SHRIPAL BUILDERS, MUMBAI V. PR CIT 17, MUMBAI

MA 295/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0621 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 25-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY SETHI
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Rectification of order; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 80IB; 254(2); 263

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI SHAKTIJIT DEY (JM) M.A. NO. 295/MUM/2019 ARISING IN I.T.A. NO. 3732/MUM/2017 (ASSESSMENT YEAR 2007-08) M/S. SRIPAL BUILDERS 18, SAHEB BUILDING 195, D.N. ROAD FORT, MUMBAI- 400 001. PAN : AATFS9508E VS. PR.CIT-17 ROOM NO. 121 AAYAKAR BHAVAN M.K.ROAD CHURCHGATE MUMBAI - 400 020. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI SUBODH RATNAPARKHI DEPARTMENT BY SHRI SANJAY SETHI DATE OF HEARING 15 . 0 1 . 20 2 1 DATE OF PRONOUNCEMENT 16.02.2021 O R D E R PER SHAMIM YAHYA (AM) :- BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSE SSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THIS TRIBUNAL IN ITA NO. 3732/MUM/2017 VIDE ORDER DATED 18.10.2018 FOR A.Y. 2007-08. 2. THE ASSESSEES SUBMISSION IN THE MISCELLANEOUS A PPLICATION IS THAT ASSESSEE HAS RAISED A GROUND THAT FINAL ORDER OF TH E LEARNED CIT PASSED UNDER SECTION 263 OF THE I.T. ACT WAS ON DIFFERENT GROUND THAN THAT MENTIONED IN THE NOTICE ISSUED UNDER SECTION 263 OF THE IT ACT. THAT HENCE THERE IS VIOLATION OF NATURAL JUSTICE THAT ASSESSEE HAS NOT BEEN PROVIDED WITH AN OPPORTUNITY TO MAKE NECESSARY ARGUMENTS. IT HAS FURTHER BEEN PLEAD ED THAT ASSESSEE HAS REFERRED TO THE DECISION OF HONOURABLE SUPREME COUR T IN THE CASE OF THE AMITABH BACHCHAN (384 ITR 200). 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE FIND THAT THERE HAS BEEN TWO ROUNDS OF APPEAL BEFORE THE ITAT AGAINST THE ORDER OF LEARNED CIT PASSED UNDER SECTION 263 OF THE IT ACT. IN THE FIRST ROUND THE ITAT HAS REMANDED THE MATTER TO THE FILE OF LEARNED CIT TO GIVE THE ASSESSEE PROPER M/S. SRIPAL BUILDERS 2 OPPORTUNITY OF BEING HEARD AND THEREAFTER PASSED TH E ORDER. IN THE SECOND ROUND LEARNED CIT NOTED IN HIS ORDER THAT DUE NOTIC E HAS BEEN GIVEN TO THE ASSESSEE AND ASSESSEE'S COUNSEL HAS BEEN DULY HEARD . THEREAFTER LEARNED CIT PASSED THE ORDER UNDER SECTION 263 OF THE IT ACT. 4. AGAINST THIS ORDER THE ASSESSEE APPEALED BEFORE THE ITAT. ITAT ELABORATELY DEALT WITH THE ISSUES. IT ALSO FOUND TH AT LEARNED CIT HAS GIVEN THE ASSESSEE OPPORTUNITY. ITAT ALSO FOUND MERIT IN THE OBSERVATION OF THE LEARNED CIT WHICH WERE WITH RESPECT TO THE MERITS OF THE AS SESSEE'S CASE. THEREAFTER ITAT UPHELD THE ORDER OF THE LEARNED CIT. IN HIS OR DER LEARNED CIT HAD DIRECTED AS UNDER:- IT IS THEREFORE HELD THAT THE ASSESSEE IS NOT ENTITLED FOR ITS CLAIM OF DEDUCTION U/S. 80IB OF THE ACT. THE ASSESSMENT ORDER U/S. 143(3 ) OF THE ACT DATED 17.11.2009 IS ERRONEOUS AND PREJUDICIAL TO BE INTERE ST OF REVENUE, AND THE SAME IS ACCORDINGLY SET ASIDE. THE ASSESSING OFFICER IS DIRECTED TO PASS A DE NOVO ASSESSMENT ORDER IN LIGHT OF THE FINDINGS SUPRA, AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. 5. THE ITAT DISMISSING THE ASSESSEE'S APPEAL. THE I TAT HELD THAT THE ORDER PASSED BY CIT UNDER SECTION 263 IS RESTORED BACK TO THE FILE OF AO FOR MAKING ENQUIRY WITH REGARD TO FULFILLMENT CONDITION UNDER SECTION 80IB. 6. NOW THE ASSESSEE HAS FILED MISCELLANEOUS APPLICA TION AGAINST ORDER OF ITAT CLAIMING THAT ITAT HAD IGNORED THE ASSESSEE'S SUBMISSION THAT FINAL ORDER OF LEARNED CIT WAS ON DIFFERENT GROUND THAN THAT ME NTIONED IN THE ORIGINAL NOTICE AND THAT HENCE THE ITAT ORDER SUFFERS FROM M ISTAKE APPARENT FROM RECORD. 7. UPON CAREFUL CONSIDERATION WE FIND THAT ITAT HAD ALREADY CONSIDERED THE ASSESSEE'S PLEA IN THE 1 ST ROUND THAT LEARNED CIT HAS PASSED ORDER UNDER SECTION 263 WITHOUT GIVING PROPER OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. HENCE THE MATTER WAS DULY REMANDED TO THE LEARNED C IT FOR ADJUDICATION AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEA RD M/S. SRIPAL BUILDERS 3 8. IN THE SECOND ROUND LEARNED CIT DULY GAVE OPPORT UNITY TO THE ASSESSEE AND THEREAFTER PASSED THE FINAL ORDER. THIS ORDER W AS DULY UPHELD BY THE ITAT ON ALL ASPECTS OF THE MATTER INCLUDING THE MERITS O F THE CASE. THEREAFTER ITAT CONCLUDED THAT IT UPHELD THE ORDER OF LEARNED CIT I N RESTORING THE ISSUE BACK TO THE FILE OF AO FOR MAKING ENQUIRY WITH REGARD TO FU LFILMENT OF CONDITION UNDER SECTION 80IB. 9. NOW WE NOTE THAT ASSESSEE HAS FILED AN MA AGAINS T THE ITAT ORDER ARISING THAT ITAT HAS NOT CONSIDERED THE ISSUE RAIS ED. PROPER OPPORTUNITY TO THE ASSESSEE HAS NOT BEEN GIVEN BY THE LEARNED CIT WHILE PASSING THE ORDER UNDER SECTION 263 OF THE LT ACT. 10. WE FIND THAT BY FILING THIS MISCELLANEOUS APPLI CATION AS ABOVE THE ASSESSEE IS MISUSING THE PROCESS OF FILING MISCELLA NEOUS APPLICATION. IN THE FIRST ROUND OF APPEAL BEFORE THE ITAT, ON ASSESSEE'S PLEA THAT ASSESSEE HAS NOT BEEN PROVIDED PROPER OPPORTUNITY AND THERE HAS BEEN VIOL ATION OF PRINCIPLE OF NATURAL JUSTICE THE ITAT HAD ALREADY REMANDED THE M ATTER TO THE LEARNED CIT. THEREAFTER THE LEARNED CIT GAVE THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD AND PASSED AFRESH ORDER. THIS ORDER WAS DULY UPHELD BY THE ITAT DISCUSSING ALL THE FACETS OF THE MERITS. NOW AGAIN THE ASSESSEE IS FILING MISCELLANEOUS APPLICATION CONTENDING THAT ASSESSEE HAS NOT BEEN G IVEN PROPER OPPORTUNITY BY THE LEARNED CIT IN AS MUCH AS FINAL ORDER U/S. 263 IS ON A DIFFERENT GROUND THAN THAT WAS MENTIONED IN THE NOTICE U/S. 263. HEN CE THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. WE NOTE THAT NOTICE U/S. 263 IS NOT SOMETHING WHICH THE LEARNED CIT ISSUES IN THE SECOND ROUND OF PROCEEDINGS BEFORE HIM. HENCE, IN OUR CONSIDERED OPINION THE ASSESSEE IS SE EKING REVIEW OF THE ORDER ALREADY PASSED AFTER DULY CONSIDERING ALL THE FACTS . THIS IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE I.T. ACT. M/S. SRIPAL BUILDERS 4 11. ACCORDINGLY, THE MISCELLANEOUS APPLICATION STAN DS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.2.2012. SD/- SD/- (SHAKTIJIT DEY) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 16/02/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI