M/s. Kumbhat Art Exports, JODHPUR V. DCIT, JODHPUR

MA 13/JODH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2353 (ITAT-JODHPUR)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 13-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Difference of opinion; Change of opinion
• Section: 147; 148; 11; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA , JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER MA NO S . 1 3 TO 15 /JU/201 4 A / O NO. 361, 363 & 393 /JU/20 11 [ A.Y S : 2004 - 05, 200 5 - 0 6 & 2006 - 07 ] M/S. KU MBHAT EXPORTS VS. DY. CIT, CIRCLE - 1, JODHPUR. JODHPUR. PAN NO. AAEFK 1440 N (APPELLANT) (RESPONDENT) AS SESSEE B Y : SHRI R.R. SINGHVI DEPARTMENT B Y : SHRI JAI SINGH DATE OF H EARING : 28 .0 8 .201 4 DATE OF PRO NOUNCEMENT : 15 . 0 9 . 201 4 ORDER PER HARI OM MARATHA , J .M. TH ESE MISCELLANEOUS A PPLICATION S ARISING OUT OF ORDER DATED 2 1 .0 2 .20 13 IN ITA NO S . 361, 382 & 393 /JU/201 0 , FOR A.Y S . 2004 - 05, 200 5 - 0 6 & 2006 - 07 HA VE BEEN FILED BY THE ASSESSEE. 2 2. IN THE SAI D APPLICATION FILED U/S 254(2) OF THE INCOME - TAX ACT, 1961 ['THE ACT' FOR SHORT] THAT THE ASSESSEE HAS RAISED A LEGAL ISSUE REGARDING REOPENING CHALLENGING THE ACTION U/S 147 R.W.S 148 OF THE ACT THAT THE REOPENING IS BASELESS AND DESERVES TO BE QUASHED. THIS GROUND REMAINED UNDISPOSED OFF AND THEREFORE, THROUGH THESE THREE MAS PERTAINING TO THREE A.YS, IT HAS BEEN PRAYED THAT THE LEGAL ISSUE RAISED IN THESE APPEALS SHOULD BE ADJUDICATED UPON. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND TH AT INADVERTENTLY, THIS ISSUE COULD NOT BE DECIDED. THEREFORE, WE RECALL THE GROUNDS RELATING TO REOPENING IN ALL THESE YEARS AND SINCE WE HAVE ALREADY HEARD THE PARTIES ON THIS ISSUE, WE PROCEED TO DECIDE THE ISSUE NOW AND HERE. 4 . IT HAD BEEN ARGUED BY THE LD. A.R THAT THE ASSESSEE HAS FURNISHED FULL AND COMPLETE FACTS RELATING TO THE ISSUE OF REOPENING AND ALL FACTS WERE AVAILABLE ON RECORD AT THE TIME OF A R I SI NG OF THE ORIGINAL ASSESSMENT ORDER. THE REOPENING IS NOT ON ACCOUNT OF FAILURE ON THE PART O F THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. IT WAS ALSO ARGUED 3 THAT THE REOPENING HAS BEEN DONE BEYOND THE FOUR YEARS AFTER THE ORIGINAL ASSESSMENT WAS MADE AND THE REASSESSMENT ORDER IS ALSO BARRED BY LIMITATION. THEREFORE, WITH THESE TWO REASONS, IT HAS BEEN PRAYED THAT THE REASSESSMENT ORDER SHOULD ITSELF BE DECLARED AS NULL AND VOID AB INITIO. 5. ON THE OTHER HAND, IN HIS RIVAL SUBMISSIONS, THE LD. D.R. CONTESTED THE SAME AND SUBMITTED THAT THE A.O HAD RECORDED THE REASONS FOR T AKING ACTION U/S 147 R.W.S 148 OF THE ACT AND THE SAME WERE ALSO CONNECTED TO THE ASSESSEE. THE A.O HAD DISPOSED OF THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST THE REASONS RECORDED. IT WAS STATED THAT THE REOPENING WAS INITIATED IN VIEW OF THE DECISION OF THE HON'BLE SUPREME HIGH COURT IN THE REGARDING DEPB ISSUE AND IT WAS NOT BASED ON CHANGE OF OPINION OF THE A.O. ON THE ISSUE OF LIMITATION, NOTHING WAS STATED EITHER BY THE LD. D.R NOR IT HAS BEEN MENTIONED IN THE APPELLATE ORDER. 6. WE HAVE HEARD T HE RIVAL SUBMISSIONS AND HAVE CAREFULLY GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. WE HAVE FOUND THAT THE IMPUGNED ISSUE WITH REGARD TO REOPENING 4 IN THE LIGHT OF THE JUDGMENT OF THE HON'BLE SUPREME HIGH COURT LIBERTY INDIA VS. CIT 28 DTR 73 DOE S NOT APPLY TO THE FACTS OF THIS CASE AND WE HAVE ALSO TAKEN A FAVOURABLE VIEW TO THE ASSESSEE. THEREFORE, IT IS A CLEAR CASE OF CHANGE OF OPINION AND THEREFORE, REOPENING IS NOT VALID AND IS BAD IN LAW. THE REOPENING WAS MADE AFTER 31.3.2010 AND TIME OF FOUR YEARS HAD ALREADY LAPSED. THEREFORE, RE OPENING IS ALSO TIME BARRED. ACCORDINGLY, WE HOLD THAT ALL THE REASSESSMENT ORDERS OF THESE THREE YEARS ARE AB INITIO VOID AND THEREFORE, WE QUASH THEM AND WE ALLOW THE LEGAL ISSUE RAISED IN ALL THESE YEARS. WITH THIS OUR FINDING, THE ORIGINAL ORDER OF THE TRIBUNAL NEEDS TO BE AMENDED. THEREFORE, WE AMEND PARA 42 AT PAGE 36 OF THE TRIBUNAL ORDER BY REPLACING THE SENTENCE AT THE END OF THE PARA THEREFORE, THESE APPEALS ARE PARTLY ALLOWED WITH THE SENTENCE T HEREFORE, THESE APPEALS ARE ALLOWED. 5 . IN THE RESULT, ALL THE M.A S . OF THE ASSESSEE ARE ALLOWED. ORDER PRON OUNCED IN THE COURT ON 15 TH SEPTEMBER , 201 4 . SD/ - SD/ - (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEM B ER DATED : 15 TH SEPTEMBER , 2014 . VL/ - 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR