Gulab Maharu Badgujar (HUF), Thane V. Additional Commissioner of Income-tax, Nashik

ITA 765/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1911 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 31-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Assessment record; Set aside
• Section: 143(3); 263

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / ITA NOS.765 & 768/PUN/2017 / ASSESSMENT YEARS : 2006-07 & 2011-12. GULAB MAHARU BADGUJAR (HUF), 204, PASHUPATINATH, C-02, B-WING, MAHADEV, NASHIK SANKALP COMPLEX, GANDHAR VILLAGE NEAR KHADALPADE CHOWK, KALYAN (W), THANE 421 301. PAN : AAEHG6745C. . / APPELLANT V/S THE ASST. C OMMISSIONER OF IN COME - TAX , CENTRAL CIRCLE 2, NASHIK. . / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE. REVENUE BY : SHRI RAJESH GAWALI. / ORDER PER ANIL CHATURVEDI, AM : 1. THESE TWO APPEALS FILED BY THE ASSESSEE ARE EMANATING OUT OF THE CONSOLIDATED ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) 12, PUNE DATED 11.01.2017 FOR A.YS. 2006-07 AND 2008-09 TO 2011-12. 2. BEFORE US, AT THE OUTSET, BOTH THE PARTIES SUBMITTED T HAT THOUGH THE APPEALS FILED BY THE ASSESSEE ARE FOR TWO DIFFERENT ASSESSM ENT YEARS BUT THE FACTS AND ISSUES INVOLVED IN BOTH THE APPEALS ARE IDENTICAL EXCEPT FOR THE ASSESSMENT YEAR AND THE AMOUNTS INVOLVED AND THEREFOR E THE SUBMISSIONS MADE BY THEM WHILE ARGUING ONE APPEAL WOULD BE EQUALLY A PPLICABLE TO THE OTHER APPEAL ALSO AND THUS BOTH THE APPEALS CAN BE HE ARD TOGETHER. IN VIEW OF THE AFORESAID SUBMISSIONS OF BOTH THE PARTIES, WE, FOR THE SAKE OF / DATE OF HEARING : 17.06.2019 / DATE OF PRONOUNCEMENT: 27.06.2019 2 ITA NOS.765 & 768/PUN/2017 CONVENIENCE, PROCEED TO DISPOSE OF BOTH THE APPEALS BY A CONSOLIDATED ORDER BUT HOWEVER, PROCEED WITH NARRATING THE FACTS IN ITA NO.765/PUN /2017 FOR ASSESSMENT YEAR 2006-07. 3. THE SOLE GROUND RAISED BY THE ASSESSEE IN A.Y. 765/P UN/2017 FOR A.Y. 2006-07 READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LOWER AUTHORITIES HAVE ERRED IN MAKING AN ADDITION OF RS.19,00,000/- BY REJECTING APPELLANTS CONTENTION AND ALSO BY REJECTING THE DOCUMENTARY EV IDENCES ON RECORD, THE ADDITION BEING ARBITRARY AND BASED ON SURMISES AND GUESSWORK, SAME IS BAD IN LAW AND ENTIRE ADDITION NEEDS TO BE DELETED. 4. SIMILAR GROUND HAS BEEN RAISED BY THE ASSESSEE IN ITA NO.768/PUN/2017 FOR A.Y. 2011-12. 5. FIRST WE SHALL TAKE UP APPEAL IN ITA NO.765/PUN/2017 FO R A.Y. 2006-07. 6. BEFORE US, LD.A.R. SUBMITTED THAT INITIALLY ORDER U/S 143 (3) R.W.S. 147 OF THE ACT WAS PASSED BY AO ON 14.02.2014. THEREAFT ER LD.CIT CALLED FOR THE ASSESSMENT RECORDS AND AFTER EXAMINATION OF ASSE SSMENT RECORDS, HE CAME TO THE CONCLUSION THAT THE ASSESSMENT ORDER P ASSED BY AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. HE ACCORDINGLY VIDE ORDER DATED 19.03.2015 PASSED U/S 263 OF THE ACT, SET A SIDE THE ORDER OF AO AND DIRECTED HIM TO REFRAME THE ASSESSMENT AS PER THE DIRECTIONS CONTAINED THEREIN. AGAINST THE ORDER PASSED BY LD.CIT U/S 263 OF THE ACT WHEREIN HE HAD SET ASIDE THE ORDER OF AO, ASSESSEE HAD CARRIED THE MATTER BEFORE THE TRIBUNAL. HE SUBMITTED THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DATED 03.05.2019 IN ITA NO.798 & 79 9/PUN/2015 HELD THAT REVISIONARY PROCEEDINGS EXERCISED BY LD.CIT TO BE NOT CORRECT AND ACCORDINGLY SET ASIDE THE ORDER OF LD.CIT. HE PLACED ON RECORD THE COPY OF 3 ITA NOS.765 & 768/PUN/2017 THE AFORESAID ORDER OF THE TRIBUNAL AND POINTED TO THE RE LEVANT FINDINGS OF THE TRIBUNAL. IN SUCH A SITUATION, HE SUBMITTED THAT TH E CONSEQUENTIAL ORDER PASSED BY THE AO DOES NOT SURVIVE. HE THEREFORE SUBMITTED THAT IMPUGNED CONSEQUENTIAL ORDER BE SET ASIDE AS IT DOES NOT SURVIVE. LD. D.R. ON THE OTHER HAND DID NOT CONTROVERT THE SUBMISSIONS M ADE BY LD.A.R. BUT HOWEVER SUPPORTED THE ORDER OF LOWER AUTHORITIES. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT IN THE PRESENT CA SE LD.CIT VIDE ORDER DT.19.03.2015 PASSED U/S 263 OF THE ACT HAD SET ASIDE TH E ORDER PASSED BY AO U/S 143(3) R.W.S. 147 OF THE ACT. AGAINST THE ORDER PA SSED BY LD.CIT PASSED U/S 263 OF THE ACT FOR A.YS 2006-07 AND 2011-12 , ASSESSEE HAD CARRIED THE MATTER BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE ORDER DT.03.05.2019 HAD HELD THE REVISIONARY PROCEEDINGS EXERCISE D BY LD.CIT TO BE NOT CORRECT AND THEREFORE HAD SET ASIDE THE ORDE R PASSED BY CIT U/S 263 OF THE ACT FOR BOTH THE YEARS. IN SUCH A SITUATION, WHEN THE ORIGINA L ORDER OF LD.CIT PASSED U/S 263 OF THE ACT HAS BEEN SET ASIDE, T HE CONSEQUENTIAL ORDER PASSED BY THE AO U/S 143(3) R.W.S. 263 OF THE ACT DOES NOT SURVIVE. THUS, THE GROUND OF THE ASSESSEE IN ITA NO.765/PUN/201 7 FOR A.Y. 2006- 07 IS ALLOWED. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IN ITA NO.765 /PUN/2017 FOR A.Y. 2006-07 IS ALLOWED. 9. NOW, WE TAKE UP ASSESSEES APPEAL IN ITA NO.768/PUN/2 017 FOR A.Y. 2011-12. 9.1. AS FAR AS THE GROUND RAISED IN APPEAL IN ITA NO.768 /PUN/2017 FOR A.Y. 2011-12 IS CONCERNED, IN VIEW OF THE SUBMISSION OF BOTH THE PARTIES 4 ITA NOS.765 & 768/PUN/2017 THAT THE FACTS OF THE CASE IN THE YEAR BEING IDENTICAL TO THE FACTS AN D ISSUE OF THE CASE IN ITA NO.765/PUN/2017 FOR A.Y. 2006-07, WE TH EREFORE FOR THE REASONS STATED HEREIN WHILE DISPOSING OF THE APPEAL IN ITA NO.765/PUN/2017 FOR A.Y. 2006-07 AND FOR SIMILAR REASONS H OLD THAT THE CONSEQUENTIAL ORDER PASSED BY THE AO U/S 143(3) R.W.S. 26 3 OF THE ACT DOES NOT SURVIVE. THUS, THE GROUND OF ASSESSEE IS IN ITA NO.768/PUN/2 017 FOR A.Y. 2011-12 IS ALLOWED. 10. TO SUM UP, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED . ORDER PRONOUNCED ON 27 TH DAY OF JUNE, 2019. SD/- SD/- ( VIKAS AWASTHY ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 27 TH JUNE, 2019. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-1 KOLHAPUR. PR. CIT KOLHAPUR. '#$ %%&',) &', / DR, ITAT, A PUNE; $,-./ GUARD FILE. / BY ORDER // TRUE COPY // /01%2&3 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.