ACIT, Circle-2(3), Hyderabad V. M/s. Gati Limited, Secunderabad

ITA 862/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53618 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 10-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA SEKHARAM
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.862/HYD/2011 : ASSESSMENT YEAR 2005-0 6 ASST COMMISSIONER OF INCOME - TAX CIRCLE 2(3), HYDERABAD V/S. M/S. GATI LIMITED, HYDERABAD ( PAN AABCG 3709 Q ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.S.CHANDRASEKHARAM RESPONDENT BY : SHRI Y.RATNAKAR DATE OF HEARING 11.8.2011 DATE OF PRONOUNCEMENT 16.9.2011 O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 2005-06 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME-TAX (APPEALS). 2. GROUNDS OF APPEAL OF THE REVENUE ARE AS UNDER- 1. THE LEARNED CIT(A) ERRED IN LAW AND FACTS OF THE CA SE IN ALLOWING THE APPEAL CONTRAVENING THE PROVISIONS OF SECTION 1 15VK OF THE INCOME-TAX ACT, 1961. 2. THE LEARNED CIT(A) OUGHT TO HAVE OBSERVED THAT THE ASSESSEE HAS FAILED TO ARRIVE AT PROFITS ON SALE OF SHIPS TO BE WORKED OUT SEPARATELY IN COMPLIANCE OF PROVISIONS OF SECTION 1 15VK OF THE INCOM E TAX ACT, 1961. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBM ITTED THAT THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED BY THE CIT(A) IN ITA NO.862/H/2011 M/S. GATI LIMITED, HYDERABAD 2 CONTRAVANTION OF THE PROVISIONS OF S.115VK OF THE I NCOME-TAX ACT, 1961. HE SUBMITTED THAT IN ACCORDANCE WITH THE PRO VISIONS OF S.115VK OF THE ACT, THE ASSESSEE WAS OBLIGED TO ARR IVE AT THE FIGURE OF PROFIT ON SALE OF SHIP(S) AND SHOULD HAVE WORKED OUT THE SAME SEPARATELY AS PER THE PROVISIONS OF THE ACT, WHICH THE ASSESSEE HAS FAILED, AND THEREFORE, THE MATTER MAY BE RESTORED T O THE FILE OF THE ASSESSING OFFICER FOR RECTIFICATION. 4. THE LEARNED COUNSEL FOR THE ASSESSEE HAS OPPO SED THE SUBMISSIONS OF THE LEARNED DEPARTMENTAL REPRESENTAT IVE. HE SUBMITTED THAT THE GROUND OF APPEAL OF THE REVENUE AND THE SUBMISSIONS MADE BY THE LEARNED DEPARTMENTAL REPRES ENTATIVE ARE OF ACADEMIC VALUE ONLY FOR THE REASON THAT THE CIT( A) HAS HELD THAT THE ACTION OF THE ASSESSING OFFICER IN REOPENING TH E ASSESSMENT UNDER S.147 OF THE ACT WAS NOT VALID AND HAS ACCORDINGLY CANCELLED THE SAME. THE REVENUE HAS NOT PREFERRED ANY GROUND IN T HIS APPEAL AGAINST THE ORDER OF THE CIT(A) IN HOLDING THE RE-A SSESSMENT PROCEEDINGS AS INVALID. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE CIT(A) HAS VACATED THE ORDER OF ASSESSMENT PA SSED BY THE ASSESSING OFFICER UNDER S.143(3) READ WITH S.147 OF THE ACT, BY HOLDING THAT THE REOPENING OF THE ASSESSMENT UNDER S.147 OF THE ACT WAS NOT IN ACCORDANCE WITH LAW. THE REVENUE HAS NOT PREFERRED ANY GROUND IN THIS APPEAL AGAINST THE DECISION OF THE C IT(A) ON THAT ASPECT. ACCORDINGLY, THE ORDER OF THE CIT(A) HOLDI NG THE RE- ASSESSMENT PROCEEDINGS UNDER S.147 AS BAD IN LAW, H AS BECOME FINAL AND CONSEQUENTLY, THE GROUNDS OF APPEAL RAISED BY T HE REVENUE IN THE PRESENT APPEAL BEFORE US ARE MERELY ACADEMIC IN NA TURE. IN THESE ITA NO.862/H/2011 M/S. GATI LIMITED, HYDERABAD 3 FACTS, WE HOLD THAT THE APPEAL OF THE REVENUE IS LI ABLE TO BE DISMISSED, AS THE RE-ASSESSMENT PROCEEDING UNDER S. 147 HAS BEEN HELD BY THE CIT(A) AS INVALID, AND THIS ORDER OF TH E CIT(A) TO THAT EFFECT HAS BECOME FINAL. WE ARE NOT ADJUDICATING O N THE MERITS OF THE ISSUES RAISED BY THE REVENUE IN THIS APPEAL, AS THE Y ARE OF ACADEMIC NATURE ONLY. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE COURT ON 16.9.2011 SD/- SD/- (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 16.9.2011 COPY FORWARDED TO: 1. M/S. GATI LIMITED, 1 - 7 - 293, M.G.ROAD, SECUNDERABAD. 2. ASST. COMMISSIONER OF INCOME-TAX CIRCLE 2(3), H YDERABAD. 3. COMMISSIONER OF INCOME - TAX(APPEALS) - VIJAYAWADA 4. COMMISSIONER OF INCOME - TAX II, HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S