Jhumarlal, CHENNAI V. ITO, CHENNAI

MA 125/CHNY/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5694 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 26-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S NATARAJA
• Assessee Lawyers: T BANUSEKAR
• Keywords: Reopening of assessment
• Section: 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , !',$ %& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER '' / M.P. NOS.123 & 124/MDS/2017 (IN I.T.A. NOS.2762 & 2763/MDS/2016) ( )( / ASSESSMENT YEARS : 2003-04 & 2004-05 SMT. CHANDRA BAI, 87, MINT STREET, SOWCARPET, CHENNAI - 600 079. PAN : AADPC 6871 E V. THE INCOME TAX OFFICER, NON CORPORATE WARD 4(3), CHENNAI - 600 006. (+,( /PETITIONER) (+-,./ RESPONDENT) '' / M.P. NOS.125 & 126/MDS/2017 (IN I.T.A. NOS.2764 & 2765/MDS/2016) ( )( / ASSESSMENT YEARS : 2003-04 & 2004-05 SHRI JHUMARLAL, 87, MINT STREET, SOWCARPET, CHENNAI - 600 079. PAN : AAFPJ 7980 F V. THE INCOME TAX OFFICER, NON CORPORATE WARD 4(3), CHENNAI - 600 006. (+,( /PETITIONER) (+-,./ RESPONDENT) +,( 0 1 /PETITIONERS BY : SH. T. BANUSEKAR, CA +-,. 0 1 / RESPONDENT BY : SH. S. NATARAJA, JCIT 2 0 3$ / DATE OF HEARING : 07.07.2017 4!) 0 3$ / DATE OF PRONOUNCEMENT : 27.07.2017 2 M.P. NOS.123 TO 126/MDS/17 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: BOTH THE INDEPENDENT ASSESSEES HAVE FILED THESE MISCELLANEOUS PETITIONS. 2. SH. T. BANUSEKAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT IN THE CASE OF THE BOTH THE ASSESSEE S, FOR ASSESSMENT YEAR 2003-04, A SPECIFIC GROUND WITH REG ARD TO LIMITATION AS GROUND NO.4 WAS RAISED. BUT, THIS WAS NOT CONSI DERED AND NOT DISPOSED OF BY THIS TRIBUNAL. THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE, NON-CONSIDERATION OF THE GROUND IS ERROR IN THE ORDER OF THIS TRIBUNAL DATED 09.03.2017. 3. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT SI MILARLY FOR ASSESSMENT YEAR 2004-05, IN THE CASE OF BOTH THE AS SESSEES, THE ASSESSMENT WAS REOPENED ON THE BASIS OF DEPARTMENTA L VALUATION OFFICERS REPORT. THE LD. REPRESENTATIVE FURTHER S UBMITTED THAT DURING THE COURSE OF ARGUMENT IN APPEAL, PLACING HIS RELIA NCE ON THE JUDGMENT OF APEX COURT IN CIT V. DHARIYA CONSTRUCTI ON COMPANY (2010) 328 ITR 515, SUBMITTED THAT THE ASSESSMENT C ANNOT BE REOPENED UNDER SECTION 147 OF THE INCOME-TAX ACT, 1 961 (IN SHORT 'THE ACT') ON THE OPINION GIVEN BY DEPARTMENTAL VAL UATION OFFICER. 3 M.P. NOS.123 TO 126/MDS/17 THIS ARGUMENT OF THE LD.COUNSEL WAS NOT CONSIDERED AND DISPOSED OF BY THIS TRIBUNAL, THEREFORE, ACCORDING TO THE LD . REPRESENTATIVE, THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL. 4. ON THE CONTRARY, SHRI S. NATARAJA, THE LD. DEPAR TMENTAL REPRESENTATIVE, SUBMITTED THAT THE ISSUE OF LIMITAT ION RAISED BY THE ASSESSEES WAS NOT CONSIDERED BY THIS TRIBUNAL FOR A SSESSMENT YEAR 2003-04. FOR ASSESSMENT YEAR 2004-05, THE JUDGMENT OF APEX COURT WAS NOT TAKEN INTO CONSIDERATION, THEREFORE, HE SUBMITTED THAT THE TRIBUNAL MAY DECIDE THE ISSUE IN ACCORDANCE WIT H LAW. 5. WE HAVE HEARD THE SUBMISSIONS OF LD. REPRESENTAT IVE FOR THE ASSESSEES AND THE LD. DEPARTMENTAL REPRESENTATIVE A ND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. FOR ASS ESSMENT YEAR 2003-04, THE ASSESSEES HAVE RAISED A SPECIFIC GROUN D WITH REGARD TO LIMITATION FOR REOPENING OF ASSESSMENT. THIS IS SUE WAS NOT CONSIDERED BY THIS TRIBUNAL. THEREFORE, NON-CONSID ERATION OF THE SPECIFIC GROUND RAISED BY THE ASSESSEE IS AN ERROR WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. SIMILARLY, F OR THE ASSESSMENT YEAR 2004-05, THE ASSESSEES HAD BROUGHT TO THE NOTI CE OF THE BENCH THE JUDGMENT OF APEX COURT IN DHARIYA CONSTRUCTION COMPANY (SUPRA) WHICH WAS ALSO OMITTED TO BE CONSIDERED BY THIS TRIBUNAL WHILE DISPOSING OF THE APPEAL. THE NON-CONSIDERATI ON OF THE 4 M.P. NOS.123 TO 126/MDS/17 SUPREME COURT JUDGMENT IS AN ERROR WITHIN THE MEANI NG OF SECTION 254(2) OF THE ACT. SINCE REOPENING OF ASSESSMENT G OES TO THE ROOT OF THE MATTER, THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE APPEAL NEEDS TO BE RECONSIDERED. IN OTHER WORDS, T HE ISSUE OF LIMITATION AND REOPENING OF ASSESSMENT COULD NOT BE EFFECTIVELY CONSIDERED UNLESS THE ORDER IS RECALLED AND THE APP EAL IS REHEARD. ACCORDINGLY, THE ORDER OF THE TRIBUNAL FOR ASSESSME NT YEARS 2003-04 AND 2004-05 IN I.T.A. NOS.2764 & 2765/MDS/2016 AND I.T.A. NOS.2762 & 2763/MDS/2016 DATED 09.03.2017 IS HEREBY RECALLED. NOW THESE APPEALS OF THE ASSESSEES STAND RESTORED O N THE FILE OF THIS TRIBUNAL. THE REGISTRY IS DIRECTED TO POST TH E APPEAL FOR FINAL DISPOSAL ON 30.08.2017. SINCE THE DATE OF HEARING WAS ANNOUNCED IN THE PRESENCE OF BOTH THE PARTIES, IT MAY NOT BE NECESSARY FOR THE REGISTRY TO ISSUE A SEPARATE NOTICE OF HEARING. IN OTHER WORDS, A COPY OF THIS ORDER SHALL BE TREATED AS NOTICE OF HE ARING. 6. WITH ABOVE OBSERVATION, THE MISCELLANEOUS PETITI ONS FILED BY THE ASSESSEES STAND ALLOWED. 5 M.P. NOS.123 TO 126/MDS/17 ORDER PRONOUNCED COURT ON 27 TH JULY, 2017 AT CHENNAI. SD/- SD/- ( !' ) ( ... ) (SANJAY ARORA) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 6 /DATED, THE 27 TH JULY, 2017. KRI. 0 +37' 8')3 /COPY TO: 1. +,( / PETITIONER 2. +-,. /RESPONDENT 3. 2 93 () /CIT(A) 4. 2 93 /CIT 5. ': +3 /DR 6. ;( < /GF.