CENZER INDUSTRIES LTD, V. ASST CIT 5(1),

MA 310/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6710 (ITAT-MUMBAI)
• Duration Of Justice: 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1998-1999
• Appeal Filed On: 01-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: PARESH SHAH
• Keywords: Application of stay; Reassessment proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SMT.ASHA VIJAYARAGHAVAN, JM M.A.NOS.310, 311 & 312/MUM/2011 ARISING OUT OF ITA NO.3731, 3732 & 3733/MUM/ 2007 & MA NOS.785, 786/MUM/2009 ASST.YEARS 1998-99, 1999-2000 & 2000-2001 M/S.CENZER INDUSTRIES LIMITED 208, SUGRA BUILDING, 2 ND FLOOR 16 TH TRIBHAVAN ROAD, MUMBAI 400 004. PAN : AABCC4342F. VS. THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 5(1) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI PARESH SHAH RESPONDENT BY : SHRI P.C.MAURYA O R D E R THESE MISCELLANEOUS APPLICATIONS U/S. 254(2) OF THE INCO ME-TAX ACT, 1961 HAVE BEEN MOVED BY THE ASSES SEE PRAYING FOR THE RECTIFICA TION OF THE ORDERS OF THE TRIBUNAL IN ITA NO.3731/MUM/2007 DATED 5 TH JUNE, 2009 AND ITA NOS.3732 & 3733/MUM/2007 DATED 29 TH MAY, 2009. 2. BRIEFLY STATED THE FACT S OF THESE CASES ARE THAT THE ASSESSEE FILED APPEALS AGAINST THE DENIAL OF DEDUCTION U/S.80-IA /80-IB IN RESPECT OF ASSESSMENT YEARS 1998-99, 1999-2000 AND 2000- 2001. IN ALL THESE YEARS THE ASSESSEE ALSO CHALLENGED INITIATION OF REASSESSMENT PROCEEDINGS. THE TRIBUNAL PASSED ORDER IN ITA NOS.3732 & 3733/MUM/2007 FOR ASSESSMENT YEARS 1999-2000 & 2000-2001 ON 29 TH MAY, 2009 DISMISSING THE GROUND FO R INITIATION OF REASSESSMEN T PROCEEDINGS BY RELYING ON THE JUDGEMENT OF THE HONBLE SUPREME COURT IN ACIT VS. RAJESH JHAVERI STOCK BROKERS P.LTD. [(2007) 291 ITR 500 (SC)] . IN APPEAL FOR ASSESSMENT YEAR 1998-99 MA NOS.310, 311 & 312/MUM/2011 M/S.CENZER INDUSTRIES LIMITED. 2 IN ITA NO.3731/MUM/2007 DATED 5 TH JUNE, 2009, THE LEARNED A.R. DID NOT PRESS THE GROUND OF INITIATION OF RE ASSESSMENT PROCEEDINGS, WHICH GROUND WAS DISMISSED VIDE PARA 2 AS NOT PRESSED. AS REGARDS TH E GRANTING OF DEDUCTION U/S.80-IA/80-IB IN RESPECT OF CUSTOM DUTY DRAWBACK, THE TRIBUNAL ACCEPTED THE A SSESSEES CLAIM BY RELYING IN THE JUDGEMENT OF TH E HONBLE DELHI HIGH COURT IN CIT VS. ELTEK SGS P. LTD. [(2008) 300 ITR 6 (DELHI)] . THESE TWO ORDERS PASSED BY THE TRIBUNAL IN ITA NOS.3731/MUM/2007 ON ONE HAND AND 3732 & 3733/MUM/2007 ON THE OTHER, ARE HEREINAFTER REFERRED TO AS ORDER(S)-A. 3. PURSUANT TO THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT [(2009) 317 ITR 218 (SC)], THE REVENUE FILED MISCELLANEOUS APPLICATIONS CLAIMING THAT THE DEDUCTION WA S NO MORE ALLOWABLE IN THE LIGHT OF THIS JUDGMENT OF THE HONBLE SUPREME COURT. THE TRIBUNAL DISPOSED OF SUCH PETITIONS VIDE ITS ORDER IN M/A NO .785 & 786/MUM/2009 (HEREINA FTER CALLED ORDER-B) ALLOWING THE MAS FILED BY THE REVENUE. THE EFFE CT OF THIS ORDER TU RNED OUT THAT THE DEDUCTION INITIALLY ALLOWED U/ S.80-IA / 80-IB FOR ALL TH E THREE YEARS IN QUESTION STOOD WITHDRAWN. 4. THEREAFTER THE ASSESSEE FILED M/AS NUMBERING 86/MUM/2011 FOR ASSESSMENT YEAR 1998-99 AND 127/MUM/2011 FOR ASS ESSMENT YEARS 1999-2000 AND 2000-2001 CONTENDING THAT THER E WAS MISTAKE IN THE ORDER-B PASSED BY THE TRIBUNAL INASMUCH AS THE GROUND RAISED BY IT CHALLENGING IN ITIATION OF REASSESSMENT PROCEEDINGS WAS NOT DISCUSSED. THE TRIBUNAL VIDE ITS ORDER DATED 29 TH APRIL, 2011 (HEREINAFTER CALLED ORDER-C) DISMISSED THE MISCELLANEOUS APPLICATION BY NOTING THAT THE TRIBUNAL HAS RECORDED A CATEGORICAL FINDING THAT TH E ASSESSEE DID NOT CHALLENGE THE ISSUE OF INITIATION OF REASSESSMENT PROCEEDINGS. MA NOS.310, 311 & 312/MUM/2011 M/S.CENZER INDUSTRIES LIMITED. 3 5. IN THE MEANTIME THE ASSE SSEE ALSO FILED STAY APPLI CATIONS NUMBERING 124, 125 & 126/MUM/2011 FOR THESE YEARS IN QUESTION. SUCH STAY APPLICATIONS WERE DISPOSED OFF BY THE TRIBUN AL VIDE ITS ORDER DATED 3 RD JUNE, 2011 DIRECTING THE ASSESSEE TO DEPOSIT A SUM OF RS.4 LAKHS AND GRANTING STAY TILL THE FINAL DISPOSAL OF APPEALS. 6. THE PRESENT MISCELLANEOUS APPLI CATIONS NUMBERING 310, 311 & 312/MUM/ 2011 HAVE BEEN FILED BY TH E ASSESSEE CONTENDING THAT MISCELLANEOUS APPLICATIONS FILED BY IT WERE AGAINST ORDER-B, WHEREA S THE TRIBUNAL HAS DI SPOSED OFF SUCH APPLICATION BY CONSIDERING TH EM TO BE FILED AGAINST ORDER(S)-A. THE LEARNED A.R. AGAIN CONTENDED BEFORE US THAT THE TRIBUNA L SHOULD HAVE DISPOSED OFF ITS GROUND FOR INITIATION OF REASSESSMENT PRO CEEDINGS. IN THE OPPOSITION, THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS PASSED BY THE TRIBUNAL AND C ONTENDED THAT THERE WAS NO MISTAKE APPARENT FROM RECO RD REQUIRING ANY RECTIFICATION. 7. WE HAVE HEARD BOTH SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT VIDE ORDER(S)-A, THE ASSE SSEES CONTENTION FOR DENIAL OF DEDUCTION U/S.80-IA/80-IB WAS ACCEPTED BUT THE GROUND CHALLENGING INITIATION OF REASSESSMENT PROCEEDINGS WAS DISMISSED FOR TWO YEARS ON ME RITS AND IN THE THIRD YEAR THE LEARNED A.R. DID NOT PRESS THIS GROUND. THE REVENUE FILED M/AS RE QUIRING RECTIFICATION OF THE ORDER(S)-A BY RELYING ON THE JUDGEMENT OF THE HON BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA (SUPRA) WHICH CONTENTION WAS UPHELD AND THE ORDER(S)-A WERE MODIFIED TO THAT EXTENT. THE LEARNED A.R. NOW CONTE NDS THAT IN THE COURSE OF ARGUMENTS LEADING TO ORDER-B, HE ALSO ARGUED ABOUT THE NON-DIS POSAL OF THE GROUND AGAINST THE INITIATION OF REASSESSMENT PROCEEDINGS AND SINCE SUCH ISSUE WAS NOT DISPOSED OFF BY THE TRIBUNAL, HE FILED A NOTHER SET OF MISCELLANEOUS APPLICATIONS MA NOS.310, 311 & 312/MUM/2011 M/S.CENZER INDUSTRIES LIMITED. 4 AGAINST THE ORDER-B. NOW THE LEARNED A.R S POINT OF VIEW IS THAT THE ORDER-C SHOULD HAVE BEEN PASSED AGAINS T ORDER-B AND NOT ORDER(S)-A. 8. WE ARE NOT CONVINCED WITH THIS SU BMISSION FOR THE REASON THAT THE ORDER-B WAS PASSED PURSUANT TO MISCELLANEOUS A PPLICATIONS FILED BY THE REVENUE ON THE GRANTING OF DEDUCTION U/S.80- IA/80-IB FOR THREE YEARS IN QUESTION. SINCE IT WAS A CASE OF MISCELLANEOUS APPLICATION BY THE REVENUE, THE ASSESSEE COULD NOT HAVE ASSAILED THE ORDER(S)-A IN ITS FAVOUR W ITHOUT ANY MISCELLANEOUS APPLICATIONS FILED BY IT. THE TRIBUNAL WAS RIGHT IN DISMISSING THE M/AS FILED VIDE ORDER-C BY TREATING THEM AS HAVING BEEN FILED AGAINST OR DER(S)-A ON THE QUESTION OF INITIATION OF REASSESSMENT PROCEEDINGS, BECAUSE ASSESSEES GRIEVANC E COULD NOT HAVE BEEN ADDRESSED AGAINST ORDER-B WHICH WAS PURSU ANT TO THE MAS FILED BY THE REVENUE. THE PRESENT SET OF MISCELLANEOUS APPLICA TIONS FILED BY THE ASSESSEE AGAIN DESERVE THE FATE OF DISMISSAL FOR TWO REASONS. FIRSTLY THE ASSESSEE S GRIEVANCE ON THE INITIATION OF REASSESSMENT PR OCEEDINGS U/S.147 COULD HA VE ONLY BEEN AGAINST ORDER(S)-A AND NOT ORDER-B. SECONDLY THE IS SUE HAS BEEN RIGHTLY DEALT WITH BY THE TRIBUNAL IN ORDER-C BY HOLDING THAT IT WAS NOT PERMISSIBLE TO ARGUE AGAINST INITIATION OF REASSESS MENT PROCEEDINGS IN THE RECTIFICATION PROCEEDINGS FOR THE REASON THAT FOR THE TWO YEARS SUCH GROUND WAS DISMISSED ON MERITS AND FOR THE THIRD YEAR AS NOT PRESSED IN ORDER(S)-A. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE INSTANT MISCELLANEOUS APPLICATIONS. 9. BEFORE PARTING WITH THESE MISCELLANE OUS APPLICATIONS IT IS PERTINENT TO MENTION THAT THE ASSESSEE ALSO FILED STAY APPLICATIONS FOR THE THREE YEARS IN QUESTION WHICH WERE DISPOSED OFF BY THE TRIBUNAL BY GRANTING STAY SUBJECT TO CERTAIN PAYMENT. NEITHER THE LEARNED A.R. NO R THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED AT THE TIME OF HEARING OF THE STAY APPLICATIONS TH AT THE APPEALS HAD ALREADY BEEN DISPOSED OFF BY THE TRIBUNAL. IT IS OBVIOUS THAT THE STAY CAN BE GRANTED BY THE TRIBUNAL ONLY WHEN ANY APPEAL IS PENDING WITH IT. SINCE NO APPEAL OF THE MA NOS.310, 311 & 312/MUM/2011 M/S.CENZER INDUSTRIES LIMITED. 5 ASSESSEE FOR ASSESSMENT YEARS 1998-99, 1999-2000 AND 2000-200 1 IS PENDING WITH THE TRIBUNAL AND FURTHER THE PRESENT MISCE LLANEOUS APPLICATIONS HAVE ALSO BEEN DISMISSED, THERE REMAINS NO QUESTION OF GRANTING OR CON TINUING ANY STAY. AS SUCH, THE STAY ORDER BECOMES IN-OPERATIVE. 10. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS ARE DISMISSED ORDER PRONOUNCED ON THIS 24 TH DAY OF JUNE, 2011. SD/- SD/- (ASHA VIJAYARAGHAVAN) (R.S.SYAL) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI : 24 TH JUNE, 2011. DEVDAS* COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) V, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.