M/s. Sheladia Associates, Gandhinagar V. The ACIT.,Circle-2(1), Bhubaneshwar

ITA 95/AHD/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9582 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 27-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR
• Keywords: Competent authority
• Section: 143(3); 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI RAJPAL YADAV, J.M. & SHRI ANIL CHATURV EDI, A.M.) I.T. A. NOS. 95 & 725/AHD/2011 (ASSESSMENT YEAR: 2006-07) M/S. SHELADIA ASSOCIATES, INC. PLOT NO. 487/2, SECTOR- 7/B, GANDHINAGAR- 382007 V/S ASST. COMMISSIONER OF INCOME TAX CIRCLE-2(1), BHUBANESWAR (APPELLANT) (RESPONDENT) THE D.C.I.T., GANDHINAGAR CIRCLE, GANDHINAGAR V/S M/S. SHELADIA ASSOCIATES, INC. PLOT NO. 487/2, SECTOR- 7/B, GANDHINAGAR (APPELLANT) (RESPONDENT) PAN: AAFCS 7792F APPELLANT BY : MS. RITIKA AGARWAL RESPONDENT BY : SHRI T.P. KRISHNAKUMAR, CIT/D R ( )/ ORDER DATE OF HEARING : 27-05-2015 DATE OF PRONOUNCEMENT : 29 -05-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER. 1. THESE 2 APPEALS, OF WHICH 1 IS FILED BY THE ASSESSE E AND THE OTHER IS FILED BY THE REVENUE, ARE AGAINST THE ORDER OF CIT(A), GANDH INAGAR DATED 01.12.2010 FOR A.Y. 2006-07. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. ITA NO 95 & 725/AHD/2011 . A.Y. 2006-0 7 2 3. ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE B USINESS OF CONSULTANCY OF ENGINEERING SERVICES FOR VARIOUS INFRASTRUCTURE PRO JECTS IN INDIA. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2006-07 ON 17.0 3.2008 SHOWING TOTAL TAXABLE INCOME OF RS. 9,76,14,190/-. A.O IN THE ASS ESSMENT ORDER HAS NOTED THAT THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S. 143(2) AND 142(1) WAS SERVED ON THE ASSESSEE BUT SINCE IN RESPONSE TO THE NOTICES, NONE APPEARED NOR DETAILS WERE FILED, A.O PASSED ORDER O N 18.12.2008 U/S. 144 AND DETERMINED THE TOTAL INCOME AT RS. 13,76,14,190 /-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE L D. CIT(A) WHO VIDE ORDER DATED 01.12.2010 GRANTED PARTIAL RELIEF TO THE ASSE SSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE AND REVENU E ARE NOW IN APPEAL BEFORE US. THE GROUNDS RAISED BY ASSESSEE READS AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEAR NED CIT (APPEALS) HAS ERRED IN HOLDING THAT ASST. COMMISSIONER OF INCOME TAX CIRCL E - 2(1), BHUBANESWAR HAD THE JURISDICTION TO PASS THE ORDER OF ASSESSMENT FOR A. Y. 2006-07 IN THE CASE OF THE APPELLANT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ID. CIT (APPEALS) HAS ERRED IN HOLDING THAT ASST. COMMISSIONER OF INCOME TAX CIRCLE - 2(1) , BHUBANESWAR WAS NOT BOUND TO CONSIDER THE OBJECTION TO HIS JURISDICTION FILED BY THE APPELLANT U/S 124 BEFORE HIM. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ID. CIT (APPEALS) HAS ERRED IN HOLDING THAT THE ORDER OF ASST. COMMISSIONER OF INCOME TAX CIRCLE - 2(1), BHUBANESWAR MADE UNDER SECTION 144 WAS VALID. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ID. CIT (APPEALS) HAS ERRED IN CONFIRMING WITHOUT GIVING ANY BASIS AND JUSTIFICATI ON ADDITION OF AMOUNT OF RS. 2,00,00,000/- OUT OF ARBITRARY AD HOC ADDITION OF R S. 4,00,00,000/- MADE BY THE ASSESSING OFFICER. 4. ON THE OTHER HAND THE GROUNDS RAISED BY REVENUE REA DS AS UNDER:- 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FA CTS IN RESTRICTING THE ADDITION MADE ON ACCOUNT OF ESTIMATION OF PROFIT FROM RS.4 C RORES TO RS.2 CRORES, THEREBY DELETING THE ADDITION BY AN AMOUNT OF RS.2,00,00,00 0/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD .CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEAR NED CIT(APPEALS) MAY BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTEN T. ITA NO 95 & 725/AHD/2011 . A.Y. 2006-0 7 3 5. BOTH THE APPEALS ARE INTERCONNECTED AND THEREFORE C ONSIDERED TOGETHER. 6. BEFORE US, LD. A.R. AT THE OUTSET, ON THE VALIDITY OF THE ASSESSMENT ORDER PASSED BY A.O, SUBMITTED THAT ASSESSEE IS A FOREIGN COMPANY INCORPORATED IN USA AND SINCE 1989-99 HAS BEEN PROVIDING CONSULT ANCY FOR DESIGN AND VARIOUS NHAI PROJECTS IN INDIA AND ITS PROJECT OFFI CE WAS IN BHUBANESWAR AND WAS ASSESSED AT BHUBANESWAR TILL A.Y. 02-03. AF TER THE PROJECT OFFICE SHIFTED TO GANDHINAGAR, THE ASSESSEE FILED ITS RETU RN OF INCOME FOR A.Y. 03- 04 ONWARDS WITH ACIT, GANDHINAGAR. SHE SUBMITTED TH AT WHEN THE RETURN OF INCOME WAS FILED BY THE ASSESSEE BEFORE ACIT, GANDH INAGAR WHO HAD THE JURISDICTION OF ASSESSEE THE ASSESSMENT ORDER DATED 18.12.2008 PASSED U/S. 144 OF THE ACT BY A.C.I.T, BHUBANESWAR IS BAD IN LA W AS HE HAD NO JURISDICTION TO PASS THE ASSESSMENT ORDER. SHE ALSO PLACED ON RECORD A CHART SHOWING DETAILS OF ASSESSEES JURISDICTION IN DIFFE RENT ASSESSMENT YEARS AND FROM IT SHE POINTED OUT THAT THE ASSESSMENT ORDERS FOR IMMEDIATELY PRECEDING ASSESSMENT YEARS I.E. A.Y. 03-04 & 05-06 WERE PASSE D BY ACIT, GANDHINAGAR AND THE ORDERS FOR SUBSEQUENT YEARS I.E . A.Y. 07-08 & 08-09 HAS ALSO BEEN PASSED BY ACIT, GANDHINAGAR. SHE THE REFORE SUBMITTED THAT IN SUCH A SITUATION PASSING THE ASSESSMENT ORDER, FOR THE YEAR UNDER CONSIDERATION I.E. A.Y. 06-07 BEING THE INTERMEDIAT E YEAR, BY ACIT, BHUBANESWAR IS WITHOUT JURISDICTION. SHE ALSO POINT ED TO THE LETTER DATED 3 RD AUGUST, 2004 (PLACED AT PAPER BOOK136) WHICH WAS AD DRESSED TO ACIT, GANDHINAGAR INFORMING HIM ABOUT THE FILING OF RETUR N OF INCOME AT GANDHINAGAR ON ACCOUNT OF CHANGE OF PRIMARY PLACE O F BUSINESS OF THE ASSESSEE FROM BHUBANESWAR TO GANDHINAGAR. SHE THER EFORE SUBMITTED THAT IN THE ABSENCE OF JURISDICTION BY ACIT, BHUBANESWAR , THE ASSESSMENT ORDER PASSED BY HIM U/S. 144 OF THE ACT IS NULL AND VOID AND NON EXISTENT IN THE ITA NO 95 & 725/AHD/2011 . A.Y. 2006-0 7 4 EYES OF LAW AND THEREFORE THE SAME NEEDS TO BE QUAS HED. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND LD. CIT(A ) AND FURTHER SUBMITTED THAT IN THE PRESENT CASE NO ORDER TO TRANSFER THE C ASE FROM BHUBANESWAR TO GANDHINAGAR U/S. 127 OF THE ACT HAS BEEN PASSED BY THE COMPETENT AUTHORITY WHICH IS A MANDATORY REQUIREMENT AND THEREFORE THE A.O AT BHUBANESWAR HAD THE JURISDICTION TO PASS THE ORDER AND HAS RIGH TLY PASSED THE ORDER. HE THUS SUPPORTED THE ORDER OF A.O AND LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON THE BASIS OF CHART FILED BY THE ASSESSEE ABOUT THE JURISDICTION AND WHICH HAS NOT BEEN CONTROVERTED BY REVENUE, IT IS AN UNDISPUT ED FACT THAT UP TO A.Y. 02-03, THE ASSESSEE WAS ASSESSED TO TAX AT BHUBANES WAR. IT IS ASSESSEES CONTENTION THAT DUE TO THE CHANGE OF PLACE OF BUSIN ESS IT HAD STARTED FILING ITS RETURN FROM A.Y. 03-04 ONWARDS OF INCOME AT GANDHIN AGAR. IT IS ALSO AN UNDISPUTED FACT THAT FOR A.Y. 03-04 INTIMATION U/S. 143(1) HAS BEEN PASSED BY ACIT, GANDHINAGAR, THE COPY OF WHICH IS PLACED A T PAGE NO. 142 OF THE PAPER BOOK. IT IS ALSO AN UNDISPUTED FACT THAT FOR A.Y. 05-06 ASSESSMENT ORDER U/S. 143(3) DATED 6.12.2007 HAS BEEN PASSED BY ACIT, GANDHINAGAR AND THE COPY OF WHICH IS PLACED AT PAGE 143 AND 144 OF THE PAPER BOOK. SIMILARLY, FOR A.Y. 07-08 AND 08-09 THE ASSESSMENTS OF ASSESSEE HAS BEEN FRAMED U/S. 143(3) BY ACIT, GANDHINAGAR AND AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE TRIBUNAL. BEFORE US, IT IS REVENU ES STAND THAT NO ORDER U/S. 127 OF THE ACT TO TRANSFER THE CASE OF THE ASSESSEE FROM BHUBANESWAR TO GANDHINAGAR HAS BEEN PASSED BUT WE ARE OF THE VIEW THAT IMPLIEDLY BY PASSING THE ASSESSMENT ORDERS FOR EARLIER YEAR (I.E . A.Y. 03-04 AND 05-06) AND SUBSEQUENT YEARS (I.E. A.Y. 07-08 AND 08-09) BY ACIT, GANDHINAGAR, ACIT, GANDHINAGAR HAS IMPLIEDLY ASSUMED THE JURISDI CTION OF ASSESSEE AND ITA NO 95 & 725/AHD/2011 . A.Y. 2006-0 7 5 THEREFORE WHEN ONCE BY IMPLICATION ACIT, GANDHINAGA R HAS ASSUMED JURISDICTION, THEN THE ASSESSMENT ORDER PASSED BY A CIT, BHUBANESWAR FOR A.Y. 06-07 DATED 18.12.2008 PASSED U/S. 144 OF THE ACT (BEING THE YEAR IN BETWEEN OF THE YEARS WHEN ACIT, GANDHINAGAR HAD JUR ISDICTION) IS WITHOUT JURISDICTION AND THEREFORE NOT A VALID ORDER AND TH EREFORE WE HOLD IT TO BE NON-EST IN THE EYES OF LAW. BEFORE US, REVENUE HAS ALSO NOT BROUGHT ANY BINDING DECISION OR PLACED ANY MATERIAL TO SUPPORT OF ITS CASE. IN VIEW OF THE AFORESAID FACTS, THE GROUND OF THE ASSESSEE RAISED ON THE ISSUE OF JURISDICTION IS ALLOWED. 8. SINCE THE ASSESSMENT ORDER PASSED U/S. 144 OF THE A CT ITSELF HAS BEEN HELD BY US TO BE WITHOUT JURISDICTION, WE ARE OF THE VIEW T HAT THE OTHER GROUND RAISED ON MERITS BY ASSESSEE AND THE GROUND RAISED BY REVE NUE ON QUANTUM ADDITION HAVE BECOME ACADEMIC AND THEREFORE REQUIRE S NO ADJUDICATION AND THEREFORE NOT ADJUDICATED. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED AN D THAT OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 29 - 05 - 2015. SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED.