The ACIT-1(1), Bhopal V. M/s. Vardhman Construction, Bhopal

MA 109/IND/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9037 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-10-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-10-2018
• Assessment Year: 2004-2005
• Appeal Filed On: 31-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Assessee Lawyers: GIRISH AGRAWAL
• Keywords: Audit objection; Tax effect; Reassessment proceedings
• Section: 143(3); 148

Judgement Text

VARDHMAN CONSTRUCTION M.A.NO.83 & 109/IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO. 83 & 109 /IND/2016 (ARISING OUT OF ITA NO.220 & 221/IND/2014) ASSESSMENT YEAR 2003-04 & 2004-05 REVENUE BY SHRI P.K. MITRA, SR. DR ASSESSEE BY SHRI GIRISH AGRAWAL, CA DATE OF HEARING 12.10.2018 DATE OF PRONOUNCEMENT 17.10.2018 O R D E R PER SHRI MANISH BORAD,AM THESE TWO MISCELLANEOUS APPLICATIONS FI LED AT THE INSTANCE OF REVENUE RELATING TO THE SAME ASSESSEE PERTAINING TO ASSESSM ENT YEAR 2003-04 & 2004-05 ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 21.12.2015 WHEREIN VARIOUS APPEALS OF THE REVENUE WERE DISMISS ED FOR LOW TAX EFFECT ON ACCOUNT OF CBDT CIRCULAR NO.21/20145 DATED 10.12.20 15. 2. LD. DEPARTMENTAL REPRESENTATIVE AT THE OUTSET SU BMITTED THAT THE ADDITIONS MADE IN THE HANDS OF THE ASSESSEE IN THE ASSESSMENT ORDER FRAMED U/S 143(3) ACIT 1(1), BHOPAL VS. M/S. VARDHMAN CONSTRUCTION, BHOPAL (APPELLANT) (RESPONDENT ) PAN NO. AADFB0052C VARDHMAN CONSTRUCTION M.A.NO.83 & 109/IND/2016 2 R.W.S. 147 OF THE ACT WAS ON ACCOUNT OF THE REOPENI NG OF THE ASSESSMENT DUE TO REVENUE AUDIT OBJECTION AND THE APPEAL OF THE REVENU E WAS COVERED UNDER THE EXCEPTION CLAUSE UNDER PARA 8(C) OF THE CBDT CIRCUL AR NO.21/2015 DATED 10.12.2015. HE THEREFORE PRAYED THAT ABOVE CAPTION ED TWO APPEALS MAY PLEASE BE RECALLED AND TO BE DECIDED ON MERITS BY THE HON' BLE TRIBUNAL. 2. PER CONTRA THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT LD. CIT(A) ALLOWED THE ASSESSEES APPEAL BY HOLDING THAT REASS ESSMENT PROCEEDINGS U/S 147 OF THE ACT WAS NOT VALID AND THEREFORE THE ASSESSME NT COMPLETED U/S 147 R.W.S. 143(3) OF THE ACT WAS QUASHED. HE FURTHER STATED T HAT MERITS OF THE CASE RELATING TO DISALLOWANCE OF DEDUCTION U/S 80IB(10) OF THE AC T WERE NOT DEALT BY LD.CIT(A) AS THE REASSESSMENT PROCEEDINGS WERE ITSELF HELD TO BE INVALID. 3. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. REVENUE HAS POINTED OUT THAT AN APPARENT MISTAKE HA S OCCURRED IN THE ORDER OF TRIBUNAL DATED 21.12.2015 BY WAY OF DISMISSING THE REVENUES APPEAL IN LIMINE ON ACCOUNT OF LOW TAX EFFECT EVEN WHEN THE CASE WAS CO VERED UNDER THE EXCEPTIONS CLAUSE OF PARA 8(C) OF CBDT CIRCULAR NO.21/2015. W E OBSERVE THAT THE LD. COUNSEL FOR THE ASSESSEE HAS NOT DENIED THE FACT THAT THE R EASSESSMENT PROCEEDINGS WERE INITIATED BY THE REVENUE AUTHORITIES ON THE BASIS O F REVENUE AUDIT OBJECTIONS VARDHMAN CONSTRUCTION M.A.NO.83 & 109/IND/2016 3 WHICH TRIGGERED THE ISSUANCE OF NOTICE U/S 148 OF T HE ACT IN ORDER TO EXAMINE THE ASSESSEES ELIGIBILITY FOR DEDUCTION U/S 80IB(10) O F THE ACT. 4. INCOME TAX APPELLATE TRIBUNAL VIDE ORDER DATED 21.12.2015 HAS DISMISSED VARIOUS APPEALS OF THE REVENUE ONLY ON THE BASIS TH AT THE TAX EFFECT IN THESE APPEALS ARE LESS THAN RS.10 LAKHS AND NONE OF THE C ASES ARE COVERED IN THE EXCEPTION PROVIDED IN THE CBDT CIRCULAR NO.21/2015 DATED 10.12.2015. HOWEVER, PERUSAL OF THE RECORDS PLACED BEFORE US SHOWS THAT THESE TWO APPEALS OF THE REVENUE WERE SPECIFICALLY COVERED UNDER THE EXCEPTI ON PROVIDED IN PARA 8(C) OF THE CBDT CIRCULAR NO.21/2015 DATED 10.12.2015, WHIC H SAYS THAT ADVERSE JUDGMENTS RELATING TO THE ISSUES WHERE REVENUE AUDIT OBJECTIONS IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT THEN SAID ISSUE SHO ULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LES S THAN THE MONETARY LIMIT OF RS.10 LAKHS OR THERE IS NO TAX EFFECT. 5. IN OUR CONSIDERED VIEW AS BOTH THESE APPEALS NO. 220 & 221/IND/2014 ARE COVERED UNDER THE EXCEPTIONS OF PARA 8(C) OF THE CB DT CIRCULAR AN APPARENT MISTAKE HAS OCCURRED IN THE ORDER OF THE TRIBUNAL D ATED 21.12.2015. WE THEREFORE RECALL BOTH THE APPEALS NO.220 & 221/IND/2014 AND DIRECT THE REGISTRY TO FIX THEM FOR HEARING IN DUE COURSE OF TIME BY ISSUING NECESS ARY NOTICES TO BOTH THE PARTIES. VARDHMAN CONSTRUCTION M.A.NO.83 & 109/IND/2016 4 6. IN THE RESULT BOTH THE MISCELLANEOUS APPLICATION S OF THE REVENUE ARE ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17 .10. 2018. SD/- SD/- (KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 17.10.2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER ASSTT. REGISTRAR