Purshotamdas Jain, Bangalore V. ACIT, Central Circle II(3), , Chennai

MA 123/CHNY/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7037 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 31-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MAYA J NICHANE S; R BALASUBRAMANIAN
• Keywords: Block assessment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , ! . '#'$ , % !& ' [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ] M.P.NO. 123/CHNY/2018 ( ./I.T(SS) A NO.8/CHNY/2017) BLOCK ASSESSMENT PERIOD : 1988-89 TO 1997-98 SHRI. PURUSHOTAMDAS JAIN, FLAT NO.404, 4 TH FLOOR SILVER OAKS, GARDEN APARTMENTS, NO.21, VITTAL MALLAYA ROAD, BANGALORE 560 001. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(3) CHENNAI. [PAN AAKPP 0374J] (PETITIONER) ( ()*+ /RESPONDENT) PETITIONER BY : SHRI. R. BALASUBRAMANIAN AND SMT. MAYA J. NICHANE, ADVOCATES RESPONDENT BY : SHRI. AR.V. SREENIVASAN, JCIT. /DATE OF HEARING : 24-08-2018 /DATE OF PRONOUNCEMENT : 24-08-2018 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ASSESSEE IN THIS MISCELLANEOUS PETITION SEEKS DEL ETION OF FOLLOWING PORTION OF THE IMPUGNED ORDER, WHICH APP EARS AT PARA 8. THERE IS NO CASE FOR THE REVENUE IF SEC.153(2A) OF THE ACT IS APPLIED, ORDERS PASSED BY THE LD. ASSESSING M.P.NO.123/CHNY/2018 :- 2 -: OFFICER, PURSUANT TO THE SETTING ASIDE ORDER OF THE TRIBUNAL, WERE WITHIN TIME LIMIT . 2. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE W AS NO NECESSITY FOR GIVING A FINDING THAT REVENUE HAD NO CASE WITH REGARD TO APPLICATION OF SECTION 153(2A) OF THE INCOME TAX AC T, 1961 (IN SHORT THE ACT). AS PER THE LD. AUTHORISED REPRESENTA TIVE, OBSERVATION IN THIS REGARD MADE BY THIS TRIBUNAL WHILE DISMISSING THE APPEAL OF THE REVENUE WAS NOT REQUIRED. CONTENTION OF THE LD. AUT HORISED REPRESENTATIVE WAS THAT THE OBSERVATION MADE BY THE TRIBUNAL MIGHT LEAD THE ASSISTANT COMMISSIONER OF INCOME TAX, TO T AKE A VIEW THAT THE ORDER PASSED BY HIM WAS WITHIN TIME LIMIT. 3. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE SUBMITT ED THAT THERE WERE NO MISTAKES IN THE ORDER OF THE TRIBUNAL AMENABLE TO ANY RECTIFICATION 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDER. WHAT WAS HELD BY THE TRIBUNAL AT PARA 8 OF I TS ORDER IS REPRODUCED HEREUNDER:- 8. READING OF SEC.153(2A) CLEARLY SAYS THAT IT AP PLIES TO EVERY CASE WHERE THERE IS SETTING ASIDE OF THE O RIGINAL ASSESSMENT ORDER. SECTION 153(3) HAS TO BE CONSTRU ED SUBJECT TO SUB-SECTION (2A). HENCE, ONCE THE ASSESSMENT HAS BEEN SET ASIDE, THE APPLICABLE LAW FOR M.P.NO.123/CHNY/2018 :- 3 -: CONSTRUING THE TIME LIMIT HAS TO BE FIRST TESTED AG AINST 153(2A) OF THE ACT. ONLY THOSE CASES, WHICH DO NOT FALL WITHIN THE SCOPE OF SECTION 153(2A) COMES WITHIN TH E PURVIEW OF SECTION 153(3) OF THE ACT. WE ARE UNABL E TO ACCEPT THE CONTENTION OF LD.D.R THAT THE ORIGINAL O RDER OF TRIBUNAL WAS NOT A SETTING ASIDE THE ORDER, BUT WAS ONLY A DIRECTION TO THE LD. ASSESSING OFFICER. IN OUR OP INION, THE TERMINOLOGY USED BY THE TRIBUNAL IS VERY CLEAR AND DOES NOT GIVE ROOM FOR ANY SUCH INTERPRETATION. HEN CE, THE LD.CIT(A) WAS JUSTIFIED IN TAKING THE VIEW THAT SECTION WHICH WAS APPLICABLE WAS 153(2A) OF THE ACT . THERE IS NO CASE FOR THE REVENUE IF SEC.153(2A) OF THE ACT IS APPLIED, ORDERS PASSED BY THE LD. ASSESSING OFFICER, PURSUANT TO THE SETTING ASIDE ORDER OF THE TRIBUNAL, WERE WITHIN TIME LIMIT . SENTENCE IN THE ABOVE PARA IN WHICH ASSESSEE IS AGG RIEVED IS THAT THERE IS NO CASE FOR THE REVENUE, IF SECTION 153( 2A) OF THE ACT IS APPLIED, ORDERS PASSED BY THE LD. ASSESSING OFFIC ER, PURSUANT TO THE SETTING ASIDE ORDER OF THE TRIBUNAL, WERE WITHIN TI ME LIMIT. WHAT WE FIND IS THAT ARGUMENT TAKEN BY THE ASSESSEE ALL ALO NG WAS THAT THE APPLICABLE SECTION WAS SECTION 153(2A) OF THE ACT AND NOT SECTION 153(3)(II) OF THE ACT. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD ACCEPTED THIS CONTENTION. AS PER THE LD. COMMISSION ER OF INCOME TAX (APPEALS), THE SECTION THAT OUGHT HAVE BEEN APPLIE D WAS SECTION 153(2A) OF THE ACT AND NOT SECTION 153(3)(II) OF TH E ACT. OBSERVATION OF THE TRIBUNAL IS CLEAR IN THAT ORDER OF THE LD. A SSESSING OFFICER, IF IT WAS PASSED WITHIN THE LIMIT SPECIFIED IN SECTION 153(2A) OF THE ACT, WILL BE VALID. IF LD. ASSESSING OFFICER TAKES A VIEW THAT THE ORDER, IF M.P.NO.123/CHNY/2018 :- 4 -: CONSTRUED AS PASSED U/S.153(2A) OF THE ACT, IS WIT HIN THE TIME LIMIT MENTIONED THEREIN BASED ON THE AVAILABLE RECORDS, IN OUR OPINION HE CANNOT BE FAULTED. IN THE CIRCUMSTANCES, WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL, MUCH LESS ANY MISTAKE WHICH IS GLARING AND APPARENT ON THE FACE OF THE RECORD. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON FRIDAY, THE 24 TH DAY OF AUGUST, 2018, AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( ! . '#'$ ) (ABRAHAM P. GEORGE) % / ACCOUNTANT MEMBER / CHENNAI / DATED:24TH AUGUST, 2018. KV !' #' / COPY TO: 1 . PETITIONER 3. + () / CIT(A) 5. './ 01 / DR 2. 234 / RESPONDENT 4. + / CIT 6. /56 7 / GF