ITO 16 (1)(1), MUMBAI V. ADVAIT ENTERTAINMENT P LTD., MUMBAI

MA 29/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4267 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-05-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 06-02-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “A” MUMBAI BEFORE SHRI AMIT SHUKLA (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) M.A. No. 29/MUM/2022 (ITA No. 992/MUM/2020) Assessment Year: 2011-12 Income Tax Officer-16(1)(1), 436A, Aayakar Bhavan, Mumbai-20. Vs. M/s Advait Entertainment Pvt. Ltd., 101-C, Avantika Birla Lane, Juhu, Vile Parle (W), Mumbai-400049. PAN No. AAGCA 4809 E Appellant Respondent Assessee by : Mr. V.K. Tulsian, CA & Mr. Kanhiya Lal, Advocate Revenue by : Mr. B.K. Bagchi, DR Date of Hearing : 20/05/2022 Date of pronouncement : 20/05/2022 ORDER PER OM PRAKASH KANT, AM By way of this Miscellaneous Application, the Revenue seeks to recall the order of the Tribunal dated 21.06.2021. 2. Before us, the Ld. Departmental Representative (DR) submitted that the Tribunal has quashed the assessment order holding it to be invalid and the jurisdiction which he was not empowered under the law. The Ld. DR submitted that in set aside proceedings, the Assessing Officer has made fresh additions in view of the order set aside by the Tribunal for de novo consideration. The Ld. DR submitted that the Tribunal should not have quashed the assessment order and only deleted the addition assessment order. 3. On the other hand, the Ld. counsel of the assessee submitted that there is no mistake apparent in the order of the Tribunal. 4. We have heard the rival submissions of the parties and perused the relevant material on record. We find that the Assessing Officer in the original assessment order made addition for unexplained cash credit in HDFC Bank of interest on fixed deposit of holding it to be invalid and void ab initio being passed in exceeding the jurisdiction which he was not empowered under the law. The Ld. submitted that in set aside proceedings, the Assessing Officer has made fresh additions in view of the order set aside by the Tribunal consideration. The Ld. DR submitted that the Tribunal should not have quashed the assessment order and only deleted the addition, which were not made in the original On the other hand, the Ld. counsel of the assessee submitted that there is no mistake apparent in the order of the Tribunal. We have heard the rival submissions of the parties and perused the relevant material on record. We find that the Assessing Officer in the original assessment order made addition for unexplained cash credit in HDFC Bank of ₹3,59,12,728/ ed deposit of ₹2,02,030/-. The Tribunal in first round 2 being passed in exceeding the jurisdiction which he was not empowered under the law. The Ld. submitted that in set aside proceedings, the Assessing Officer has made fresh additions in view of the order set aside by the Tribunal consideration. The Ld. DR submitted that the Tribunal should not have quashed the assessment order and only should have which were not made in the original On the other hand, the Ld. counsel of the assessee submitted that there is no mistake apparent in the order of the Tribunal. We have heard the rival submissions of the parties and perused the relevant material on record. We find that the Assessing Officer in the original assessment order made addition for 3,59,12,728/- and . The Tribunal in first round of the proceedings restored the matter to the AO vide order dated 09.03.2018 wherein all issues were set aside for consideration. In the consequent order passed by the Assessing Officer u/s 254 r.w.s. 144 dated 27.11.2018 respect of cash deposits of credited HDFC Bank of ₹5,94,99,556/- and unexplained sundry creditors of Thus the Assessing O of unsecured loans and not made original assessment order. The Tribunal of proceedings in order dated 21.06.2021, the case of M/s Gemini Oils Pvt. Ltd. in ITA No. 2563/M/2005 AY 1996-97 has quashed the order of the Assessing Officer holding that in assessment order passed consequent to set aside by the Tribunal the Assessing Officer has no power to add amount what was restored to him and therefore, the Assessing Officer of the proceedings restored the matter to the AO vide order dated 09.03.2018 wherein all issues were set aside for consideration. In the consequent order passed by the Assessing r.w.s. 144 dated 27.11.2018, he has made addition in respect of cash deposits of ₹25,00,000/- unexplained deposits credited HDFC Bank of ₹1,83,00,000/-, unsecured loan of and unexplained sundry creditors of Thus the Assessing Officer has made two fresh additions in respect and in respect of sundry creditors which original assessment order. The Tribunal in of proceedings in order dated 21.06.2021, following the decision in s Gemini Oils Pvt. Ltd. in ITA No. 2563/M/2005 AY has quashed the order of the Assessing Officer holding that passed consequent to set aside by the Tribunal the Assessing Officer has no power to add amount was restored to him and therefore, the Assessing Officer 3 of the proceedings restored the matter to the AO vide order dated 09.03.2018 wherein all issues were set aside for de novo consideration. In the consequent order passed by the Assessing he has made addition in unexplained deposits , unsecured loan of and unexplained sundry creditors of ₹4,22,500/-. fficer has made two fresh additions in respect in respect of sundry creditors which were in second round following the decision in s Gemini Oils Pvt. Ltd. in ITA No. 2563/M/2005 AY has quashed the order of the Assessing Officer holding that passed consequent to set aside by the Tribunal, other than that was restored to him and therefore, the Assessing Officer exceeded jurisdiction in passing the assessment order and making the additions. The Tribunal respectfully following the decision of the Tribunal in the case of M/s Genimi Oils Pvt. Ltd. (supra) the order of the Assessing Officer is invalid opinion, there is no mistake order of the Tribunal as the Tribunal has followed binding precedent on the issue 5. Accordingly, the co Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open Court on Sd/- (AMIT SHUKLA JUDICIAL MEMBER Mumbai; Dated: 20/05/2022 Dragon Legal/Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai exceeded jurisdiction in passing the assessment order and making the additions. The Tribunal respectfully following the decision of the Tribunal in the case of M/s Genimi Oils Pvt. Ltd. (supra) the order of the Assessing Officer is invalid void ab initio opinion, there is no mistake, much less apparent mistake order of the Tribunal as the Tribunal has followed binding precedent on the issue-in-dispute. Accordingly, the contentions of the Revenue are rejected and Miscellaneous Application filed by the Revenue is dismissed. ounced in the open Court on 20/05/2022. Sd/ AMIT SHUKLA) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT Copy of the Order forwarded to : 4 exceeded jurisdiction in passing the assessment order and making the additions. The Tribunal respectfully following the decision of the Tribunal in the case of M/s Genimi Oils Pvt. Ltd. (supra) held that void ab initio. In our much less apparent mistake, in the order of the Tribunal as the Tribunal has followed binding ntentions of the Revenue are rejected and Miscellaneous Application filed by the Revenue is dismissed. /2022. Sd/- OM PRAKASH KANT) MEMBER 6. Guard file. //True Copy// BY ORDER, (Sr. Private Secretary ITAT, Mumbai 5 Sr. Private Secretary) ITAT, Mumbai