The Deputy Commissioner of Income tax, Jammu V. M/s. Jammu Development Authority, Jammu

MA 26/ASR/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0018 (ITAT-AMRITSAR)
• Duration Of Justice: 4 year(s) 11 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-09-2018
• Assessment Year: 2007-2008
• Appeal Filed On: 04-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER M. A. NO. 26/(ASR)/2014 (ARISING OUT OF I.T.A NO.53(ASR)/2013) ASSESSMENT YEAR: 2007-08 DY. CIT, CIRCLE-1, JAMMU VS. JAMMU DEVELOPMENT AUTHORITY, JAMMU [PAN: AADFJ 7335A] (APPLICANT) (RESPONDENT) APPLICANT BY : SH. CHARAN DASS (DR) RESPONDENT BY : NONE DATE OF HEARING : 07.09.2018 DATE OF PRONOUNCEMENT : 14.09.2018 ORDER PER SANJAY ARORA, AM THIS IS A MISCELLANEOUS PETITION BY THE REVENUE AR ISING OUT OF THE ORDER DATED 21.03.2013 BY THE TRIBUNAL IN THE CAPTIONED A PPEAL BY THE REVENUE, IN RESPECT OF THE ASSESSEES ASSESSMENT UNDER SECTION 115WE(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 23.03.3010 FOR ASSESSMENT YEAR 2007-08. 2. THE TRIBUNAL DISMISSED THE REVENUES APPEAL ON T HE GROUND THAT THE ASSESSEE WAS NOT AFFORDED ANY OPPORTUNITY TO EXPLAIN ITS CA SE BY THE ASSESSING OFFICER (AO) BEFORE THE COMPLETING THE ASSESSMENT. IN SO DO ING, THE TRIBUNAL ENDORSED THE FINDING OF THE COMMISSIONER OF INCOME-TAX (APPEALS) , JAMMU (CIT(A) FOR SHORT) I.E., THE FIST APPELLATE AUTHORITY, TO THAT EFFECT (VIDE HIS ORDER DATED MA NO.26/ASR/2014 (A.Y:2007-08) (ARISING OUT OF ITA NO.53(ASR)/2013) DCIT VS. JAMMU DEVELOPMENT AUTHORITY 2 08.11.2012), WHILE REVERSING THE OTHER GROUND, I.E. , OF THE IMPUGNED ASSESSMENT BEING TIME BARRED, ON WHICH THE LD. CIT(A) HAD ALSO ANNULLED THE ASSESSMENT. 3. BEFORE US, THE ASSESSEE-RESPONDENT WAS NOT REPRE SENTED, NOT PARTICIPATING IN THE PROCEEDINGS DESPITE SEVERAL OPPORTUNITIES BEING GRANTED TO IT OVER A PERIOD OF FOUR YEARS, INCLUDING BY WAY OF FINAL OPPORTUNITIES ; SEEKING ADJOURNMENT EACH TIME. THE SAME WAS WITH A VIEW TO GET PROPER ASSISTANCE I N DISPOSING THE INSTANT PETITION. THE MATTER WAS, ACCORDINGLY, PROCEEDED WITH EX PARTE QUA THE ASSESSEE. 4. WE HAVE HEARD THE PARTY BEFORE US, AND PERUSED T HE MATERIAL ON RECORD. THE REVENUES CASE IS THAT THE IMPUGNED ASSESSMENT HAS BEEN MADE ON THE BASIS OF AMENDED ACCOUNTS AS FILED BY THE SPECIAL A UDITOR, ALONG WITH HIS REPORT THEREON, AND ON WHICH BASIS THE FRINGE BENEFIT TAX HAS BEEN CALCULATED. THE ASSESSEE WAS DULY CONFRONTED WITH THE SAID ACCOUNTS BEFORE P ASSING THE ORDER U/S. 143(3) OF THE ACT. ENCLOSED ALONG WITH IS THE QUESTIONNAIRE D ATED 15.2.2010 TO THE ASSESSEE. BEFORE US, IT WAS CONTENDED BY THE LD. DEPARTMENTA L REPRESENTATIVE (DR) THAT THOUGH NOT BROUGHT ABOUT EXPLICITLY IN THE ASS ESSMENT ORDER, DUE OPPORTUNITY TO STATE ITS CASE WAS EXTENDED TO THE ASSESSEE IN FRAM ING THE IMPUGNED ASSESSMENT, AND THAT THE APPELLATE AUTHORITIES HAD ACCEPTED THE ASSESSEES CONTENTION WITHOUT VERIFYING THE FACTS, I.E., THE ASSESEES CLAIM OF H AVING NOT BEEN PROVIDED DUE OPPORTUNITY. THE PROCEEDINGS U/S. 143(3) AND U/S. 1 15 WE(3) WERE ON AT THE SAME TIME, IN PARALLEL, AND THE ADJUSTMENT TO THE RETURN ED FRINGE BENEFIT MADE UPON CONFRONTING THE REVISED ACCOUNTS AS RECEIVED FROM T HE SPECIAL AUDITOR, I.E., UPON GIVING PROPER OPPORTUNITY TO THE ASSESSEE. NOTING THAT THE ASSESSEE HAD NOT TAKEN ANY SPECIFIC GROUND IN THIS REGARD, I.E., THE NON-ALLOWANCE OF OPPORTUNITY THERETO TO EXPLAIN ITS CASE BY THE AO, BEFORE THE LD. CIT(A), WHO HAD NOT ISSUED ANY DEFINITE FINDING IN THE MATTER, MERELY STATING MA NO.26/ASR/2014 (A.Y:2007-08) (ARISING OUT OF ITA NO.53(ASR)/2013) DCIT VS. JAMMU DEVELOPMENT AUTHORITY 3 THAT THE ASSESSEES PLEA OF THE ASSESSMENT ORDER HA VING BEEN PASSED WITHOUT AFFORDING ANY OPPORTUNITY (TO IT TO STATE ITS CASE ) AS HAVING SOME FORCE, WHOSE FINDING WAS ACCEPTED BY THE TRIBUNAL, AGAIN, WITHOU T FURNISHING ANY SPECIFIC FACTS IN THIS REGARD, PERHAPS SO AS THE FINDING BY THE FI RST APPELLATE AUTHORITY MAY NOT HAVE BEEN SPECIFICALLY REBUTTED BEFORE IT, THE ASSE SSMENT RECORD WAS CALLED FOR TO ASCERTAIN THE FACTS IN THE MATTER. ON THAT BASIS, IT WAS CONFIRMED BY THE LD. DR THAT THERE IS NO SHOW CAUSE NOTICE OR EVEN AN ORDER-SHEE T ENTRY EXTENDING ANY OPPORTUNITY TO THE ASSESSEE TO EXPLAIN AS TO WHY TH E IMPUGNED ADJUSTMENT TO ITS RETURN U/S. 115WD BE NOT MADE, ALSO STATING REASON/ S THEREFOR. WE HAVE ALSO, TOWARD THIS, GONE THROUGH THE QUESTIONNAIRE DATED 1 5.02.2010, ON WHICH THE REVENUE RELIES. THE SAME, FIRSTLY, IS THE FIRST STA GE WHEREAT THE ASSESSING AUTHORITY SEEKS THE ASSESSEES REPLY, AND DOES NOT REFLECT HI S DECISION UPON CONSIDERATION THEREOF. TWO, THE SAME DOES NOT CONTAIN ANY QUERY W ITH REGARD TO THE ASSESSMENT U/S. 115WE(3). TO CONTEND, THEREFORE, AS THE LD. DR DOES BEFORE US, THAT THE OPPORTUNITY/S GRANTED IN THE PROCEEDINGS U/S. 143(3 ), WHICH INDEED WAS, WOULD IMPLY AN EXTENSION OF OPPORTUNITY IN THE ASSESSMENT PROCEEDINGS U/S. 115WE(3), CANNOT BE ACCEPTED; THE TWO PROCEEDINGS BEING SEPAR ATE AND DISTINCT, EVEN IF CONDUCTED BY OR BEFORE THE SAME ASSESSING OFFICER ( AO) AND EVEN IF THE SAME ARE BASED ON THE SAME SET OF ACCOUNTS, OR EVEN IF SOME ISSUE MAY OVERLAP AS THE FINDINGS IN ONE MAY BE EMPLOYED FOR MAKING ADJUSTME NTS IN THE OTHER. WE, THEREFORE, FIND NO FORCE IN THE REVENUES INST ANT PETITION AND, ACCORDINGLY, DISMISS THE SAME AS WITHOUT MERIT. MA NO.26/ASR/2014 (A.Y:2007-08) (ARISING OUT OF ITA NO.53(ASR)/2013) DCIT VS. JAMMU DEVELOPMENT AUTHORITY 4 5. IN THE RESULT, THE INSTANT APPLICATION BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 14, 2018 SD/- SD/- (N.K.CHOUDHARY) (SANJAY A RORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 14/09/2018 PK/ PS COPY OF THE ORDER FORWARDED TO: (1) JAMMU DEVELOPMENT AUTHORITY, JAMMU (2) DY. CIT, CIRCLE-1, JAMMU (3) THE CIT(A), JAMMU. (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T. TRUE COPY BY ORDER