ASST CIT CIR 6(3)(1), V. INDUS THERMAL SYSTEM P.LTD,

MA 148/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3881 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2009-2010
• Appeal Filed On: 06-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K DHAND L AL
• Assessee Lawyers: R K BOTHRA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI , , BEFORE SHRI SANJAY ARORA , AM AND SHRI SANDEEP GOSAIN , JM MA NO. 148/MUM/2015 ( ARISING O UT OF ITA NO. 4072/MUM/2013 ) ( / ASSESSMENT YEAR: 2009 - 10 ) ASST. CIT, CIRCLE - 6(3)(1), ROOM NO. 522, 5 TH FLOOR, AAYKAR BHAVAN, M.K. ROAD, MUMBAI - 400 0 20 / VS. INDUS THERMAL SYSTEMS PVT. LTD. 371, CADELL ROAD, PRABHADEVI, MUM BAI - 400 028 ./ ./ PAN/GIR NO. AAACI2043Q ( / APP LICAN T ) : ( / RESPONDENT ) / APP LICANT BY : SHRI A.K. DHAND L AL / RESPONDENT BY : SHRI R. K. BOTHRA / D ATE OF HEARING : 08/01/2016 DATE OF ORDER : 21 /01/2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS P ETITION BY THE REVENUE AGAINST THE ORDER U/S. 254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 21.01.2015 BY THE TRIBUNAL DISPOSING THE REVENUE S APPEAL IN RESPECT OF THE ASSESSEE - RESPONDENTS ASSESSMENT FOR ASSESSMENT YEAR (A.Y.) 2009 - 10 . 2. THE ADMITTED FACTS OF THE CASE ARE THAT THE ASSESSEES RETURN FOR THE RELEVANT YEAR WAS SUBJECT TO THE VERIFICATION PROCEDU RE UNDER THE ACT UNDER CASS (COMPUTE R A I DED 2 MA NO. 148/MUM/2015 (A.Y. 2009 - 10 ASST. CIT VS. INDUS THERMAL SYSTEMS PVT. LTD. SELECTION SCHEME). AD DITION S TO THE TUNE OF RS.42 LACS WERE MADE IN ASSESSMENT U/S. 143(3) DATED 30/11/2011. THE FIRST APPELLANT AUTHORITY ALLOWED PART RELIEF , UP TO NEARLY 50% OF THE DISPUTED AMOUNT, LEADING TO A PPEALS BEFORE THE T RIBUNAL BOTH BY THE ASSESSEE AND THE REVENUE . THE SAME, HOWEVER, CAME TO BE HE AR D BY IT SEPARATELY. THE ASSESSEE S APPEAL ( IN ITA NO. 2943/MUM/2013) WAS DECIDED BY THE T RIBUNAL ON 23/07/2014 ON THE JURISDICTIONAL AS PECT, HOLDING THAT AN ASSESSMENT , W H ERE MADE BY SELECTING A RETURN UNDER CASS ON THE BASIS OF AIR INFORMATION, CAN BE MADE ONLY QUA MATTERS ON WHICH AIR INFORMATION STANDS RECEIVED, AND THAT ENQUIR Y IN TO OTHER ASPECTS OF THE RETURN COULD BE MADE IN ASSESSMENT PROCEEDINGS, THUS INITIATED , ONLY UPON SEEKING PERMISSION FROM THE CO MPETENT AUTHORITY, IN TERMS OF AND IN VIEW OF THE CBDT I NSTRUCTION DATED 08/09/2010 . T HE SAME W AS OBSERVED NOT TO HAVE BEEN OBTAINED IN THE INSTANT CASE IN - AS - MUCH AS THERE WAS NOTHING ON RECORD TO EXHIBI T THE SAME. THE ASSESSMENT WAS ACCORDINGLY HELD BY IT AS BAD IN LAW. THE REVENUE S APPEAL, HE AR D BY THE T RIBUNAL ON 03.12.2014 , STOOD DISMISSED ; IT HOLDING THE SAME AS NOT MAINTAINABLE IN VIEW OF THE ASSESSMENT HAVING BEEN ALREADY HELD BY THE T RIBUNAL , VID E ITS ORDER DATED 23. 7 .2014 SUPRA , AS BAD IN LAW. THE REVENUE HAS NOW CHALLENGED THE SAID ORDER, STATING THAT THE SELECTION OF A RETURN OF INCOME UNDER CASS COULD BE EITHER BASED ON AIR INFORMATION OR BY RANDOM SAMPLING . THE SELECTION IN THE INSTANT CA SE WAS PER THE LAT T ER ROUTE , FALLING THUS UNDER THE COMPULSORY CATEGORY, SO THAT IT WAS NOT SUBJECT TO ANY CONSTRAINT AND, CONSEQUENTLY, THE CBDT I NSTRUCTION AFORE - REFERRED. T HE A SSESSING O FFICER WAS THUS NOT OBLIGED TO, WHILE MAKING THE ASSESSMENT , CONSID ER ONLY THE SUBJECT MATTER OF THE AIR INFORMATION . THE IMPUGNED ORDER WAS, ACCORDING L Y , PRAYED FOR BEING RE CALLED FOR DECIDING THE REVENUES APPEAL AFRESH, I.E., ON MERITS. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE REVENUES CLAIM WOULD REQUIRE BEING ESTABLISHED ON THE BASIS OF THE MATERIAL ON RECORD, I.E., WHETHER THE SELECTION UNDER CASS WAS FOLLOWING THE AIR 3 MA NO. 148/MUM/2015 (A.Y. 2009 - 10 ASST. CIT VS. INDUS THERMAL SYSTEMS PVT. LTD. R O U T E OR PER RANDOM SAMPLING. WE ARE CONSCIOUS , WHEN WE SAY SO , THAT THE TRIBUNAL COULD NOT HAVE PRESUMED IT TO BE ON THE BASIS OF AIR INFORMATION WHERE IT IS NOT BORNE OUT BY THE RECORD, AND WHERE SO PRESUMED BY IT, IN - AS - MUCH AS IT HAS LED TO A PREJUDICE TO THE REVENUE , WOULD INFLICT ITS ORDER WITH A MISTAKE APPARENT FROM THE RECORD (REFER : HONDA S I EL POWER PRODUCTS VS . CIT [2007] 295 ITR 466 (SC ) ) . HOWEVER, IT IS NOT THE IMPUGNED ORDER, BUT THAT WHICH IT FOLLOW S THEREIN , I.E., DECIDING THE ASSESSEES APPEAL (IN ITA NO. 2943/MUM/2013 DATED 23.7.2014) , WHEREIN THE ASSESSMENT WA S HELD AS WITHOUT JURISDICTION, THAT WOULD A CCORDINGLY NEED TO BE IMPUGNED. ON THIS BEING EXPRESSED BY THE BENCH DURING HEARING , THE LD. DR WOULD SUBMIT THAT THE SAID COURSE HA D ALREADY BEEN FOLLOWED BY THE REVENUE, FILING A SEPARATE PETITION (IN M A NO. 439/MUM/2014) IN RESPECT OF THE SAID ORDER BY THE TRIBUNAL ON 18/12/2014 . FURTHER, I N - AS - MUCH AS THE ORDER BY THE TRIBUNAL IN THE INSTANT CASE IS ONLY CONSEQUENTIAL, THE INSTANT APPLICATION BE TAGGED ALONG WITH M A NO. 439/MUM/2014 FOR HEARING AND COMMON DISPOSAL. WE FIND THIS AS NOT ONLY REASONABLE BU T ALSO INCUMBENT ON THE TRIBUNAL. SO, HOWEVER, ON TH IS BEING EXPRESSED BY THE BENCH , IT WAS BROUGHT TO OUR NOTICE BY THE LD. AR, THE ASSESSEES COUNSEL , THAT THE REVENUES APPEAL WOULD NOT SURVIVE IN VIEW OF THE LATEST I NSTRUCTION BY THE BOARD, I.E., CIRCU LAR NO. 21 OF 2015 DATED 10.12.2015, ENHANCING THE THRESHOLD MONETARY LIMIT FOR THE REVENUES APPEAL BEFORE THE TRIBUNAL U/S. 268A TO RS.10 LACS ; THE SAME BEING APPLICABLE TO THE PENDING APPEALS AS WELL, PLACING A COPY THEREOF ON RECORD. AS SUCH, EVEN IF T HE REVENUES APPLICATION IS DECIDED IN ITS FAVOUR, RECALLING THE IMPUGNED ORDER , THE REVENUES APPEAL WOULD HAVE TO BE NECESSARILY DISMISSED AS UNADMITTED BY THE TRIBUNAL IN VIEW OF SECTION 268A OF THE ACT. THE SAID CIRCULAR HAS BEEN PERUSED BY US. THE SAM E CONTAINS NO BAR OR SAVING CLAUSE IN RESPECT OF CROSS APPEALS. THE REVENUES APPEAL WOULD THUS STAND TO BE DECIDED ON ITS MAINTAINABILITY U/S.268A INDEPENDENTLY OF THE ASSESSEES APPEAL FOR THE SAME YEAR, EVEN IF THE SUBJECT MATTER OF THE CROSS APPEALS I S THE SAME. THE TAX - EFFECT OF THE REVENUE S APPEAL IS ADMITTEDLY BELOW RS .10 LACS. THERE IS ACCORDINGLY , IN VIEW OF THE SAID I NSTRUCTION BY THE BOARD U/S. 268A, TO WHICH 4 MA NO. 148/MUM/2015 (A.Y. 2009 - 10 ASST. CIT VS. INDUS THERMAL SYSTEMS PVT. LTD. REGARD HAS TO B E MADE BY THE TRIBUNAL IN TERMS OF THE SAID PROVISION, NO PURPOSE IN RECALLING THE IMPUGNED ORDER. WE THEREFORE DECLINE INTERFERENCE , EVEN AS , AS SHALL BE APPARENT AND, WITHOUT DOUBT , THE IMPUGNED ORDER WOULD HENCE - FORTH REQUIRE BE ING READ ALONG WITH THIS ORDER, WHICH WOULD FORM AN INTEGRAL PART OF THE SAID ORDER. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE MISCELLANEOUS A PPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 08 , 201 6 AT THE CONCLUSION OF THE HEARING ITSELF. SD/ - SD/ - ( SANDEEP GOSAIN ) (S ANJAY ARORA) / J UDICIAL ME MBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 21 . 01.2016 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPE LLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI