS OF THE LD. CIT PASSED U/S 263, THE ASSESSING OFFICER WAS REQUIRED TO GET A FR ESH APPROVAL FROM THE JCIT U/S 153D OF THE ACT. HE, THEREFORE, RELYING UPON THE DECISION OF THE ITAT PUNE BENCH OF THE TRIBUNAL IN THE CASE OF AKIL GUL AMALI SOMJI VS ITO WHEREIN THE TRIBUNAL WHILE RELYING UPON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT HAS RELIED IN THE CASE OF CIT V MRS. RATANBAI N.K. DUBHASH [1998] 230 ITR 495 (BOM.) AND THE ORDER OF THE HON'BLE DELHI HIGH COU RT IN THE CASE OF CIT VS. 3 SPLS SIDDHARTHA LTD [2012] 345 ITR 223 (DEL) HELD THAT THE REQUIREMENT U/S 153D FOR OBTAINING APPROVAL OF JCIT IS NOT PROCEDURAL ON LY BUT A MANDATORY REQUIREMENT. THE LD. CIT(A), THEREFORE, HELD THAT T HE ASSESSMENT DONE BY THE ASSESSING OFFICER WAS NOT VALID AND THAT THE SAME W AS NULL AND VOID. BEING AGGRIEVED BY THE ABOVE FINDING OF THE LD. CIT(A), T HE REVENUE HAS COME IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF AKIL GULAMALI SOMJI VS ITO (SUPRA). THE FACTS IN THAT CASE WAS THAT NO P ERMISSION WAS TAKEN BY THE ASSESSING OFFICER FROM THE JCIT U/S 153D BEFORE PAS SING THE ASSESSMENT ORDER U/S 153C OF THE ACT. THAT WAS NOT A CASE OF SETTI NG ASIDE OF THE ASSESSMENT ORDER U/S 263 BY THE CIT FOR DE NOVO ASSESSMENT. HOWEVER, IN THE CASE IN HAND THE PERMISSION BEFORE PASSING THE ORIGINAL ASSESSME NT U/S 153A WAS DULY TAKEN BY THE ASSESSING OFFICER FROM THE COMPETENT AUTHORI TY. IN OUR VIEW, THE PERMISSION U/S 153 D WAS REQUIRED TO ASSUME JURIS DICTION TO PASS AN ORDER OF ASSESSMENT U/S 153A OF THE ACT. ONCE THE PERMISSIO N WAS TAKEN, THE JURISDICTION WAS ASSUMED BY THE ASSESSING OFFICER A ND THE ASSESSMENT ORDER WAS PASSED, WHICH, HOWEVER, HAS BEEN SUBSEQUENTLY SET ASIDE BY THE CIT FOR FRAMING THE SAME AFRESH. IN THESE CIRCUMSTANCES, IT CANNOT BE SAID THAT THE ASSESSING OFFICER HAD LOST JURISDICTION TO FRAME THE ASSESSME NT AFRESH IN COMPLIANCE OF THE ORDERS OF THE LD. CIT(A) PASSED U/S 263 OF THE ACT. RATHER THE ASSESSING OFFICER WAS BOUND TO FRAME THE ASSESSMENT AFRESH UN TIL AND UNLESS THE SAID ORDER OF THE COMMISSIONER HAS BEEN STAYED OR SET ASIDE B Y ANY HIGHER FORUM. HENCE, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS N OT REQUIRED TO TAKE FRESH APPROVAL OF THE JCIT BEFORE PASSING THE FRESH ORDER IN COMPLIANCE OF THE ORDERS OF THE COMMISSIONER OF INCOME TAX. THE IMPUGNED ORD ERS OF THE LD. CIT(A) ARE, THUS, NOT SUSTAINABLE IN THE EYES OF LAW AND T HE SAME ARE ACCORDINGLY SET 4 ASIDE. THE MATTER IN BOTH THE APPEALS IS RESTORED TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE CASE ON MERITS IRRESPECTIVE OF THE FACT THAT WHETHER THE PERMISSION U/S 153D WAS TAKEN OR NOT BEFORE PASSIN G THE FRESH ASSESSMENT ORDER BY THE ASSESSING OFFICER AS PER THE DIRECTIONS OF T HE LD. CIT. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 02.01.2017. SD/- SD/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 5 TH JANUARY, 2017 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR