M/s. Khivraj Automobiles Ltd., CHENNAI V. ACIT, CHENNAI

ITA 807/CHNY/2009

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5719 (ITAT-CHENNAI)
• Duration Of Justice: 8 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 26-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S BHARATH
• Assessee Lawyers: N DEVANATHAN
• Section: 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI . , ' , % & BEFORE SHRI ABRAHAM P.GEORGE, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ./ ITA NO.807/MDS/2009 %' ' /ASSESSMENT YEAR: 2004-05 M/S.KHIVRAJ AUTOMOBILES LTD., 617, ANNA SALAI, CHENNAI-600 002. VS. THE ASST. COMMISSIONER OF- INCOME TAX, COMPANY CIRCLE-II(4), I.T.DEPT, 121, UG SALAI, CHENNAI-34 [PAN: AAACK 9247 L ] ( ( /APPELLANT) ( )*( /RESPONDENT) ./ ITA NO.808/MDS/2009 %' ' /ASSESSMENT YEAR: 2004-05 M/S.KHIVRAJ MOTORS (P) LTD., 623, ANNA SALAI, CHENNAI-600 002. VS. THE ASST. COMMISSIONER OF- INCOME TAX, COMPANY CIRCLE-II(4), I.T.DEPT, 121, UG SALAI, CHENNAI-34 [PAN: AAACK 2572 Q ] ( ( /APPELLANT) ( )*( /RESPONDENT) ASSESSEE BY : MR.N.DEVANATHAN, ADV. DEPARTMENT BY : MR.S.BHARATH, CIT , /DATE OF HEARING : 30.11.2017 , /DATE OF PRONOUNCEMENT : 05.12.2017 ITA NOS.807 & 808/MDS/2009 :- 2 -: / O R D E R PER GEORGE MATHAN , JUDICIAL MEMBER : THESE ARE TWO APPEALS FILED BY THE ASSESSEES. ITA NO.807/MDS/2009 IS AN APPEAL FILED BY M/S.KHIVRAJ A UTOMOBILES LTD., AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, CHENNAI, PASSED U/S.263 IN C.NO.218/CIT-I/13/263/20 08-09 DATED 27.03.2009 FOR THE AY 2004-05 AND ITA NO.808/MDS/20 09 IS AN APPEAL FILED BY M/S.KHIVRAJ MOTORS PVT. LTD., AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, CHENNAI, PA SSED U/S.263 IN C.NO.218/CIT-I/14/263/2008-09 DATED 27.03.2009 FOR THE AY 2004-05. 2. SHRI S.BHARATH, CIT., REPRESENTED ON BEHALF OF T HE REVENUE AND SHRI N.DEVANATHAN, ADV., REPRESENTED ON BEHALF OF THE AS SESSEE. 3. AS BOTH THE APPEALS ARE RELATED TO THE SAME GROU P OF ASSESSEES AND ARE ON IDENTICAL ISSUES, BOTH ARE BEING DISPOSED OF BY THIS COMMON ORDER. 4. IT WAS SUBMITTED BY THE LD.AR THAT THE LD.CIT(A) HAD INVOKED THE POWERS U/S.263 TO REVISE ASSESSMENT ORDERS U/S.143( 3) ON 26.12.2006 IN THE CASE OF M/S.KHIVRAJ MOTORS PVT. LTD., AND ON 28 .11.2006 IN THE CASE OF M/S.KHIVRAJ AUTOMOBILES LTD. IT WAS A SUBMISSION T HAT LD.CIT(A) FAILED TO APPRECIATE THAT ALL THE ISSUES RAISED IN SEC.263 PR OCEEDINGS HAVE BEEN CONSIDERED BY THE AO IN THE COURSE OF THE ASSESSMEN T WHEN COMPLETING ITA NOS.807 & 808/MDS/2009 :- 3 -: THE SCRUTINY ASSESSMENT U/S.143(3). IT WAS A SUBMI SSION THAT THE ORDER OF THE LD.CIT(A) PASSED U/S.263 IN BOTH THE CASES WERE LIABLE TO BE ANNULLED. 5. IN REPLY, THE LD.DR DREW OUR ATTENTION TO THE AS SESSMENT ORDERS PASSED BY THE AOS. IN THE CASE OF M/S.KHIVRAJ AUTO MOBILES LTD., THE LD.DR DREW OUR ATTENTION TO PAGE NOS.47 TO 49 OF TH E PAPER BOOK WHICH IS A COPY OF THE ASSESSMENT ORDER PASSED U/S.143(3) ON 28.11.2006. IT WAS A SUBMISSION THAT NONE OF THE ISSUES HAD BEEN CONSI DERED NOR DISCUSSED IN THE ASSESSMENT ORDER. IT WAS A SUBMISSION THAT THE ASSESSMENT ORDER WAS IN TWO PAGES WITHOUT ANY DISCUSSIONS. THE AS SESSMENT ORDER IN THE CASE OF M/S.KHIVRAJ MOTORS PVT. LTD., THE LD.DR DRE W OUR ATTENTION TO PAGE NOS.62 & 63 OF THE PAPER BOOK AGAIN TO SUBMIT THAT NONE OF THE ISSUES HAD BEEN DISCUSSED IN THE ASSESSMENT ORDER AND THE ASSESSMENT ORDER WAS A NON-SPEAKING ORDER WHICH CONTAINED ONLY TWO P AGES. IT WAS A SUBMISSION THAT THE ORDER PASSED U/S.263 WAS LIABLE TO BE UPHELD. HE RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF M/S.TOYOTA MOTOR CORPORATION 306 ITR 49 (DEL). IT WAS ALSO SUBMISSION THAT THE ORDER OF THE HONBLE DELHI HIGH COURT HAD BEEN APPROVED BY THE HONBLE SUPREME COURT IN CIVIL APPEAL NO.5313 OF 20 08 DATED 25.08.2008. IT WAS A SUBMISSION THAT THE ORDER OF THE LD.CIT(A) PASSED U/S.263 WAS LIABLE TO BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ASSESSMENT ORDER PASSED U/S.263 CLEARLY SHOWS THAT THE ASSESSMENT ITA NOS.807 & 808/MDS/2009 :- 4 -: ORDERS PASSED BY AO ARE NON-SPEAKING ORDERS. THERE IS NO DISCUSSION NOR IS THERE ANY REFERENCE TO ANY OF THESE ISSUES WHICH HAVE BEEN RAISED IN THE ORDER PASSED U/S.263 BY THE LD.CIT(A). A PERUSAL O F THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF M/S.TOYOTA MOTOR CORPORATION REFERRED TO SUPRA CLEARLY SHOWS THAT - IT IS ALSO NECESSARY FOR THE PARTIES TO KNOW THE R EASONS THAT HAVE WEIGHED WITH THE ADJUDICATING AUTHORITY IN COMING TO A CONCLUSION. T HE ORDER PASSED BY THE ASSESSING OFFICER SHOULD BE A SELF-CONTAINED ORDER GIVING THE RELEVAN T FACTS AND REASONS FOR COMING TO THE INCLUSION BASED ON THOSE FACTS AND LAW. WE FIND THAT THE ORDER PASSED BY THE ASSESSING OFFIC ER IS CRYPTIC, TO SAY THE LEAST, AND IT CANNOT BE SUSTAINED. THE TRIBUNAL CANNOT SUBSTITUT E ITS OWN REASONING TO JUSTIFY THE ORDER PASSED BY THE ASSESSING OFFICER WHEN THE ASSESSING OFFICER HIMSELF DID NOT GIVE ANY REASON IN THE ORDER PASSED BY HIM. UNDER THE CIRCUMSTANCES , WE ANSWER THE QUESTION IN THE AFFIRMATIVE, IN FAVOUR OF THE REVENUE AND AGAINST T HE ASSESSEE AND REMAND THE MATTER HACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE I SSUE AFRESH IN TERMS OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX UNDER SECTION 263 OF THE ACT. 7. A PERUSAL OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF M/S.TOYOTA MOTOR CORPORATION CLEARLY SHOWS THAT THE HONBLE SUPREME COURT HAS APPROVED THE ORDER OF THE HONBLE DELHI H IGH COURT REFERRED TO SUPRA. THIS BEING SO, AS IT IS NOTICED THAT THE AS SESSMENT ORDERS PASSED BY THE AO ARE NON-SPEAKING ORDERS AND CRYPTIC. THE LD.CIT IS RIGHT IN INVOKING HIS POWERS U/S.263 AND WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LD.CIT(A) WHICH CALLS FOR ANY INTERFERENCE AT T HIS STAGE. 8. WE ARE GIVEN TO UNDERSTAND THAT THE ORDER OF THE LD.CIT(A) PASSED U/S.263 HAS BEEN GIVEN EFFECT TO AND ALL THE MATTER S HAVE ALSO REACHED THE TRIBUNAL AND HAS BEEN RESTORED BACK TO THE AO WITH DIRECTIONS. AS CONSEQUENTIAL ORDERS HAVE ALSO BEEN PASSED, WE ARE OF THE VIEW THAT THE APPEALS FIELD BY THE ASSESSEES AGAINST SEC.263 ORDE RS HAVE BECOME ITA NOS.807 & 808/MDS/2009 :- 5 -: INFRUCTUOUS AND EVEN ON THIS GROUND, THE APPEALS FI LED BY THE ASSESSEE ARE DISMISSED. 9. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE ES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 05, 2017, AT CHENNAI. SD/- SD/- ( . ) ( ABRAHAM P GEORGE ) /ACCOUNTANT MEMBER ( ' ) (GEORGE MATHAN) % /JUDICIAL MEMBER /CHENNAI, 1 /DATED: DECEMBER 05, 2017. TLN , )%23 43 /COPY TO: 1. ( /APPELLANT 4. 5 /CIT 2. )*( /RESPONDENT 5. 3 )%% /DR 3. 5 ( ) /CIT(A) 6. ' /GF