Sree Raamu Hotels, Coimbatore V. ITO, Coimbatore

MA 189/CHNY/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4225 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 01-04-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 28-10-2015
• Court: TRIBUNAL
• Department Lawyers: S SURESH KUMAR ADDITIONAL
• Assessee Lawyers: A ARJUNARAJC A
• Keywords: Scheme of amalgamation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , ! . ' #$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G.PAVAN KUMAR, JUDICIAL MEMBER M.P.NO.189/MDS./2015 (I.T.A.NO.821 /MDS./2013 ASSESSMENT YEAR :2009-10) SREE RAAMU HOTELS , 65,DAVEY & CO., LANE GEETHA HALL ROAD, COIMBATORE 641 018. VS. INCOME TAX OFFICER, WARD-III(1), COIMBATORE. PAN AAVFS 1374 E ( %& / APPELLANT ) ( '(%& / RESPONDENT ) / APPELLANT BY : MR.A.ARJUNARAJ,C.A / RESPONDENT BY : MR.S.SURESH KUMAR, ADDITIONAL CIT, D.R / DATE OF HEARING : 01.04.2016 /DATE OF PRONOUNCEMENT : 06.04.2016 ) / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS PETITION, THE ASSESSEE SEEK S RECTIFICATION OF THE ORDERS OF THE TRIBUNAL IN ITA NO.821/MDS./20 13 DATED 17.04.2015 FOR ASSESSMENT YEAR 2009-10. M.P. NO.189/MDS/2015 2 2. IN THE APPEAL, THE ASSESSEE HAS RAISED THE ADDI TIONAL GROUNDS BEFORE THIS TRIBUNAL WITH REGARD TO JURISDICTION OF THE LD. ASSESSING OFFICER TO ASSESS THE ASSESSEE ON THE REASON THAT T HE ASSESSEE RETURNED THE INCOME AT ` 5,30,406/-. AS PER THE INSTRUCTIONS OF CBDT, ITO WARD-III(1),COIMBATORE HAS NO JURISDICTION TO I SSUE NOTICE U/S.143(2) OF THE ACT AND CONSEQUENT ASSESSMENT ORD ER PASSED IS NULL AND VOID. THE TRIBUNAL, WHILE CONSIDERING THI S ADDITIONAL GROUND REMANDED THE MATTER TO LD.CIT(A) TO CONSIDER AFRESH BY FOLLOWING OBSERVATIONS:- 9. AS WE REMIT THE ISSUE OF VERY JURISDICTION OF THE AO IN COMPLETING THE ASSESSMENT , WE ARE NOT GOING INTO M ERITS OF THE ADDITIONAL/DISALLOWANCE MADE IN THE ASSESSMENT ORDER. SINCE THE JURISDICTION OF THE AO IN COMPLETING THE ASSESSMENT HAS BEARING ON THE ADDITIONS/DISALLWOAN CES MADE IN THE ASSESSMENT ORDER, WE REMIT ALL THE ISUS ES TO THE CIT(A), WHO SHALL DECIDE THOSE ISSUES BASED ON THE OUTCOME OF DECISION ON JURISDICTION OF THE AO IN ASSESSING THE INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10. M.P. NO.189/MDS/2015 3 ACCORDING TO THE LD.A.R, THE ABOVE OBSERVATIONS OF THE TRIBUNAL IS DETRIMENTAL TO THE INTEREST OF THE ASSESSEE, SINCE THE LD.CIT(A) ON EARLIER OCCASION HAS GIVEN CERTAIN RELIEF TO THE AS SESSEE ON WHICH THE DEPARTMENT HAS NOT COME ON APPEAL BEFORE THE TRIBUN AL, WHICH IS REACHED FINALITY. NOW REMANDING THE ENTIRE ISSUE T O THE FILE OF THE LD.CIT(A) TO DECIDE THE ADDITIONAL GROUND AND THERE AFTER, DECIDE THE ISSUES RAISED BY THE ASSESSEE WITH REGARD TO ADDITI ON/DISALLOWANCE MADE BY THE AO AFTER DECIDING THE ISSUE OF JURISDIC TION OF THE AO. THE LD.A.R SUBMITTED THAT BY THIS OBSERVATION OF THE TR IBUNAL, THE ISSUE, WHICH HAS REACHED FINALITY WOULD BE DISTURBED. FUR THER, HE SUBMITTED THAT THE TRIBUNAL SHOULD HAVE DECIDED THE ISSUE OF JURISDICTION ITSELF IN VIEW OF THE JUDGEMENT OF BOMBAY HIGH COURT IN THE C ASE OF M/S.KANSAI NEROLAC PAINTS LTD. VS. DCIT, MUMBAI IN ITA NO.1030 OF 2011 VIDE ORDER DATED 6 TH MAY, 2014 WHEREIN HELD THAT:- HAVING SO OBSERVED, THE TRIBUNAL SHOULD HAVE ANSWER ED THE ISSUE ITSELF. THE TRIBUNAL WAS NOT PREVENTED IN ANY MANNE R FROM CONSIDERING A PURELY LEGAL ISSUE FOR THE FIRST ISSUE GOES TO THE ROOT OF THE MATTER. THE ISSUE AND LEGAL EFFECT OF A ORDER OF AMALGAMATION A ND WINDING UP OF THE ASSESSEE THERETO ON THE PENALTY PROCEEDINGS HAVE BE EN WERE CONTINUING. IF THEY WERE INITIATED PRIOR TO UP PASS ED OR THE SCHEME OF AMALGAMATION WHETHER THE SUBSEQUENT ACT OF A ORDER SANCTIONING THE M.P. NO.189/MDS/2015 4 SCHEME WOULD PERMIT CONTINUATION OF THE PROCEEDINGS AGAINST ENTITY OR COMPANY WHICH IS WOUND UP AND IN TERMS OF THE IN TH E INCOME TAX ACT, 1961 WAS THUS, A DEAR BEEN ANSWERED BY THE TRIBUN AL, PARTICULARLY THE QUESTION OR GROUND AND ALSO THE ADDITIONAL BY THE A SSESSEE. THE ONLY TWO DOCUMENTS WHICH REQUIRED TO INTO WERE THE SCHEM E OF AMALGAMATION AND THE ORDER PASSED IN PURSUANCE THER EOF BY THIS COURT. IF THAT WAS THE ADMITTED FACTUAL POSITION AN D BASED ON WHICH THE LEGAL ISSUE WAS RAISED, THEN, THE TRIBUNAL WAS OBLI GED TO ANSWER THE LEGAL QUESTION ITS OMISSION TO ANSWER IT, THEREFORE , IS VITIATED IN LAW. THE TRIBUNAL IS A LAST FACT FINDING COURT AND EQUAL LY IF IT COULD HAVE BEEN APPROACHED BY THE ASSESSEE COURT ON LAW AND FACT, T HEN, IN THE GIVEN CIRCUMSTANCES, THE TRIBUNAL SHOULD HAVE ANSWERED TH IS AND ITS FAILURE TO DO SO CAN SAFELY BE TERMED AS NOT PERFORMING ITS DU TY IN LAW. THE DIRECTION TO REMIT AND TO REMAND IT TO THE ASSESSIN G IS NOT JUSTIFIED AND IN THE PECULIAR FACTS AND CIRCUMSTANCES NOTED ABOVE . 8) AS A RESULT OF THE ABOVE DISCUSSION AND OBSERVAT IONS OR RENDERING ANY FINDING ON LEGAL ISSUE, WE QUASH AND SET ASIDE THE ORDERS PASSED BY THE TRIBUNAL AND IMPUGNED IN THIS APPEAL NAMELY DATED DATED 20TH OCTOBER, 2010 AND 28 TH SEPTEMBER, 2011. WE RESTORE THE APPEAL TO THE FILE OF THE TRIBUNAL FOR THE PURPOSE OF DECIDIN G THE LEGAL ISSUE. THE TRIBUNAL SHALL PERMIT BOTH SIDES TO RAISE THE ARGUM ENTS ON THIS LEGAL ISSUE. IN THE EVENT, THE LEGAL ISSUE IS ANSWERED A GAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE, IT WOULD BE OPEN FOR THE TRIBUNAL DO DISPOSE OF THE APPEAL PREFERRED BY THE ASSESSEE ITS ELF OR IF NECESSARY AND REQUIRED OR THE FACTS JUSTIFYING IT REMAND THE MATTER FOR CONSEQUENTIAL ACTS TO THE AO WITH SUITABLE DIRECTIO NS. THE APPEAL IS DISPOSED OF IN THESE TERMS. THERE WOULD BE NO ORDER S AS TO COSTS. M.P. NO.189/MDS/2015 5 ACCORDINGLY, HE PRAYED THAT THE ORDER OF THE TRIBUN AL TO BE RECALLED AND TO BE DECIDED AFRESH. 3. ON THE OTHER HAND, LD.D.R RELIED ON THE ORDER O F THE TRIBUNAL AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FRO M RECORD. 4.1 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ON EARLIER OCCASION, THE ASSESSEE HAS RAIS ED ADDITIONAL GROUND BEFORE THIS TRIBUNAL WITH REGARD TO JURISDIC TION OF THE AO TO ISSUE NOTICE U/S.143(2) SO AS TO SCRUTINIZE THE RET URN OF INCOME OF THE ASSESSEE, SINCE THE RETURNED INCOME OF THE ASSESSEE IS MORE THAN MONETARY LIMIT FIXED BY THE CBDT TO ASSESS THE INCO ME BY THE ITO. THE TRIBUNAL ADMITTING THE ADDITIONAL GROUND REMITT ED THE ISSUE BACK TO THE FILE OF THE LD.CIT(A) TO EXAMINE THIS GROUND , SINCE THIS GROUND WAS FIRST TIME RAISED BEFORE THIS TRIBUNAL AND LD. CIT(A) HAS NO OCCASION TO CONSIDER THIS GROUND AT THE TIME OF ADJ UDICATING THE APPEAL. NOW, THE PLEA OF THE LD.A.R IS THAT THE TR IBUNAL SHALL NOT HAVE REMITTED THIS ADDITIONAL GROUND TO THE FILE OF THE LD.CIT(A) FOR M.P. NO.189/MDS/2015 6 ADJUDICATION INSTEAD OF THE TRIBUNAL ITSELF OUGHT T O HAVE ADJUDICATED THE GROUND. 4.2 AT THE TIME OF DECIDING THE APPEAL BY THE TRIB UNAL ON EARLIER OCCASION, IT REQUIRES ALL THE MATERIALS FOR ADJUDIC ATION, BUT NOT AVAILABLE, NEITHER THE ASSESSEE NOR THE REVENUE PRO DUCED THE RELEVANT CIRCULAR PRESCRIBING THE JURISDICTION OF T HE AO BEFORE THE TRIBUNAL. IN SUCH CIRCUMSTANCES, IT REQUIRES INVES TIGATING OF ALL THE FACTS AND WITHOUT VERIFYING ALL THE RELEVANT FACTS, THE TRIBUNAL WAS HANDICAPPED TO ADJUDICATE THE ADDITIONAL GROUND. H ENCE, IN ALL FAIRNESS AND INTEREST OF JUSTICE, THE TRIBUNAL REMI TTED THE ADDITIONAL GROUND RELATING TO THE JURISDICTION OF THE ITO TO T HE FILE OF LD.CIT(A) FOR FRESH ADJUDICATION. BY THIS, TRIBUNAL HAS NOT COMMITTED ANY ERROR AND THAT THE ASSESSEE CANNOT HAVE ANY GRIEVANCE AT THIS STAGE. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE ISSUE IN RESPECT OF WHICH RELIEF GRANTED BY THE LD.CIT(A) IS ALREADY REACHED FINALITY, AS THE REVENUE HAS NOT FILED THE APPEAL AGAINST THE ORDER OF THE LD.CIT(A) GIVING RELIEF TO THE ASSESSEE AND REMITTANCE OF TH E ENTIRE ISSUE TO THE FILE OF LD.CIT(A) BY THE TRIBUNAL CANNOT WITHDRAW THE RELIEF GIVEN TO M.P. NO.189/MDS/2015 7 THE ASSESSEE, WHICH AMOUNT TO DISTURB THE ORDER OF THE LD.CIT(A). IN OUR OPINION, TO THAT EXTENT WE FIND THAT MERIT IN T HE PLEA OF THE AUTHORIZED REPRESENTATIVE OF ASSESSEE. ACCORDINGLY , WE DIRECT THE LD.CIT(A) NOT TO WITHDRAW THE RELIEF ALREADY GRANT ED TO THE ASSESSEE WHILE DECIDING THE ISSUE IN RESPECT OF WHICH THE DE PARTMENT HAS NOT FILED APPEAL BEFORE THE TRIBUNAL. WITH THIS OBSERV ATION, WE ARE INCLINED TO DISMISS THIS MISCELLANEOUS PETITION FIL ED BY THE ASSESSEE. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON WEDNESDAY, THE 6 TH OF APRIL,2016 AT CHENNAI. SD/- SD/- ( . ) (G.PAVAN KUMAR) ( ( ! ) ) ' CHANDRA POOJARI #$ JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 6 TH APRIL,2016. K S SUNDARAM. %&'$$() *$ +* /COPY TO: $ 1. /APPELLANT 2. /RESPONDENT 3. % $% ,$' # /CIT(A) 4. % $% , /CIT 5. *-.$((/0 /DR 6. .12$3 /GF