East India Petroleum Pvt. Ltd., Hyd, Hyderabad V. ACIT, Circle-2(2), Hyderabad, Hyderabad

MA 124/HYD/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4052 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 08-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 10-11-2015
• Court: TRIBUNAL
• Department Lawyers: M SITARAM
• Assessee Lawyers: P MURALIKRISHNA
• Keywords: Revised return; Reassessment proceedings
• Section: 115JB; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH ES A , HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M .A. NO. 1 2 4 /H YD /201 5 ( ARISING OUT OF ITA NO. 2 3 5 /H YD /201 3 & C.O. NO. 18/H YD /2013 ) ASSESSMENT YEAR: 20 0 8 - 0 9 M/S. EAST INDIA PETROLEUM PVT. LTD., HYDERABAD [PAN: A AAC E 4494K ] VS ASSISTANT C OMMISSIONER OF I NCOME T AX , CIRCLE - 2(2), HYDERABAD (APPL IC ANT) (RESPONDENT) FOR ASSESSEE : SHRI P. MURALI KRIS HNA , AR FOR REVENUE : SHRI M. SITARAM , DR DATE OF HEARING : 08 - 0 1 - 201 6 DATE OF PRONOUNCEMENT : 10 - 0 2 - 201 6 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY ASSESSEE AGAINST THE ORDER OF ITAT IN ITA NO. 2 35/HYD/2013 AND C.O. NO. 18/HYD/2013 DATED 29 - 07 - 2015. ASSESSEE PREFERRED THE PRESENT MISCELLANEOUS APPLICATION STATING AS UNDER: M. A. NO. 12 4 / HYD / 201 5 : - 2 - : THE PRINCIPLE LAID DOWN BY THE APEX COURT IN CIT VS. SUN ENGINEERING WORKS (P) LTD., 198 ITR 297 (SC) IS THAT IT IS NOT O PEN TO THE ASSESSEE TO SEEK A REVIEW OF CONCLUDED ITEMS UNCONNECTED WITH THE ESCAPEMENT OF INCOME WHILE RE - COMPUTING THE INCOME ESCAPING ASSESSMENT. THE PROFOUND FACT IS THAT THIS DECISION OF THE HON'BLE SUPREME COURT HAS NO APPLICATION TO THE FACTS OF TH E CASE; HENCE THIS DECISION WAS NOT REFERRED EITHER IN THE ORDER OF THE ASSESSING OFFICER DATED 30 - 12 - 2011 OR IN THE ORDER OF THE CIT (APPEALS) DATED 24 TH DECEMBER 2012. THIS GROUND (NO.3) TAKEN BY THE DEPARTMENT FOR THE FIRST TIME BEFORE THE HON'BLE ITAT DID NOT ARISE EITHER OUT OF THE ORDER OF THE ASSESSING OFFICER OR OUT OF THE ORDER OF THE CIT (APPEALS). HENCE THE DIRECTION OF THE HON'BLE ITAT IN PARA - 17 OF THE ORDER DATED 29 TH JULY 2015 IS A MISTAKE APPARENT FROM RECORD. FURTHER, THE FINDING IN PARA - 16 THAT THE ASSESSEE HAS NOT FILED REVISED RETURN AND HENCE THE RATIO OF THE DECISION IN THE CASE OF GOETZ INDIA LTD., VS. CIT (SUPRA) IS APPLICABLE IS CONTRARY TO THE FACTS ON RECORD AS IN THE INSTANT CASE THE CIT(APPEALS) ENTERTAINED THE CLAIM WHICH I S IN ACCORDANCE WITH THE PRINCIPLES LAID DOWN BY THE APEX COURT IN THE SAME CASE. THESE ARE PATENT MISTAKES APPARENT FROM RECORD WARRANTING RECTIFICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT 1961. IT WAS PRAYED THAT IN VIEW OF THE ABOVE MISTAKES A PPARENT FROM RECORD, THE ORDER MAY BE RECALLED. 2. BRIEFLY STATED, ASSESSEE IS ENGAGED IN THE BUSINESS OF STORAGE OF OIL AND GAS AND RETURN OF INCOME FILED WAS ACCEPTED U/S 143(1). CONSEQUENT TO SURVEY OPERATIONS U/S. 133A, ASSESSMENT WAS REOPENED U/S. 148 AND IN THE COURSE OF RE - ASSESSMENT PROCEEDINGS, ASSESSEE MADE CERTAIN FRESH CLAIMS WHICH THE ASSESSING OFFICER (AO) DID NOT ALLOW BASED ON THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF GOETZ IN DIA LTD., VS. CIT [284 ITR 323]. H OWEVER, IN APPEAL, LD. CIT(A) ALLOWED THE CLAIMS AND GAVE RELIEF TO ASSESSEE CONSEQUENT TO WHICH, REVENUE PREFERRED PRESENT IMPUGNED APPEAL. THE ITAT A BENCH AFTER CONSIDERING THE RIVAL CONTENTIONS, INVOKED THE PRINCIPLES LAID DOWN BY THE SUPREME COURT IN THE CASE OF CIT VS. SUN ENGINEERING WORKS (P) LTD., [198 M. A. NO. 12 4 / HYD / 201 5 : - 3 - : ITR 298] , ALLOWED THE REVENUES APPEAL SETTING ASIDE THE ORDER OF CIT(A) ON THIS ISSUE. 3. LD. COUNSEL REITERATING THE SUBMISSIONS MADE IN THE PETITION SUBMITTED THAT ASSESSEE HAS CORRECTLY CLAIM ED BEFORE AO AND ISSUE OF BRINING THE PRINCIPLES IN THE CASE OF CIT VS. SUN ENGINEERING WORKS (P) LTD., [198 ITR 298] (SUPRA) WAS NOT PUT BEFORE THE COUNSEL AND THEREFORE, ITAT WAS NOT CORRECT IN ADJUDICATING THE MATTER WHICH WAS NOT AN ISSUE BEFORE THE LO WER AUTHORITIES. IT IS FURTHER SUBMITTED THAT ITAT AT THE SAME BREATH SET ASIDE THE ISSUE ON THE SECOND ISSUE U/S. 115JB TO THE AO TO DO ACCORDING TO THE LAW , WHICH ITSELF CONTRADICTS THE FINDING GIVEN IN PARA 17. IT WAS FURTHER SUBMITTED THAT CROSS - OBJE CTION BY ASSESSEE WAS ALSO ALLOWED. THEREFORE, THE FINDING OF ITAT IS NOT CORRECT. IT WAS PRAYED THAT THE ORDER MAY BE RECALLED. LD. DR HOWEVER, SUBMITTED THAT THE ITAT HAS CONSIDERED THE ORDER OF THE SUPREME COURT ON THE ISSUE AND HENCE THERE IS NO MIS TAKE APPARENT FROM RECORD. IT WAS FURTHER SUBMITTED THAT REVENUE HAS RAISED THE GROUND ITSELF ON THE APPLICATION OF PRINCIPLES LAID DOWN IN THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SUN ENGINEERING WORKS (P) LTD., [198 ITR 298] (SUPRA) AND REFERRED TO GROUND NO. 3 RAISED IN THE APPEAL OF REVENUE. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE RECORD. IN THE RE - ASSESSMENT PROCEEDINGS, ASSESSEE MADE A CLAIM FOR REDUCING THE A M OUNT OF RS. 9 , 26 , 00 , 3 05/ - , WHICH WAS OFFERED AS INCOME IN THE P&L A/C BY ASSESSEE. THIS CLAIM IN THE REASSESSMENT PROCEEDINGS WAS MADE BY WAY OF REVISED COMPUTATION WITHOUT MAKING ANY REVISED RETURN. IN FACT, THE HON'BLE ITAT CONSIDERED THE FACTS CORRECTLY AND INVOKED THE M. A. NO. 12 4 / HYD / 201 5 : - 4 - : PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SUN ENGINEERING WORKS (P) LTD., [198 ITR 298] (SUPRA) WHICH WAS EXTRACTED IN PARA 16 OF THE ORDER. SINCE THE ASSESSMENT PROCEEDINGS WERE INITIATED FOR BRINGING TO TAX ESCAPED INCOME AND NOT FOR GIVING RELIEF TO ASSESSEE ON SETTLED ISSUES, THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT WERE CORRECTLY INVOKED AS THE ASSESSMENT WAS THE RE - ASSESSMENT CONSEQUENT TO THE PROCEEDINGS U/S. 147. T HERE IS NO MISTAKE APPARENT FROM RECORD IN APPLICATION OF THE PRINCI PLES LAID DOWN BY THE HON'BLE SUPREME COURT ON THE ISSUE. MOREOVER, THE REVENUE ITSELF HAS RAISED GROUND NO . 3 IN THE APPEAL THAT LD. CIT(A)S DECISION IS CONTRARY TO THE DECISION OF HON'BLE SUPREME COURT. THEREFORE, IT IS NOT CORRECT ON THE PART OF ASSE SSEE TO CONTEST THAT APPLICATION OF PRINCIPLES LAID DOWN BY THE SUPREME COURT WAS NOT BEFORE THE PARTIES WHEN THE CASE WAS TAKEN UP. THEREFORE, PART OF THE SUBMISSIONS MADE IN THE PETITION THAT THIS DECISION WAS NOT REFERRED TO EITHER IN THE ORDER OF THE AO OR IN THE ORDER OF THE CIT(A) IS NOT CORRECT , AS THE SAID PRINCIPLES ARE WELL ESTABLISHED BY THE HON'BLE SUPREME COURT WAY BACK AND LD. CIT(A)S ORDER IS CONTRARY TO THE ABOVE PRINCIPLES. SINCE REVENUE ITSELF HAS RAI S ED THE GROUND, ASSESSEE IS PUT TO N OTICE AND THEREFORE, THE GRIEVANCE ON THAT CANNOT BE MAINTAINED AT THIS STAGE. IT IS ALSO A FACT THAT ASSESSEE ALSO NOT FILED ANY REVISED RETURN AND ONLY FILED REVISED COMPUTATION ON WHICH RELIEF CANNOT BE GRANTED IN THE RE - ASSESSMENT PROCEEDINGS WHEN ASS ESSEE VOLUNTARILY OFFERED THE INCOME AND WAS PROCESSED U/S. 143(1) BY THE AO. IN VIEW OF THAT, WE DO NOT FIND ANY MISTAKE IN THE FINDING GIVEN BY THE ITAT ON THIS ISSUE. 4.1. WITH REFERENCE TO THE CONTENTION THAT ITAT HAS ALLOWED THE CLAIMS U/S. 115JB AN D ALSO GAVE RELIEF IN THE CROSS - OBJECTION, A S M. A. NO. 12 4 / HYD / 201 5 : - 5 - : CAN BE SEEN FROM THE ORDERS, THE CLAIM U/S. 115JB IS CONSEQUENTIAL IN NATURE WHICH COULD BE CONSIDERED EVEN UNDER REGULAR PROVISION S OF SECTION 154/155 , BEING CORRECT COMPUTATION OF BROUGHT FORWARD LOSSES. EVE N WITHOUT THE PROCEEDINGS U/S. 148, ASSESSEE IS ENTITL ED FOR RELIEF BY APPLICATION OF CORRECT CARRIED FORWARD LOSSES. THEREFORE, ALLOWING ASSESSEES CLAIM I N NO WAY VIOLATES THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE ABOVE REFERRED CASE . AS FAR AS THE CROSS - OBJECTION IS CONCERNED AS RAISED BY ASSESSEE, IT WAS THE CIT(A), WHO DIRECTED THE AO TO RE - ADJUST THE COST OF ASSET IN HIS ORDER . AO HAS NOT MADE ANY ADJUSTMENT IN THE ORDER AND THE ISSUE WAS NOT BEFORE AO. THIS DECISION OF THE CIT(A ) IS CONTRARY TO THE FACTS AND PRINCIPLES LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT. THEREFORE, THE CROSS - OBJECTION OF ASSESSEE WAS ALLOWED. THERE IS NO VIOLATION OF ANY PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN CONSIDERING THE OTHER TWO ISSU ES BOTH IN FAVOUR OF ASSESSEE WHILE DISPOSING OF THE APPEAL. IN VIEW OF THIS, WE DO NOT SEE ANY REASON TO CONSIDER ASSESSEES APPLICATION , SO AS TO REVIEW THE DECISION GIVEN BY THE ITAT IN THE GUI SE OF APPLICATION U/S. 254(2). MISCELLANEOUS APPLICATION PR EFERRED BY ASSESSEE IS ACCORDINGLY, DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 10 TH FEBRUARY, 201 6 SD/ - SD/ - (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL ME MBER ACCOUNTANT MEMBER HYDERABAD, DATED 10 TH FEBRUARY, 2016 TNMM M. A. NO. 12 4 / HYD / 201 5 : - 6 - : COPY TO : 1. M/S . EAST INDIA PETROLEUM PVT. LTD., 202 , ROXANA TOWERS, GREENLANDS, BEGUMPET, HYDERABAD. 2 . ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 2(2), HYDERABAD. 3 . CIT (APPEALS) - I II , HYDERABAD. 4. CIT - I I , HYDERABAD. 5 . D.R. ITAT, HYDERABAD. 6 . GUARD FILE.