Purushotamdas Jain, CHENNAI V. ACIT, CHENNAI

ITSSA 20/CHNY/2014

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2524 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 16-11-2016
• Assessment Year: misc
• Appeal Filed On: 01-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R DURAI
• Assessee Lawyers: R BALASUBRAMANIAN; M J NICHANE S
• Keywords: Block assessment
• Section: 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI . . . , !'# . $%$& , ' #( ) [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ] ./I.T(SS) A. NO.20/MDS/2014 BLOCK ASSESSMENT YEAR : 1988 - 89 TO 97 - 98 (1.4.1997 TO 11.12.1997) SHRI. PURUSHOTAMDAS JAIN, FLAT NO.404, 4 TH FLOOR, SILVER OAKS, GARDEN APARTMENTS, NO.21, VITTAL MALLAYA ROAD, BANGALORE 560 001. [PAN AAKPP 0374J] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(3) CHENNAI. ( *+ / APPELLANT) ( ,-*+ /RESPONDENT) / APPELLANT BY : SHRI. R. BALASUBRAMANIAN, & SMT. M.J. NICHANE, ADVOCATES. /RESPONDENT BY : SHRI. R. DURAI PANDIAN, IRS, /DATE OF HEARING : 16-11-2016 /DATE OF PRONOUNCEMENT : 23-11-2016 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ASSESSEE IN THIS APPEAL DIRECTED AGAINST AN ORDE R DATED 30.09.2014 OF COMMISSIONER OF INCOME TAX (APPEALS)- II, CHENNAI HAS APART FROM TAKING NINETEEN GROUNDS ORIGINALLY, ALSO FILED A SET OF ADDITIONAL GROUNDS. IT(SS) A NO. 20/MDS/2014. :- 2 -: 2. THE ADDITIONAL GROUNDS FILED BY THE ASSESSEE IS REP RODUCED HEREUNDER:- THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN OMITTING TO PASS ANY ORDER ON THE CONTENTIONS RAISED BY THE APPELLANT IN GROUNDS NO.14 TO 21 OF THE GROUNDS OF APPEAL FILED BEFORE HIM. 2. THE COMMISSIONER OF INCOME-TAX (APPEALS) SHOULD HAVE HELD THAT THE CONTENTIONS, SO RAISED BY THE APPELLANT, DEALT WITH THE VERY CRUX OF THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME-TAX, IN THAT THE ORDER WAS COMPLETELY BARRED BY LIMITATION. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS) SHOULD HAVE HELD THAT THE FRESH ORDER, TO BE PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX ON THE BASIS OF THE ORDER DATED DECEMBER 30, 2008 PASSED BY THE INCOME-TAX APPELLATE TRIBUNAL, MADRAS, IN I.T.(SS) A. NO.80/MDS/2007, SHOULD HAVE BEEN PASSED BY THE ASSISTANT COMMISSIONER OF INCOME-TAX WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER WAS RECEIVED BY HIM. 4. THE COMMISSIONER OF INCOME-TAX (APPEALS) SHOULD HAVE HELD THAT, ASSUMING THAT THE SAID ORDER OF THE INCOME-TAX APPELLATE TRIBUNAL WAS RECEIVED BY THE ASSISTANT COMMISSIONER OF INCOME-TAX BEFORE MARCH 31, 2009, THE FRESH ORDER SHOULD HAVE BEEN PASSED BY HIM, IN ACCORDANCE WITH PROVISIONS OF SECTION 153(2A) OF THE INCOME-TAX ACT, 1961, BEFORE MARCH 31, 2010. 5. THE COMMISSIONER OF INCOME-TAX (APPEALS) SHOULD HAVE, THEREFORE, HELD THAT THE ORDER DATED JANUARY 23, 2014, PASSED BY THE ASSISTANT COMMISSIONER OF INCOME-TAX, WAS NULL AND VOID AND WAS BARRED BY LIMITATION. IT(SS) A NO. 20/MDS/2014. :- 3 -: A READING OF THE ABOVE ADDITIONAL GROUNDS SHOW TH AT IT QUESTIONS VALIDITY OF ORDER PASSED BY THE LD. ASSESSING OFFIC ER ON 23.01.2014. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITT ED THAT IT HAD RAISED SPECIFIC GROUNDS BEFORE LD.CIT(A) QUESTIONING THE V ALIDITY OF THE ORDER LD. ASSESSING OFFICER BUT THESE WERE NOT ADJUDICATE D BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). SPECIFIC REFE RENCE WAS MADE TO GROUNDS NO.15 & 16 RAISED BEFORE LD. COMMISSIONE R OF INCOME TAX (APPEALS). AS PER LD. AUTHORISED REPRESENTATIVE OR DER DATED 30.12.2008 OF THIS TRIBUNAL SETTING ASIDE THE ASSES SMENT OF THE LD. ASSESSING OFFICER WAS SERVED ON THE DEPARTMENT ON 1 9.01.2009. NEVERTHELESS, AS PER LD. AUTHORISED REPRESENTATIVE THE PURSUANT ORDER WAS PASSED BY THE LD. ASSESSING OFFICER ONLY ON 30. 12.2011. AS PER THE LD. AUTHORISED REPRESENTATIVE AGGRIEVED ON SUCH PR OCEEDINGS ASSESSEE HAD FILED A PETITION BEFORE LD. COMMISSIONER OF INC OME TAX U/S.264 OF THE ACT. AS PER LD. AUTHORISED REPRESENTATIVE LD.C IT HAD SET ASIDE THE ASSESSMENT DATED 30.12.2011 PURSUANT TO SUCH PETITI ON DIRECTING LD. ASSESSING OFFICER TO PASS A FRESH ORDER. CONTENTIO N OF THE LD. AUTHORISED REPRESENTATIVE WAS THAT ASSESSEE WAS CON STRAINED TO MOVE LD. COMMISSIONER OF INCOME TAX U/S.264 OF THE ACT, SINCE LD. ASSESSING OFFICER IN HIS ORDER DATED 30.12.2011 HAD NOT GIVEN EFFECT TO THE DIRECTIONS OF THE TRIBUNAL. AS PER LD. AUTHORI SED REPRESENTATIVE, THE LD. COMMISSIONER OF INCOME TAX HAD IT(SS) A NO. 20/MDS/2014. :- 4 -: APPRECIATED THIS AND DIRECTED LD. ASSESSING OFFICER TO PASS A FRESH ORDER. THE FRESH ORDER AS PER LD.AR WAS PASSED ON 23.1.2014. BOTH ORDERS PASSED ON 30.12.2011 AND 23.01.2014, WERE B EYOND THE TIME ALLOWED U/S.153(2A) OF THE ACT, AS PER LD. AUTHORIS ED REPRESENTATIVE. 3. LD. DEPARTMENTAL REPRESENTATIVE FAIRLY AGREED THAT THE ISSUE REGARDING LIMITATION THOUGH ASSAILED BEFORE LD. COM MISSIONER OF INCOME TAX (APPEALS) WAS NOT ADJUDICATED BY HIM. . 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE AUTHORITIES BELOW. SUB SECTION (2A) OF SEC. 153 OF THE ACT IS REPRODUCED HEREUNDER:- (2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB- SECTIONS (1), (1A), (1B) AND (2), IN RELATION TO TH E ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1971, AND ANY SUBSEQUENT ASSESSMENT YEAR, AN ORDER OF FRESH ASSESSMENT IN PURSUANCE OF AN ORDER UNDER SECTION 250 OR SECTION 254 OR SECTION 263 OR SECTION 264, SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE CHIEF COMMISSIONER OR COMMISSIONER . CONTENTION OF THE ASSESSEE IS THAT ORDER DATED 30.1 2.2011 HAD NOT CONSIDERED THE TRIBUNAL DIRECTED DATED 30.12.2008 AND THEREFORE ASSESSEE WAS CONSTRAINED TO FILE A RECTIFICATION P ETITION U/S.264 OF THE IT(SS) A NO. 20/MDS/2014. :- 5 -: ACT. AS PER THE ASSESSEE, ORDER DATED 23.01.2014 PASSED BY THE LD. ASSESSING OFFICER PURSUANT TO THE DIRECTION OF THE LD. COMMISSIONER OF INCOME TAX WAS ALSO MUCH OUT OF TIME. GROUNDS NUM BER 15 AND 16 TAKEN BY THE ASSESSEE BEFORE LD. COMMISSIONER OF IN COME TAX (APPEALS) ARE REPRODUCED HEREUNDER:- 15. THE ASSISTANT COMMISSIONER OF INCOME-TAX SHOULD HAVE HELD THAT THIS ORDER SHOULD HAVE BEEN PASSED BY HIM BEFORE THE 31 ST DAY OF MARCH OF THE FINANCIAL YEAR IN WHICH THE ORDER PASSED BY THE INC OME TAX APPELLATE TRIBUNAL WAS RECEIVED AND, ASSUMING T HAT THIS ORDER WAS RECEIVED BY HIM BEFORE MARCH, 31, 20 09, THE CONSEQUENTIAL ORDER SHOULD HAVE BEEN PASSED BY HIM BEFORE MARCH, 31, 2010, AND THE ORDER NOW PASSE D BY HIM WAS BARRED BY LIMITATION FOR NEARLY FOUR YEA RS. 16. THE ASSISTANT COMMISSIONER OF INCOME-TAX SHOULD HAVE HELD THAT FOR THIS REASON ALONE THE ORD ER DATED JANUARY, 2014 PASSED BY HIM WAS NULL AND VOID AND THAT THE APPELLANT COULD BE SAID TO BE LIABLE TO PAY EITHER THE WHOLE, OR ANY PART, OF THE AMOUNT OF G1,63,64,796/- DETERMINED BY HIM. READING OF THE ORDER DATED 30.09.2014 OF THE LD. CO MMISSIONER OF INCOME TAX (APPEALS) SHOW THAT THESE GROUNDS WERE N OT ADJUDICATED. WE ARE OF THE OPINION THAT GROUNDS WHICH QUESTION T HE VALIDITY OF THE ORDER PASSED GOES TO THE VERY ROOT OF THE MATTER. LD. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE DISPOSED OF THES E GROUNDS. WE THEREFORE SET ASIDE THE ORDER OF THE LD. COMMISSION ER OF INCOME TAX (APPEALS) AND REMIT THE GROUNDS RELATING TO VALIDIT Y OF THE ORDER OF THE LD. ASSESSING OFFICER BACK TO THE FILE OF THE LD. COMMISSIONER OF IT(SS) A NO. 20/MDS/2014. :- 6 -: INCOME TAX (APPEALS) FOR CONSIDERATION AND DISPOSE D OF IN ACCORDANCE WITH LAW. NEEDLESS TO SAY ALL OTHER GROUNDS RAISED BY THE ASSESSEE SHALL REMAIN OPEN. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 23 RD DAY OF NOVEMBER, 2016, AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( !'# . $%$& ) (ABRAHAM P. GEORGE) ' / ACCOUNTANT MEMBER ! / CHENNAI '# / DATED:23RD NOVEMBER, 2016 KV #$%&'(' / COPY TO: 1 . / APPELLANT 3. )* / CIT(A) 5. '+ ,%%-. / DR 2. / RESPONDENT 4. ) / CIT 6. , /01 / GF