ITO, Coimbatore V. Sree Raamu Hotels, Coimbatore

ITA 842/CHNY/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90302 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 03-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: A ARJUNARAJ
• Keywords: Revised return
• Section: 143(3); 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . , ! # , $ & BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./I.T.A.NO. 821/MDS/2013 ( / ASSESSMENT YEAR: 2009-10) SREE RAAMU HOTELS, 65, DAVEY & CO. LANE GEETHA HALL ROAD, COIMBATORE - 641 018. VS INCOME TAX OFFICER, WARD-III(1), COIMBATORE. PAN:AAVFS1374E ( /APPELLANT) ( /RESPONDENT) & ./I.T.A.NO. 842/MDS/2013 ( / ASSESSMENT YEAR: 2009-10) INCOME TAX OFFICER, WARD-III(1), COIMBATORE. VS SREE RAAMU HOTELS, 65, DAVEY & CO. LANE GEETHA HALL ROAD, COIMBATORE-641 018. PAN:AAVFS1374E ( /APPELLANT) ( /RESPONDENT) REVENUE BY : MR. A.V.SREEKANTH, JCIT ASSESSEE BY : MR.A.ARJUNARAJ, C.A. /DATE OF HEARING : 16 TH MARCH, 2015 /DATE OF PRONOUNCEMENT : 17 TH APRIL, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THESE TWO APPEALS ARE FILED BY THE ASSESSEE AND THE REVENUE RESPECTIVELY AGAINST THE ORDER OF THE COMMI SSIONER OF INCOME TAX (APPEALS)-I, COIMBATORE DATED 04.02.2 013 FOR THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE IN ITS APPEAL CHALLENGES THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) ON VARIOUS ISS UES ON 2 ITA NOS.821 & 842 /MDS/2013 MERITS AND ALSO CHALLENGES ISSUE OF NOTICE UNDER SE CTION 148 OF THE ACT BY THE INCOME TAX OFFICER. THE ASSESSEE RAISED ADDITIONAL GROUND UNDER RULE 11 OF APPELLATE TRIBU NAL RULES SEEKING LEAVE OF THIS TRIBUNAL TO ADMIT THE ADDITIO NAL GROUND STATING AS UNDER:- THE INCOME TAX OFFICER, WARD-III(1), COIMBATORE HAS NO JURISDICTION (SINCE THE INCOME RETURNED BY THE ASSESSEE WAS ` 5,30,406/-) AS PER CBDT INSTRUCTIONS AND HENCE NOTICE ISSUED U/S.143(2) AND CONSEQUENT ASSESSMENT ORDER PASSED IS NULL AND VOID. 3. THE ASSESSEE IN ITS ADDITIONAL GROUNDS OF APPEAL IS CHALLENGING THE VERY VALIDITY OF JURISDICTION OF TH E ASSESSING OFFICER IN COMPLETING THE ASSESSMENT. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ABOVE ADDITIONAL GROUND W AS NOT RAISED BEFORE THE COMMISSIONER OF INCOME TAX (APPEA LS) AS THE ASSESSEE WAS NOT PROPERLY GUIDED BY THE COUNSEL WHO REPRESENTED THE MATTER BEFORE THE COMMISSIONER OF I NCOME TAX (APPEALS) AND THE ASSESSEE IS NOT AWARE OF THE PROVISIONS OF THE INCOME TAX ACT. SINCE THE ADDITI ONAL 3 ITA NOS.821 & 842 /MDS/2013 GROUND RAISED BY THE ASSESSEE IS PURE QUESTION OF L AW AND TOUCHING THE VERY JURISDICTION OF THE ASSESSING OFF ICER, HE PRAYS FOR ADMISSION OF THE ADDITIONAL GROUND. 4. DEPARTMENTAL REPRESENTATIVE HAS NO SERIOUS OBJEC TION FOR ADMITTING THE ADDITIONAL GROUND AND HE FURTHER SUBMITS THAT INCOME-TAX OFFICER, WARD-III(1), COIMBATORE HAS JUR ISDICTION TO COMPLETE THE ASSESSMENT. HE PLACES RELIANCE ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF C.K RISHNAN VS. ITO & OTHERS IN W.P.NOS.5792 & 5793 OF 2013 DA TED 27.11.2014. 5. SINCE THE ADDITIONAL GROUND IS RAISED CHALLENGI NG THE VERY VALIDITY OF THE ASSESSMENT ITSELF AND IT IS A VALID GROUND, WE ADMIT THE ADDITIONAL GROUND FILED BY THE ASSESSE E. 6. COUNSEL FOR THE ASSESSEE SUBMITS THAT ASSESSEE F ILED RETURN OF INCOME ON 25.9.2009 ADMITTING INCOME OF ` 5,14,338/- . A NOTICE UNDER SECTION 148 DATED 13.1 0.2010 WAS ISSUED BY THE INCOME TAX OFFICER, WARD-III(1). HE SUBMITS THAT REVISED RETURN WAS FILED ON 25.03.2011 ADMITTING 4 ITA NOS.821 & 842 /MDS/2013 INCOME OF ` 5,30,406/-. LATER ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 30.12.2011 BY THE INCOME TA X OFFICER, WARD-III(1), COIMBATORE. COUNSEL FOR THE A SSESSEE SUBMITS THAT AS PER INSTRUCTION NO.6 /2001 DATED 1 9.10.2001, THE JURISDICTION OF THE ASSESSING OFFICER OF THE A SSESSEE IS VESTED WITH THE ASSISTANT/DEPUTY COMMISSIONER OF IN COME TAX WHERE INCOME RETURNED EXCEEDS ` 5,00,000/- AND IN CASES RETURNED INCOME IS LESS THAN ` 5,00,000/- THE JURISDICTION IS WITH THE INCOME TAX OFFICER. COUNS EL FOR THE ASSESSEE SUBMITS THAT SINCE THE ASSESSEE RETURNED T HE INCOME MORE THAN ` 5,00,000/- THE JURISDICTION TO ASSESS THE RETURN OF THE ASSESSEE VESTS WITH EITHER ASSISTANT OR DEPUTY COMMISSIONER OF INCOME TAX AND NOT WITH THE INCOME -TAX OFFICER, WARD-III(1), COIMBATORE, WHO ASSESSED THE INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10. THUS, HE SUBMITS THAT THE ASSESSMENT ORDER PASSED BY THE INC OME-TAX OFFICER, WARD-III(1), COIMBATORE IS WITHOUT JURISDI CTION AND THEREFORE NULL AND VOID. COUNSEL FOR THE ASSESSEE S UBMITS THAT COMMISSIONER OF INCOME TAX, COIMBATORE TRANSFE RRED THE CASE OF THE ASSESSEE TO INCOME-TAX OFFICER, WAR D-III(1), COIMBATORE WITH EFFECT FROM 7.2.2013 FOR COMPLETION OF THE 5 ITA NOS.821 & 842 /MDS/2013 ASSESSMENT FOR THE ASSESSMENT YEAR 2010-11. HE SUBM ITS THAT PRIOR TO SUCH TRANSFER ORDER, THE JURISDICTION VESTED ONLY WITH EITHER ASSISTANT OR DEPUTY COMMISSIONER OF INC OME TAX AND THEREFORE, THE ASSESSMENT MADE BY INCOME-TAX OF FICER, WARD-III(1), COIMBATORE IS WITHOUT JURISDICTION AND NULL AND VOID. 7. DEPARTMENTAL REPRESENTATIVE PLACING RELIANCE ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CA SE OF C.KRISHNAN VS. ITO (SUPRA) SUBMITS THAT THE HONBLE HIGH COURT HELD THAT BOARDS INSTRUCTION DATED 31.01.201 1 WHICH REVISED THE EARLIER INSTRUCTION AND MONETARY LIMIT FOR ASSESSING CASES TO ASSESSING OFFICERS WAS FOR ADMIN ISTRATIVE CONVENIENCE AND EQUITABLE DISTRIBUTION OF WORKLOAD AND WAS THEREFORE NOT A RIGID LIMIT. THEREFORE, DEPARTMENT AL REPRESENTATIVE SUBMITS THAT IN VIEW OF THE RATIO OF THIS DECISION, INCOME-TAX OFFICER, WARD-III(1), COIMBATO RE HAD JURISDICTION TO PASS ORDER DATED 30.12.2011. 8. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHOR ITIES AND DECISION OF THE MADRAS HIGH COURT RELIED ON BY THE DEPARTMENTAL REPRESENTATIVE AND THE INSTRUCTION ISS UED BY 6 ITA NOS.821 & 842 /MDS/2013 THE BOARD AS RELIED ON BY THE COUNSEL FOR THE ASSES SEE. THE ASSESSEE FOR THE FIRST TIME IS RAISING THE ISSUE OF VERY JURISDICTION OF THE ASSESSING OFFICER IN COMPLETING THE ASSESSMENT OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009- 10, BASED ON THE INSTRUCTION ISSUED BY THE BOARD WH EREIN MONETARY LIMITS PRESCRIBED FOR ASSESSING INCOME OF THE ASSESSEE IN CASE THE INCOME RETURNED IS MORE THAN ` 5,00,000/-, THEN IT SHOULD BE ALLOCATED TO ASSISTAN T / DEPUTY COMMISSIONER OF INCOME TAX AND THOSE BELOW ` 5,00,000/- SHOULD BE ALLOCATED TO INCOME TAX OFFICER. THESE INSTRUCTIONS WERE LATER MODIFIED BY INSTRUCTION NO. 1/2011 DATED 31.01.2011 REVISING THE MONETARY LIMITS WHICH WAS FURTHER CLARIFIED IN INSTRUCTION NO.6/2011 DATED 8. 4.2011. AS THIS ISSUE WAS NOT RAISED BEFORE THE COMMISSIONER O F INCOME TAX (APPEALS), WE FEEL IT APPROPRIATE TO RESTORE TH E APPEAL BACK TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS) WHO SHALL CALL FOR RECORDS OR REMAND REPORT FROM TH E ASSESSING OFFICER TO ASCERTAIN AS TO WHETHER INCOME TAX OFFICER, WARD-III(1), COIMBATORE HAS JURISDICTION T O COMPLETE THE ASSESSMENT OF THE ASSESSEE FOR THE ASSESSMENT Y EAR 2009-10 OR THE ASSISTANT / DEPUTY COMMISSIONER OF I NCOME 7 ITA NOS.821 & 842 /MDS/2013 TAX AS PER INSTRUCTION NO.6/2001 DATED 19.10.2001. THE COMMISSIONER OF INCOME TAX (APPEALS) MAY CALL FOR ENTIRE RECORDS INCLUDING INTERNAL INSTRUCTION IF ANY AND A SCERTAIN THE JURISDICTION OF THE ASSESSING OFFICER OVER THE ASSE SSEE FOR THE ASSESSMENT YEAR 2009-10 AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW, AFTER PROVIDING ADEQUATE OPPOR TUNITY TO THE ASSESSEE. 9. AS WE REMIT THE ISSUE OF VERY JURISDICTION OF TH E ASSESSING OFFICER IN COMPLETING THE ASSESSMENT, WE ARE NOT GOING INTO MERITS OF THE ADDITION/DISALLOWANCE MADE IN THE ASSESSMENT ORDER. SINCE THE JURISDICTION OF THE ASS ESSING OFFICER IN COMPLETING THE ASSESSMENT HAS BEARING ON THE ADDITIONS/DISALLOWANCES MADE IN THE ASSESSMENT ORD ER, WE REMIT ALL THE ISSUES TO THE COMMISSIONER OF INCOME TAX (APPEALS), WHO SHALL DECIDE THOSE ISSUES BASED ON T HE OUTCOME OF DECISION ON JURISDICTION OF THE ASSESSIN G OFFICER IN ASSESSING THE INCOME OF THE ASSESSEE FOR THE ASSESS MENT YEAR 2009-10. 8 ITA NOS.821 & 842 /MDS/2013 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH APRIL , 2015 AT CHENNAI. SD/- SD/- ( ! ) ( $ '! ) ( CHANDRA POOJARI ) ( CHALLA NAGENDRA PRASAD ) ) / ACCOUNTANT MEMBER ' ) / JUDICIAL MEMBER ' /CHENNAI, + /DATED 17 TH APRIL, 2015 SOMU -. /. /COPY TO: 1. ASSESSEE 2. ASSESSING OFFICER 3. 0 () /CIT(A) 4. 0 /CIT 5. . 4 /DR 6. /GF .