ACIT CEN CIR 42, MUMBAI V. ACG ARTS & PROPERTIES P.LTD, MUMBAI

ITA 931/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3058 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 10-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH V SHAH
• Keywords: Tangible material; Difference of opinion; Change of opinion
• Section: 143(3); 153A; 14A; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.931/M/2014 ASSESSMENT YEAR: 2004-05 ACIT CENTRAL CIRCLE -42, ROOM NO.655, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 20 VS. M/S. ACG ARTS & PROPERTIES PVT. LTD., 1001 DALAMAL HOUSE, 10 TH FLOOR, NARIMAN POINT, MUMBAI -21 PAN: AAACU 0615L (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI MANISH V. SHAH, A.R. REVENUE BY : SHRI RAKESH RANJAN, D.R. DATE OF HEARING : 22.07.2015 DATE OF PRONOUNCEMENT : 16.10.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 27.11.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2004-05. 2. THE REVENUE, IN THIS APPEAL, HAS AGITATED THE AC TION OF THE LD. CIT(A) IN TREATING THE ASSESSMENT ORDER PASSED BY THE ASSESSI NG OFFICER (HEREINAFTER REFERRED TO AS THE AO) UNDER SECTION 143(3) READ WI TH SECTION 147 OF THE INCOME TAX ACT AS BAD IN LAW AND WITHOUT JURISDICTI ON. THE BRIEF FACTS OF THE CASE ARE THAT THE EARLIER A SSESSMENT UNDER SECTION 143(3) READ WITH SECTION 153A OF THE ACT WAS DONE B Y THE AO IN THE CASE OF THE ASSESSEE DETERMINING THE TOTAL INCOME OF THE AS SESSEE AT RS.7,26,67,400/-. SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED UNDER SEC TION 147 OF THE ACT BY THE AO. IN THE REOPENED ASSESSMENT PROCEEDINGS THE AO MADE A DISALLOWANCE ITA NO.931/M/2014 M/S. ACG ARTS & PROPERTIES PVT. LTD. 2 OF RS.11,73,365/- UNDER SECTION 14A OF THE ACT. DU RING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), WHILE RELYING UP ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. KELV INATOR OF INDIA 320 ITR 561, THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT TH E REOPENING IN THIS CASE WAS BASED ON THE CHANGE OF OPINION OF THE AO. THE ASSE SSEE HAD SUBMITTED THE REQUIRED DETAILS WITH RESPECT TO DISALLOWANCE UNDER SECTION 14A DURING THE ORIGINAL ASSESSMENT PROCEEDINGS UNDER SECTION 143(3 ) READ WITH SECTION 153A. THE AO, HOWEVER, DID NOT MAKE ANY ADDITION UNDER SE CTION 14A OF THE ACT DURING THE ORIGINAL ASSESSMENT PROCEEDINGS. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. A.R., THE LD. CIT(A) OBSERVED THAT THE A O ONCE HAD APPLIED HIS MIND AND HAS TAKEN A VIEW ON THE FACTS PRESENT BEFO RE HIM AND NO TANGIBLE MATERIAL HAS COME TO HIS KNOWLEDGE, THEN THE REOPEN ING WAS NOT JUSTIFIED BECAUSE OF THE CHANGE OF OPINION OF THE AO ON THE S AME SET OF FACT. HE, THEREFORE, HELD THAT THE REOPENING IN THIS CASE WAS NOT VALID. HE, THEREFORE, SET ASIDE THE ASSESSMENT MADE IN THE REOPENED PROCEEDIN GS. 3. THE LD. D.R. COULD NOT POINT OUT ANY NEW FACT OR PROPOSITION OF LAW WHICH MAY JUSTIFY OUR INFERENCE IN THE ABOVE WELL R EASONED ORDER OF THE LD. CIT(A). 4. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND THE SAME IS ACCORDINGLY UPHELD. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS HERE BY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.10.2015. SD/- SD/- (G.S. PANNU) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 16.10.2015. * KISHORE, SR. P.S. ITA NO.931/M/2014 M/S. ACG ARTS & PROPERTIES PVT. LTD. 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.