M/s Sree Rayalseema Green Energy Ltd., Hyderabad V. CIT, Hyderabad

ITSSA 13/HYD/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 8650 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-03-2011
• Assessment Year: misc
• Appeal Filed On: 26-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G V HEMALATHA DEVI
• Assessee Lawyers: A V RAGHURAM
• Keywords: Reasonable cause; Block assessment
• Section: 263; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER IT(SS)A NO. 13/HYD/2010 BLOCK PERIOD: A.YS. 1996097 TO 2001-02 & PERIOD FROM 1.4.2001 TO 7.3.2002 M/S. SREE RAYALASEEMA GREEN ENERGY LTD., KURNOOL PAN: AAECS7075A VS. THE COMMISSIONER OF INCOME-TAX (CENTRAL) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI A.V. RAGHURAM RESPONDENT BY: SMT. G.V. HEMALATHA DEVI DATE OF HEARING: 05.12.2012 DATE OF PRONOUNCEMENT: 31.01.2031 ORDER PER CHANDRA POOJARI, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT (CENTRAL), HYDERABAD DATED 30.3.20 09 FOR THE BLOCK PERIOD A.YS. 1996-97 TO 2001-02 AND T HE PERIOD FROM 1.4.2001 TO 7.3.2002. 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL: (A) THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (CENTRAL) PASSED U/S. 263 IS ERRONEOUS BOTH ON FACT S AND IN LAW. (B) THE LEARNED CIT (CENTRAL) ERRED IN INVOKING POWERS U/S. 263 WITHOUT APPRECIATING THE FACT THAT THE ORDER PR OPOSED TO BE REVIEWED IS HELD TO BE INVALID BY THE CIT(A) VID E HIS ORDER CALLING FOR A REPORT AFTER OBTAINING REQUIRED APPROVAL U/S. 158. (C) WITHOUT PREJUDICE TO THE ABOVE GROUND, THE LEARNED CIT (CENTRAL) ERRED IN INVOKING POWERS U/S. 263 ON AN O RDER WHICH IS PASSED CONSEQUENT TO ORDER U/S. 263 THEREB Y REVIEWING AN ORDER PASSED U/S. 263. IT(SS)A NO. 13/HYD/2010 M/S. RAYALASEEMA GREEN ENERGY LTD. ============================= 2 (D) THE LEARNED CIT (CENTRAL) FAILED TO APPRECIATE THE FACT THAT THE ISSUES THAT ARE REVIEWED IN HIS PROCEEDINGS WER E CONSIDERED ORIGINALLY WHILE MAKING BLOCK ASSESSMENT AND SATISFIED WITH THE EXPLANATION NO ADDITION WAS MADE AND THEREBY ERRED IN SETTING ASIDE THE ORDER WITH A DIR ECTION TO MAKE ADDITION OF RS. 92,08,304 FOR A.Y. 2001-02 AND RS. 23,40,179 FOR THE A.Y. 2002-03. 3. IT WAS NOTICED THAT THERE WAS A DELAY OF 323 DAYS IN FILING THIS APPEAL. THE ASSESSEE FILED A PETITI ON EXPLAINING THE DELAY. IN ITS PETITION IT WAS STATE D THAT THE ASSESSEE RECEIVED THE CIT ORDER ON 8.4.2009. T HE ASSESSEE SHOULD HAVE FILED THE APPEAL ON OR BEFORE 7.6.2009. INSTEAD OF THIS, THE ASSESSEE FILED A WR IT PETITION BEFORE THE HONBLE HIGH COURT IN WP NO. 13 572 ON 7.7.2009. LATER THE SAME WAS WITHDRAWN BY THE ASSESSEE AS THE PERMISSION WAS GRANTED BY THE HONB LE HIGH COURT 15.4.2010. AS SUCH THE ASSESSEE FILED T HE APPEAL BEFORE THE TRIBUNAL ON 26.4.2010. FURTHER, HE SUBMITTED THAT THERE WAS A SHORT DELAY OF AROUND ON E MONTH I.E., THE PERIOD BETWEEN 7.6.2009 I.E., THE C UT OFF DATE TO FILE THE APPEAL BEFORE THE TRIBUNAL AND 7.7 .2009, THE DATE ON WHICH THE WP FILED BEFORE THE HONBLE H IGH COURT. FURTHER HE SUBMITTED THAT THERE WAS FURTHER DELAY OF 10 DAYS I.E., FROM THE DATE OF WITHDRAWAL OF WP FROM HONBLE HIGH COURT I.E., 15.4.2010 TO THE ACTU AL DATE OF FILING OF THE APPEAL BEFORE THE TRIBUNAL AF TER THAT I.E., 26.4.2010. HE SUBMITTED THAT THE ASSESS EE IS A SITTING MEMBER OF LEGISLATIVE ASSEMBLY, GUNTAKAL CONSTITUENCY AND CONTESTED THE ELECTION HELD ON 23.4.2009 AND HE WAS ACTUALLY AWAITING THE RESULT U P TO 16.5.2009 I.E., THE DATE OF DECLARATION OF RESULT. LATER THE CONGRESS PARTY WITH WHICH HE WAS ASSOCIATED GOT MAJORITY IN THE ASSEMBLY ELECTIONS AND HAS TO FORM THE GOVERNMENT AND THE PERSON WHO IS TO BECOME CHIEF IT(SS)A NO. 13/HYD/2010 M/S. RAYALASEEMA GREEN ENERGY LTD. ============================= 3 MINISTER HAILED FROM THE ASSESSEES REGION AND HE W AS BUSY UP TO THIRD WEEK OF JULY, 2009 IN PARTICIPATIO N OF SWEARING IN CEREMONY AND FORMATION OF THE GOVERNMEN T. BEING SO, IT TOOK LITTLE TIME TO PRESENT THE APPEAL . AFTER WITHDRAWAL OF WP FROM THE HIGH COURT IT ALSO TOOK L ITTLE TIME TO GET CERTIFIED COPY FROM THE HIGH COURT AND ALSO IN FILING THE PRESENT APPEAL. WHATEVER THE DELAY C AUSED IS ON ACCOUNT OF PURSUING ALTERNATIVE REMEDY OR THE ASSESSEES PREOCCUPATION IN HIS POLITICAL ACTIVITIE S. THE DELAY WAS NOT INTENTIONAL AND THE AR PRAYED TO COND ONE THE DELAY. 4. THE DR STRONGLY OPPOSED CONDONATION OF DELAY. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD AND THE PETITION WITH REGARD TO DELAY IN FILING THE APPEAL. WE HAVE CAREFULLY GONE THROUGH THE REASONS ADVANCED BY THE ASSESSEE. ADMITTEDLY THE A SSESSEE IS PURSUING THE ALTERNATIVE REMEDY BY FILING THE WR IT PETITION BEFORE THE HONBLE HIGH COURT. THE ASSESSEE FILED T HE WP NO. 13572 OF 2009 ON 7.7.2009. LATER, THE SAME WAS WIT HDRAWN BY THE ASSESSEE ON 15.4.2010. THE ASSESSEE FILED T HE APPEAL BEFORE US ON 26.4.2010. THIS MARGINAL DELAY IN FIL ING THIS APPEAL IS ON ACCOUNT OF REASONABLE CAUSE AND ACCORD INGLY BY PLACING RELIANCE ON THE JUDGEMENT OF SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION, ANANTNAG V. MS T. KATIJI [1987] 2 SCC 107 (167 ITR 471) WHEREIN IT WAS HELD THAT WHEN THE QUESTION OF SUBSTANTIAL JUSTICE AND TECHNI CAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR T HE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEIN G DONE BECAUSE OF A NON-DELIBERATE DELAY. ACCORDINGLY, WE CONDONE THE DELAY OF 323 DAYS AND ADMIT THE APPEAL FOR ADJU DICATION. IT(SS)A NO. 13/HYD/2010 M/S. RAYALASEEMA GREEN ENERGY LTD. ============================= 4 6. NOW COMING TO THE MERIT OF THE ISSUE RAISED BY THE ASSESSEE, THIS IS THE SECOND REVISIONAL ORDER PASSE D BY THE CIT(A) U/S. 263 OF THE ACT ON 30.3.2009. THE ORIGI NAL ASSESSMENT ORDER WAS PASSED ON 26.3.2004 U/S. 158BC OF THE ACT COVERING THE BLOCK PERIOD 1996-97 TO 2001-02 AN D THE PERIOD FROM 1.4.2001 TO 7.3.2002. THIS ASSESSMENT ORDER DATED 26.3.2004 WAS SUBJECT MATTER OF REVISION U/S. 263 OF THE ACT VIDE ORDER DATED 29.3.2006. THIS REVISIONAL OR DER WAS SUBJECT MATTER OF APPEAL BEFORE THIS TRIBUNAL. THE TRIBUNAL VIDE ORDER DATED 30.9.2009 IN IT(SS)A NO. 39/HYD/20 06 QUASHED THE ORDER PASSED U/S. 263 OF THE ACT. IN TH E MEANWHILE THE ASSESSING OFFICER PASSED THE CONSEQUE NTIAL ORDER TO THE ORDER PASSED U/S. 263 OF THE ACT ON 29 .12.2006. IN OUR OPINION, THE CONSEQUENTIAL ASSESSMENT ORDER DATED 29.12.2006 HAS NO LEGS TO STAND, THIS IS BECAUSE TH IS ORDER HAS EMANATED FROM THE ORDER PASSED BY THE CIT U/S 2 63 DATED 29.3.2006 WHICH WAS QUASHED BY THE TRIBUNAL VIDE OR DER DATED 30.9.2009. BEING SO, IN OUR OPINION, THE ORD ER OF THE CIT PASSED U/S. 263 DATED 30.3.2009 REVISING THE AS SESSMENT ORDER DATED 29.12.2006 CANNOT BE SUSTAINED. THE DR SUBMITTED BEFORE US THAT THIS IS THE SECOND REVISIO NAL ORDER OF THE ORIGINAL ASSESSMENT ORDER DATED 26.3.2004 BY TH E CIT. ADMITTEDLY, THIS ARGUMENT HOLDS NO MERIT. THE CIT RECORDED IN HIS ORDER IN THE FIRST PARA THAT THIS IS REVISIO N ORDER WITH REFERENCE TO THE CONSEQUENTIAL ASSESSMENT ORDER DA TED 29.12.2006 AND NOT THE REVISION OF ORIGINAL ASSESSM ENT ORDER DATED 26.3.2004. EVEN IF WE CONSIDER THE ORIGINAL ASSESSMENT ORDER DATED 26.3.2004, THERE IS NO TIME AVAILABLE T O THE CIT TO PASS THIS ORDER U/S. 263 DATED 30.3.2009 AS THE CIT REQUIRED TO PASS THE ORDER U/S. 263 WITHIN TWO YEAR S FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED. IN THIS CASE THE ORIGINAL ASSES SMENT IT(SS)A NO. 13/HYD/2010 M/S. RAYALASEEMA GREEN ENERGY LTD. ============================= 5 ORDER WAS PASSED ON 29.3.2004. IN OTHER WORDS, HE H AS TO PASS THE REVISIONAL ORDER U/S. 263 OF THE ACT BY 31 ST MARCH, 2006 AND THE PRESENT ORDER U/S. 263 WAS PASSED ON 3 0.3.2009 BY THE CIT, WHICH IS TIME BARRED. ACCORDINGLY, WE A NNUL THE ORDER PASSED U/S. 263 DATED 30.3.2009. 7. AS WE HAVE QUASHED THE IMPUGNED ORDER ITSELF, WE REFRAIN OURSELVES FROM GOING INTO MERIT OF THE OTHE R GROUNDS RAISED BY THE ASSESSEE. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JANUARY, 2013, SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 31 ST JANUARY, 2013 TPRAO COPY FORWARDED TO: 1. M/S. RAYALASEEMA GREEN ENERGY LTD., C/O. SRI K. VASANTKUMAR, ADVOCATE, 403, MANISHA TOWERS, 10- 1-18/31, SHYAMNAGAR, HYDERABAD-500 034. 2. THE CIT (CENTRAL), AAYAKAR BHAVAN, HYDERABAD. 3. THE DC IT , CENTRAL CIRCLE - 4, HYDERABAD. 4. THE ADDL. CIT, CENTRAL RANGE - 2, HYDERABAD. 5. THE DR B BENCH, ITAT, HYDERABAD.