Parrisons Roller Flour Mills P.Ltd, Calicut V. ACIT, Calicut

ITA 846/COCH/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4411 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 03-05-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 24-10-2007
• Court: TRIBUNAL
• Department Lawyers: DR BABU JOSEPH
• Assessee Lawyers: V SATYANARAYANANCA
• Keywords: Period of limitation
• Section: 153A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T.A.NO.846/COCH/2007 ASSESSMENT YEAR:2000-01 PARRISONS ROLLER FLOUR MILLS P.LTD., CHEROOTTY ROAD, CALICUT. PA NO. AACCP 1589 L VS. THE A SST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, CALICUT. (APPELLANT) ( RESPONDENT ) APPELLANT BY SHRI V. SATYANARAYANAN,CA RESPONDENT BY DR. BABU JOSEPH, SR.D.R. O R D E R PER N.VIJAYAKUMARAN,J.M: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME-TAX, CENTRAL, KOC HI, PASSED UNDER SECTION 263 OF THE I.T.ACT, DATED 21-0 8-2007. 2. THE FIRST OBJECTION IN GROUND NO.2 IS REGARDING THE PROCEEDINGS U/S.263 OF THE I.T. ACT. IT IS THE CO NTENTION OF THE ASSESSEE THAT 263 PROCEEDING IS BARRED BY LIMIT ATION, SINCE IT HAS BEEN ISSUED BEYOND TWO YEARS. 3. THE ASSESSEE IS A COMPANY, WHICH IS ENGAGED IN T HE BUSINESS OF MANUFACTURE AND SALE OF WHEAT PRODUCTS. DURING ITA NO. 846/COCH/2007 2 THE FINANCIAL YEAR ENDED WITH 31-3-2000 RELEVANT TO THE ASSESSMENT YEAR 2000-01, THE ASSESSEE COMPANY FILED RETURN OF INCOME ON 8-4-2001. INITIALLY, THE RETURN WAS PROCESSED U/S.143(1) AND REGULAR ASSESSMENT U/S.143(3) WAS COMPLETED ON 06-03-2003 DETERMINING THE TOTAL INCOM E AT RS.86,91,590. SUBSEQUENTLY, DURING THE COURSE OF SEARCH CONDUCTED AT THE PREMISES OF THE ASSESSEE COMPANY A ND ITS DIRECTORS, 153A ASSESSMENT WAS FRAMED VIDE ORDER DA TED 17- 03-2006. 4. THE LD. COUNSEL FOR THE ASSESSEE, BY PRODUCING T HE ORIGINAL ASSESSMENT WHICH WAS PASSED ON 06-03-2003 U/S.143(3), WHICH IS PLACED AT PAGES 3 & 4 OF THE P APER BOOK, SUBMITS THAT THE DISPUTED DEDUCTION U/S.80IB, WHICH IS AVAILABLE IN THE COMPUTATION OF INCOME IN THE REGUL AR ASSESSMENT ORDER AT PAGE NO.2 UNDER THE HEAD INCOM E AS SHOWN IN THE STATEMENT OF INCOME FILED ALONG WITH T HE RETURN, IT IS SHOWN AS RS.82,90,446/-. THE LD. CO UNSEL INVITED OUR ATTENTION TO ASSESSEES PAPER BOOK PAGE NO.14, WHICH IS THE STATEMENT OF TOTAL INCOME FOR THIS ASS ESSMENT YEAR, THE SAME FIGURE OF RS.82,90,446/- WAS ARRIVED AT AFTER ALLOWING DEDUCTION U/S.80IB @ 30%. THEREFORE, TH E LD. COUNSEL WOULD CONTEND THAT THIS WAS ALREADY CONSIDE RED AND ITA NO. 846/COCH/2007 3 ALLOWED BY THE ASSESSING OFFICER IN THE REGULAR ASS ESSMENT WHICH WAS PASSED ON 06-03-2003. REFERRING TO SECT ION 263, THE LD. COUNSEL FOR THE ASSESSEE WOULD SUBMIT THAT TIME FOR INITIATION OF ACTION U/S.263 IS FROM THE ORDER OF T HE ASSESSING OFFICER UNDER THE REGULAR ASSESSMENT, AS THE 263 JU RISDICTION RUNS FROM THE DATE OF PROCESSING THE RETURN AS WELL AS FROM THE DATE OF PASSING THE REGULAR ASSESSMENT ON THE D ISPUTED ISSUE, THE TIME LIMIT AVAILABLE TO THE LD. COMMISSI ONER WOULD BE TWO YEARS. AS PER SUB SECTION (2) TO SECTION 2 63, NO ORDER SHALL BE MADE UNDER SUB SECTION (1) AFTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHI CH THE ORDER SOUGHT TO BE REVISED WAS PASSED. THIS RESTR ICTION WAS IMPOSED BY THE TAXATION LAWS AMENDMENT ACT 1984 W.E .F. 01-10-1984. SUB SECTION (3) TO SECTION 263 WILL N OT APPLY AS IT IS NOT AN ASSESSMENT ORDER PASSED IN CONSEQUE NCE TO GIVING EFFECT OR TO GIVE EFFECT TO THE FINDING OR D IRECTION. THEREFORE, THE LD. COUNSEL FOR THE ASSESSEE WOULD S UBMIT THAT FROM THE END OF THE FINANCIAL YEAR WHICH THE O RDER SOUGHT TO BE REVISED WAS PASSED AND THE ORDER PASSE D U/S.263 ORDER WHICH IS DATED 21-08-2007 IS CLEARLY BEYOND TWO YEARS PERIOD AS ENVISAGED UNDER SUB CLAUSE (2) TO SECTION 263. ON THE IDENTICAL CIRCUMSTANCES, THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE HONBLE ITA NO. 846/COCH/2007 4 SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME -TAX VS. ALAGENDRAN FINANCE (2007) 293 ITR 01 WHEREIN IT HAS BEEN HELD THAT ACTION U/S.263 CANNOT BE BEYOND THE PERIOD OF LIMITATION AS ENVISAGED IN SUB SECTION (2) TO S ECTION 263 OF THE I.T.ACT. THE LD. COUNSEL FOR THE ASSESSEE FURTHER RELIED ON THE FOLLOWING DECISIONS: 1. MALABAR INDUSTRIAL CO. LTD. VS. CIT - 243 ITR 83 (S C); 2. CIT VS. MAX INDIA LTD. -295 ITR 282 (SC); 3. COMMISSIONER OF INCOME-TAX VS GABRIEL INDIA LTD. 203 ITR 108 (BOM); 4. PAUL MATHEWS & SONS VS. CIT -263 ITR 101 (KER); 5. CIT VS. MUNJAL CASTINGS -303 ITR 23 ( P&H) AND 6. CIT VS. AMALGAMATIONS LTD. 238 ITR 963. 5. WE HAVE HEARD THE LD. SR. D.R. AND CONSIDERED TH E ARGUMENTS OF BOTH SIDES INCLUDING THE PRECEDENTS. WE FIND THAT THE DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE FULLY SUPPORTS. THEREFORE, RESPECTFULLY FOLLOWING THOSE DECISIONS, WE HAVE NO HESITATION IN SETTING A SIDE THE 263 ORDER PASSED BY THE LD. COMMISSIONER OF INCOME- TAX, CENTRAL, KOCHI DATED 21-8-2007 FOR THE ASSESSMENT Y EAR 2000-01. ITA NO. 846/COCH/2007 5 6. AS WE HAVE ALREADY QUASHED THE PROCEEDINGS U/S.2 63, ALL OTHER GROUNDS URGED FROM GROUND NOS. 3 TO 7 ARE DECIDED IN FAVOUR OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED, SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 05 TH MAY,2010. PM. COPY FORWARDED TO: 1. PARRISONS ROLLER FLOUR MILLSP.LTD., CHEROOTTY ROAD, CALICUT. 2. THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRC LE,CALICUT. 3. COMMISSIONER OF INCOME-TAX,CENTRAL.KOCHI. 4. DR