Sri Siddaraju, Mumbai V. Addl CIT, Mysore

ITA 903/BANG/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0166 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 21-06-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 10-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S VENKATESAN

Judgement Text

ITA.903/BANG/2015 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'C', BANGALORE SHRI. ABRAHAM P. GEORGE, ACCOUNTANT MEMBER I.T.A NO.903/BANG/2015 (ASSESSMENT YEAR : 2005-06) SHRI. SIDDARAJU, NO.101/2, GURUKAR DEVANNA STREET, FORT MOHALLA, MYSURU .. APPELLANT PAN : AKYPS0517N V. ADDL. COMMISSIONER OF INCOME-TAX, RANGE-2, MYSURU .. RESPONDENT ASSESSEE BY : SHRI. S. VENKATESAN, CA REVENUE BY : SMT. SWAPNA DAS, JCIT HEARD ON : 21.06.2016 PRONOUNCED ON : 29 .07.2016 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : GROUNDS TAKEN BY ASSESSEE IN THIS APPEAL, AGAINST AN ORDER DT.17.11.2008 OF CIT (A), MYSURU IS REPRODUCED HERE UNDER : ITA.903/BANG/2015 PAGE - 2 ITA.903/BANG/2015 PAGE - 3 02. FACTS APROPOS ARE THAT ASSESSMENT WAS ORIGINALL Y COMPLETED ON THE ASSESSEE ON 26.12.2007 FOR THE IMPUGNED ASSESSMENT YEAR INTER ALIA MAKING THE FOLLOWING ADDITIONS : ITA.903/BANG/2015 PAGE - 4 TOTAL .. RS.30,43,685 03. ASSESSEE HAD FILED AN APPEAL AGAINST ABOVE ADDI TIONS WHERE UPON CIT (A) DELETED THE ADDITIONS MENTIONED AT ITEM NO S.1 AND 2 TOTALLING TO RS.4,85,000/- AND SUSTAINED THE BALANCE ADDITIONS T OTALLING TO RS.25,58,685/-. THEREAFTER THE ASSESSEE CHOSE TO M OVE THIS TRIBUNAL. 04. IN FURTHER APPEAL FILED BY THE ASSESSEE BEFORE THE TRIBUNAL AGAINST THE SUSTAINED ADDITION OF RS.25,58,685/- THIS TRIBUNAL RESTORED ALL THE ISSUES RELATING TO THE ADDITIONS MENTIONED AT SL. NOS.3 TO 8 AND RELEVANT PARA 6 TO 11.2 OF THE ORDER OF TRIBUNAL IS REPRODUCED HEREUND ER: ITA.903/BANG/2015 PAGE - 5 ITA.903/BANG/2015 PAGE - 6 ITA.903/BANG/2015 PAGE - 7 ITA.903/BANG/2015 PAGE - 8 ITA.903/BANG/2015 PAGE - 9 ITA.903/BANG/2015 PAGE - 10 05. IT IS TO BE NOTED THAT DEPARTMENT HAD NOT FILED ANY APPEAL AGAINST THE RELIEF OF RS.4,85,000/- GRANTED TO THE ASSESSEE BY THE CIT (A) AND THUS IT HAD BECOME FINAL. THEREAFTER THE AO PASSED AN ORDE R DT.03.12.2009 PURPORTEDLY GIVING EFFECT TO THE DIRECTIONS OF THE TRIBUNAL. SUCH ORDER IS REPRODUCED HEREUNDER: ITA.903/BANG/2015 PAGE - 11 06. SUBSEQUENTLY, THE AO PASSED ANOTHER ORDER U/S.1 43(3) R.W.S.254 OF THE INCOME-TAX ACT, 1961 (THE ACT IN SHORT), ON 14.12.2010 AFTER EXAMINING THE ISSUES SET ASIDE BY THE TRIBUNAL TO H IM. PURSUANT TO SUCH PROCEEDINGS AN ORDER WAS PASSED AND THE ADDITIONS A S MADE IN THE ORIGINAL ASSESSMENT ORDER, APPEARED HERE ALSO. 07. ASSESSEE ONCE AGAIN MOVED THE CIT (A). ONE OF THE ARGUMENTS RAISED BY ASSESSEE BEFORE THE CIT (A) WAS THAT AO H AD ON 03.12.2009 GIVEN EFFECT TO THE TRIBUNAL DIRECTIONS THEREBY BEC OMING FUNCTUS OFFICIO. THUS ACCORDING TO THE ASSESSEE THIRD ROUND OF PROCE EDINGS TAKEN UP BY THE ITA.903/BANG/2015 PAGE - 12 AO CULMINATING IN THE ORDER DT.14.12.1010 WAS NEITH ER AN ASSESSMENT ORDER NOR AN ORDER GIVING EFFECT TO THE TRIBUNAL DIRECTIO N. AS PER THE ASSESSEE, THERE WAS NO POWER WITH THE AO TO PASS SUCH ORDERS UNDER ANY OF THE PROVISIONS OF THE ACT. HOWEVER CIT (A) WAS NOT IM PRESSED BY THE ABOVE ARGUMENTS. ACCORDING TO HIM THE FIRST ORDER DT.03. 12.2009 WAS ONLY TO GIVE EFFECT TO THE RELIEF ALLOWED BY LOWER AUTHORITIES. SECOND ORDER IN WHICH ADDITIONS WERE MADE, WAS PASSED PURSUANT TO DIRECTI ONS OF THIS TRIBUNAL, AFTER EXAMINING THE MATTERS SET ASIDE BY IT. THUS ACCORDING TO CIT (A), ORDERS PASSED BY THE AO WERE IN ACCORDANCE WITH LAW AND IN CONFORMITY WITH THE DIRECTION OF THE TRIBUNAL. HOWEVER CIT (A ) DID NOT ADJUDICATE ON THE MERITS OF THE ADDITIONS MADE BY THE AO, GIVING A REASON THAT THE ISSUES RELATING TO THESE WERE DULY ADDRESSED BY THE AO IN THE ASSESSMENT ORDER AND ASSESSEE COULD NOT REBUT ANY OF SUCH FINDINGS. 08. NOW BEFORE US, LD. AR STRONGLY ASSAILING THE OR DER OF CIT (A) REITERATED THE SAME CONTENTIONS TAKEN BEFORE THE CI T (A). ACCORDING TO HIM, ONCE THE ORDER GIVING EFFECT TO APPELLATE DIRE CTION WAS PASSED BY THE AO ON 03.12.2009, THERE WAS NOTHING MORE LEFT FOR H IM TO DO. AS PER THE LD. AR, AO HAD NOT ISSUED ANY NOTICE U/S.148 OR U/ S.154 OF THE ACT. THUS THE ASSUMPTION OF JURISDICTION FOR MAKING A SUBSEQU ENT ASSESSMENT WAS ITA.903/BANG/2015 PAGE - 13 BEYOND THE POWERS VESTED ON AN AO UNDER THE ACT, AS PER THE LD. AR. THUS ACCORDING TO HIM, THE PROCEEDINGS CULMINATING IN THE ORDER DT.14.12.2010 WAS ILLEGAL WAS VOID. 09. PER CONTRA, LD. DR SUPPORTED THE ORDERS OF AUTH ORITIES BELOW. 10. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL CONTENTIONS. PURPORTED ORDER DT.03.12.2009 GIVING EFFECT TO DIRE CTION OF THE TRIBUNAL HAS BEEN REPRODUCED BY US AT PARA FIVE ABOVE. ONE OF T HE ITEMS ON WHICH RELIEF IS STATED TO HAVE BEEN ALLOWED BY THE TRIBUNAL, IN THE ABOVE ORDER IS A SUM OF RS.25,58,685/-. HOWEVER, RELEVANT PART OF THE T RIBUNAL ORDER DT.30.10.2009 HAS BEEN REPRODUCED BY US AT PARA FOU R ABOVE. IT IS EVIDENT THAT TRIBUNAL HAD SET ASIDE ALL THE ISSUES ASSAILED BY THE ASSESSEE BEFORE IT. RELIEF GIVEN BY CIT (A) COMING TO RS.4,85,000/- WAS NEVER CHALLENGED BY THE DEPARTMENT BEFORE THE TRIBUNAL. THUS IN OUR OP INION THE ORDER DT.03.12.2009 OF THE AO DID NOT GIVE EFFECT TO THE TRIBUNAL ORDER, IN THE SENSE THAT THE SET ASIDE ISSUES WERE NOT EXAMINED B Y THE AO. THIS WAS TAKEN UP BY THE AO AT A LATER INSTANCE AND THE RESU LTANT ORDER WAS PASSED BY HIM ON 14.12.2010. NO DOUBT THE ORDER MENTIONS AS ONE PASSED U/S.143(3) R.W.S. 254 OF THE ACT. IT IS CLEAR FROM THE SAID O RDER THAT AO HAD EXAMINED ALL THE ISSUES WHICH WERE SET ASIDE BY THE TRIBUNAL . HENCE, WE CANNOT SAY ITA.903/BANG/2015 PAGE - 14 THAT THE ORDER PASSED BY THE AO PURSUANT TO SUCH PR OCEEDINGS WERE INVALID OR BAD IN LAW. WE DO NOT FIND ANY REASON TO INTERF ERE WITH THE ORDER OF CIT (A). NEVERTHELESS WE ALSO FIND THAT CIT (A) HAD NO T EXAMINED THE MERIT OF THE ADDITIONS ASSAILED BY THE ASSESSEE. WE THEREFO RE DEEM IT FIT TO SET ASIDE THE ORDER OF CIT (A) IN SO FAR AS THE MERITS OF THE ADDITION ARE CONCERNED, SO THAT HE CAN ADJUDICATE THE GROUNDS TAKEN BY THE ASS ESSEE IN THIS REGARD IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THE ADDITIONS DELETED BY CIT (A) IN THE ORIGINAL ROUND OF PROCEEDINGS CANNOT BE AGAIN D ONE. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATE D AS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH DAY OF JULY, 2016. SD/- (ABRAHAM P GEORGE) ACCOUNTANT MEMBER MCN COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER