Assitant Commissioner of Income-tax, cIRCLE-1, Nashik V. Holdeen Medical Laboratories Pvt. Ltd., Nashik

MA 20/PUN/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9816 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 30-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK BABU
• Assessee Lawyers: SUBODH RATNAPARAKI
• Keywords: Reopening of assessment
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM M A NO. 20 / P U N/201 9 ARISING OUT OF ITA NO. 1 808 /P U N/201 3 ASSESSMENT YEAR : 20 0 5 - 0 6 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1, NASHIK . APPLICANT VS. HOLDEN MEDICAL LABORATORIES PVT. LTD., C - 35, MIDC MALEGAON, SINNAR, NASHIK 422103 . RESPO NDENT PAN: AA BCH2172G APPLICANT BY : SHRI ASHOK BABU RESPONDENT BY : SHRI SUBODH RATNAPARAKI / DATE OF HEARING : 15 . 0 3 .201 9 / DATE OF PRONOUNCEMENT: 03 . 0 4 .201 9 / ORDER PER SUSHMA CHOWLA, JM : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE APPLICANT - REVENUE AGAINST THE ORDER OF TRIBUNAL I N ITA NO. 1808/PN/2013, DATED 30 . 0 4 .201 5 . 2. THE TRIBUNAL WHILE DECIDING THE ISSUE OF REOPENING OF ASSESSMENT UNDER SECTION 148 OF THE ACT QUASHED THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT IN RESPECT OF FIRST ISSUE I.E. ADDITION ON ACCOUNT OF REFUNDAB LE EXCISE DUTY OF EXPORT AMOUNTING TO 25,03,772/ - AND RE - ASSESSMENT PROCEEDINGS WERE HELD TO BE VOID AB INITIO BY THE TRIBUNAL FIRST VIDE PARA 14 AT PAGE 12 OF THE SAID DECISION. THE TRIBUNAL FURTHER HELD THAT SINCE THE ASSESSEE HAS NOT TAKEN ANY GROUND ON THE ISSUE OF INTEREST ON TDR AND H AS ACCEPTED THE SUPPRESSION OF INTEREST INCOME ON TERM 2 M A NO. 20 /P U N/201 9 DEPOSIT RECEIPTS, THEREFORE, THE SAME IS NOT DISTURBED AND THE ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT ON THIS GROUND WAS UPHELD. 3. THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION AND HAS POINTED OUT THAT WHERE THE TRIBUNAL HAS UPHELD THE REOPENING OF ASSESSMENT ON THE GROUND OF ESCAPEMENT OF INCOME ON INTEREST ON TDR, THEREFORE RE - ASSESSMENT PROCEEDINGS BECOME LEGAL. THE TRIBUNAL CANNOT PARTLY UPHOLD THE ISSUE OF NOTICE UNDER SECT ION 148 OF THE ACT ON ONE GROUND AND NOT ON THE OTHER. THE REVENUE FURTHER PLEADS THAT EITHER THE NOTICE OUGHT TO HAVE BEEN COMPLETELY QUASHED ON ALL ISSUES OR THE ISSUANCE OF THE SAME UPHELD ON ALL ISSUES. ONCE THE ISSUE OF NOTICE UNDER SECTION 148 OF T HE ACT WAS UPHELD, RE - ASSESSMENT PROCEEDINGS ARE LEGAL AND THE ISSUES NEED TO BE ADJUDICATED ON MERITS AS WELL. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STRONGLY PLACED RELIANCE ON THE CONTENTS OF MISCELLANEOUS APPLICATION AND POINTED OUT T HAT THE TRIBUNAL SHOULD HAVE UPHELD RE - ASSESSMENT PROCEEDINGS IN THE HANDS OF ASSESSEE AND BOTH THE ISSUES SHOULD BE ALLOWED. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE WAS ASKED THAT WHAT IS THE MISTAKE IN THE ORDER OF TRIBUNAL BUT INSTEAD O F POINTING OUT ANY MISTAKE, HE WAS RE - ARGUING THE ISSUE OF INITIATION OF RE - ASSESSMENT UNDER SECTION 148 OF THE ACT. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STATED THAT UNDER THE GARB OF MISCELLANEOUS APPLICATION, THE REVENUE IS AGAIN RE - ARGUING THE CASE, WHICH IS NOT TO BE ALLOWED. 5. WE HAVE HEARD BOTH THE PARTIES AND FIND THAT WHILE DECIDING THE PRESENT APPEAL, THE ISSUE WHICH WAS BEFORE THE TRIBUNAL WAS WHETHER INITIATION OF RE - ASSESSMENT PROCEEDINGS IN THE HANDS OF ASSESSEE UNDER SE CTION 148 OF THE ACT 3 M A NO. 20 /P U N/201 9 WERE CORRECT. THE SAID PROCEEDINGS WERE INITIATED IN RESPECT OF TWO ISSUES. THE TRIBUNAL RELYING ON SERIES OF DECISIONS INCLUDING THE HONBLE BOMBAY HIGH COURT AND ALSO REFERRING TO THE DECISION OF APEX COURT HELD THAT VIS - - VIS FIRS T ISSUE, RE - ASSESSMENT PROCEEDINGS WERE TO BE QU ASHED AND THE SAME WERE QUASHED. SINCE THE ASSESSEE HAD NOT RAISED ANY ISSUE VIS - - VIS SECOND ISSUE OF INTEREST ON TDR AND THE ISSUE OF NOTICE THEREON UNDER SECTION 148 OF THE ACT, THE SAID ISSUE WAS DECIDED AGAINST THE ASSESSEE. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS FAILED TO POINT OUT ANY MISTAKE IN THE ORDER OF TRIBUNAL. THE RE - ASSESSMENT PROCEEDINGS CAN BE UPHELD ON ONE ACCOUNT AND CAN BE QUASHED ON THE SECOND ISSUE . IN VIEW THEREOF, THERE IS NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AND THE SAME IS DISMISSED. 6 . IN THE RESULT, MISCELLANEOUS APPLICATION OF APPLICANT IS DISMISSED. ORDER PRONOUNCED ON THIS 3 RD DAY OF APRIL , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 3 RD APRIL , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - I , NASHIK ; 4 . THE CIT - I , NASHIK ; 5. THE DR A , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE