ACIT, New Delhi V. M/s. Senior Builders Ltd, New Delhi

MA 359/DEL/2010

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4250 (ITAT-DELHI)
• Duration Of Justice: 11 year(s) 10 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-05-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 07-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV PUNDIR
• Assessee Lawyers: ADITYAKUMAR SHARMA
• Keywords: Period of limitation; Time period of passing order
• Section: 153A; 254(2); 142(2A); 153

Judgement Text

1 MA nos. 356 to 363 & ors ACIT Vs. Senior Builders Ltd. & ors IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “D”: NEW DELHI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER M.A. No. 356/Del/2010 [ in ITA no. 3128/Del/2009 – A.Y. 1998-99] M.A. No. 357/Del/2010 [ in ITA no. 3129/Del/2009 – A.Y. 1999-2000] M.A. No. 358/Del/2010 [ in ITA no. 3130/Del/2009 – A.Y. 2001-02] M.A. No. 359/Del/2010 [ in ITA no. 3131/Del/2009 – A.Y. 2002-03] M.A. No. 360/Del/2010 [ in ITA no. 1566/Del/2009 – A.Y. 2003-04] M.A. No. 361/Del/2010 [ in ITA no. 1567/Del/2009 – A.Y. 2004-05] M.A. No. 362/Del/2010 [ in ITA no. 1577/Del/2009 – A.Y. 2003-04] M.A. No. 363/Del/2010 [ in ITA no. 1578/Del/2009 – A.Y. 2004-05] ACIT, Central Circle-12, New Delhi Vs. M/s Senior Builders Ltd., 1/1, Shanti Niketan, New Delhi-110021. PAN: AAACS9920J AND M.A. No. 364/Del/2010 [ in ITA nos. 1562 & 1573/Del/2009 – A.Y. 2001-02] M.A. No. 365/Del/2010 [ in ITA nos. 1563 & 1574/Del/2009 – A.Y. 2002-03] M.A. No. 366/Del/2010 [ in ITA nos. 1564 & 1575/Del/2009 – A.Y. 2003-04] M.A. No. 367/Del/2010 [ in ITA nos. 1565 & 1576/Del/2009 – A.Y. 2004-05] M.A. No. 422/Del/2010 [ in ITA no. 1562/Del/2009 – A.Y. 2001-02] M.A. No. 423/Del/2010 [ in ITA no. 1563/Del/2009 – A.Y. 2002-03] M.A. No. 424/Del/2010 [ in ITA no. 1564/Del/2009 – A.Y. 2003-04] M.A. No. 425/Del/2010 [ in ITA no. 1565/Del/2009 – A.Y. 2004-05] M.A. No. 426/Del/2010 [ in ITA no. 1573/Del/2009 – A.Y. 2001-02] M.A. No. 427/Del/2010 [ in ITA no. 1574/Del/2009 – A.Y. 2002-03] M.A. No. 428/Del/2010 [ in ITA no. 1575/Del/2009 – A.Y. 2003-04] M.A. No. 429/Del/2010 [ in ITA no. 1576/Del/2009 – A.Y. 2004-05] ACIT, Central Circle-12, New Delhi Vs. M/s Westend Promoters Pvt. Ltd., B-109, Defence Colony, New Delhi. PAN: AAACW3381M 2 MA nos. 356 to 363 & ors ACIT Vs. Senior Builders Ltd. & ors AND M.A. No. 369/Del/2010 [ in ITA no. 1528/Del/2009 – A.Y. 1998-99] M.A. No. 370/Del/2010 [ in ITA no. 1529/Del/2009 – A.Y. 1999-2000] M.A. No. 371/Del/2010 [ in ITA no. 1530/Del/2009 – A.Y. 2000-2001] M.A. No. 372/Del/2010 [ in ITA no. 1531/Del/2009 – A.Y. 2001-02] M.A. No. 373/Del/2010 [ in ITA no. 1532/Del/2009 – A.Y. 2002-03] M.A. No. 374/Del/2010 [ in ITA no. 1533/Del/2009 – A.Y. 2003-04] M.A. No. 375/Del/2010 [ in ITA no. 295/Del/2009 – A.Y. 2004-05] M.A. No. 376/Del/2010 [ in ITA no. 3626/Del/2009 – A.Y. 2004-05] ACIT, Central Circle-12, New Delhi Vs. Mr. Vijay Dixit, 1/1, Shanti Niketan, New Delhi-110021 PAN: AAEPD1942Q APPLICANT RESPONDENT Department by Sh. Gaurav Pundir, Sr. DR Assessee by Sh. Aditya Kumar Sharma, Adv. Date of hearing 25.02.2022 Date of pronouncement 23.05.2022 O R D E R PER KUL BHARAT, JM: The above captioned misc. applications u/s 254(2) of the Income-tax Act, 1961, hereinafter referred to as the “Act”, have been preferred by the Revenue, seeking recalling of the consolidated order dated 09.10.2009 passed by the Income Tax Appellate Tribunal Delhi Bench “D” in the aforementioned appeals of group cases. Since common contentions have been made by the Revenue in the impugned misc. applications, all the 3 MA nos. 356 to 363 & ors ACIT Vs. Senior Builders Ltd. & ors misc. applications were heard together and are being disposed of by a consolidated order, for the sake of convenience. 2. For the sake of clarity, we reproduce the contents of M.A. No. 356/Del/2010 (in ITA no. 3128/Del/2009 for A.Y. 1998-99), in the case of M/s Senior Builders Ltd. as under: “In the matter of Miscellaneous Application in the case of in the case of M/s Senior Builders Ltd. (ITA No. 3128/Del/2009 for A.Y. 1998-99 dated 09/10/2009 It is most respectfully submitted as under:- The issue in this case is interpretation of Explanation l(ii) below Sub Section 4 of section 153 of IT Act for the purpose of computation of limitation period for completion of assessment u/s 153A of I. T. Act 1961 (the Act). The relevant clause is reproduced herein below:- Explanation l.-In computing the period of limitation for the purposes of this section- (i) ..... . (ii) the period during which the assessment proceeding is stayed by an order or injunction of any court, or (iia) ..... . (iii) the period commencing from the late on which the Assessing Officer directs the assessee to get his accounts audited under sub-section (2A) of s ection 142 and ending with the last date on which the assessee is required to furnish a report of such audit under that sub- section, or (iv)......(iva)........(vi) ......(vii)..... shall be excluded : Provided that where immediately after the exclusion of the aforesaid time or period, the period of limitation referred to in sub-sections (1), (1A), (1B), (2), (2A) and (4) available to the Assessing Officer for making an order of assessment, reassessment or recomputation, as the case may be, is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to be extended accordingly" 4 MA nos. 356 to 363 & ors ACIT Vs. Senior Builders Ltd. & ors Therefore, the time period for which the assessment proceeding were stayed by Hon'ble Delhi High Court should be excluded for the purpose of computation of limitation period. In this case the Hon'ble High Court vide W.P. (C) 4954/2006 had stayed the proceedings and then it passed an order on 18/12/2006 giving the Revenue time of one week (7 days) to issue fresh show cause notice u/s 142(2A) and directed that the assessee shall file its reply within two weeks (14 days) of receipt of such notice. Thereafter, the final decision whether or not to order a Special Audit was to be taken by the Department within a fortnight (15 days) of submission of the reply by the assessee. This time schedule laid down by the Hon'ble High Court started from 18/12/2006. The Revenue issued the show cause notice on 22/12/2006, which was well within time frame of one week provided by the Hon'ble High Court. Thereafter, the assessee could have filed reply by 05/01/2007 (i.e. within two weeks), and only thereafter, the Revenue could have proceeded any further. However, the Hon'ble ITAT in its order dated 09/10/2009 has observed that the issue became time barred latest by 27/12/2006, this observation being obviously contradictory and in disregard to the above mentioned time schedule laid down by the Hon'ble Delhi High Court. The Revenue was bound to follow the time frame laid down by the Hon'ble High Court. The Revenue could not have passed the order by 27/12/2006 as it was bound to follow the order dated 18.12.2006 of the Hon'ble High Court, and if the observation of the Hon'ble ITAT in the order dated 09.10.2009, that the matter should have been disposed off by 27.12.2006 was followed by the Revenue, then it would have amounted to a CONTEMPT of the orders of the Hon'ble Delhi High Court. The Hon'ble ITAT did not exclude the abovementioned periods of one week (7 days), two weeks (14 days) and a fortnight (15 days) which were laid down in the time schedule provided by the Hon'ble High Court for disposing off the matter, which was subject matter of Writ. Thus by not excluding these periods a mistake or error has occurred in the order of the Hon'ble ITAT. In view of these facts the Misc. Application is being filed with the request that the Hon'ble ITAT may recall their consolidated order dated 09/10/2009 in above mentioned appeals. It is further prayed that the reasons cited in the undated notice u/s 254(2), (which is accompanied by a note dated 15.02.2010), issued by the Hon'ble ITAT "D" Bench suo-motto are not correct and justifiable reasons because the appeals of assessee as well as the department pertaining to all the four assessees were heard together and the case of Shri Man Singh Tosaria is a totally different case. 5 MA nos. 356 to 363 & ors ACIT Vs. Senior Builders Ltd. & ors The two case laws cited in the said notice u/s 254(2) viz the case of Vijay Int Udyog reported in 152 ITR 111 (Supreme Court) & in the case of Balwant Singh Arora reported in 180 ITR 400 (Punjab & Haryana High Court) lay down that assessee's appeal and department's appeal of a particular assessee for a particular year must be heard together. However, in both these Case Laws the issue was not of protective and substantive assessments but was that of appeals filed by the assessee and by the Revenue for the same assessee for the same year. There was no mention at all in any of these orders that the substantive and protective assessments are to be heard or disposed off together. Thus the reasons cited by the Hon'ble ITAT are not based on facts and correct interpretation of law and hence they should not be the basis of recalling the order. It is also submitted that the above mentioned case of Sh Man Singh Tosarria was taken up for hearing by the "E" Bench of the Hon'ble ITAT, Delhi and the final hearing has already been concluded by the "E" Bench of the Hon'ble Tribunal on 14.01.2010 and their decision for sending the matter to Special Bench was pronounced in open court on 14.01.2010. It is further submitted that the ITA No 1566/Del/2009 pertaining to the department's appeal was also decided by the consolidated order dated 9/10/2009. But this ITA does not find mention in the Note annexed with notice u/s 254(2), in the last part of Para 1 on page 4 of the above mentioned note which gives show cause for recalling of the order of the Tribunal dated 09.10.2009, and to that extent also, the said notice for recalling the consolidated order dated 9/10/2009 is defective. Prayer In view of the submissions made hereinabove, it is respectfully prayed that: i. The consolidated order dated 9/10/2009 of the Hon'ble ITAT "D" Bench may kindly be recalled in view of the mistake in the order in the form of disregarding the direction given in the order dated 18/12/2006 of the Hon'ble Delhi High Court. ii. The ITAT has committed mistake in computing the period of limitation for issue of notice u/s 142(2A) and in computation of period of limitation for assessment by ignoring the period allowed by the High Court vide order dated 18/12/2006. iii. The above mentioned consolidated order dated 9/10/2009 of the Hon'ble ITAT "D" Bench may not be recalled on the basis of reasons mentioned in the Note dated 15/02/2010 annexed with notice u/s 254(2) of the Act. 6 MA nos. 356 to 363 & ors ACIT Vs. Senior Builders Ltd. & ors iv. The reliance on judgment in case of Vijay Intt Uyog (152 ITR 111) (SC) and in the case of Balwant Singh Arora (180 ITR 400) (P & H) for issuing the said notice is misplaced. v. The facts related to the nature of assessment i.e. Protective or substantive, in the case of Sh Man Singh Tosaria, mentioned in the notice, which is the basis for issuing the notice, are incorrect.” 3. The learned DR reiterated the submissions as made in the misc. application, reproduced above, and submitted that while passing the impugned orders the Tribunal committed a mistake by not excluding the period laid down in the time schedule provided by the Hon’ble High Court for disposing of the matter, which was subject matter of writ, for the purpose of computation of limitation period for issue of notice u/s 142(2A) and in computation of period of limitation for completion of assessment u/s 153 of the Act. The learned DR, accordingly, submitted that the impugned order dated 9.10.2009 passed by the Tribunal in the above captioned appeals suffers from a mistake which is apparent on the record and therefore, the impugned order may be recalled for decision afresh in consonance with the order of the Hon’ble High Court in writ petition W.P.(C) 4954/2006. 4. Per contra, learned counsel for the assessee opposed the submissions and submitted that the Tribunal while passing the impugned order has duly taken into consideration the order of the Hon’ble High Court dated 18.12.2006 passed in the writ petition, referred to by the Revenue and after elaborate discussion has arrived at its decision. He submitted that under the guise of misc. applications the Department wants the Tribunal to review its own order which is not permissible u/s 254(2) of the Act. He accordingly, submitted that the instant misc. applications preferred by the Revenue may be dismissed. He further submitted that in view of the judgment of Hon’ble Supreme 7 MA nos. 356 to 363 & ors ACIT Vs. Senior Builders Ltd. & ors Court rendered in the case of CIT vs. Reliance Telecom Ltd. in Civil appeal No. 7110 of 2021, the instant applications deserve to be dismissed. 5. We have heard rival submissions and perused the material available on record. On perusal of the Tribunal’s order dated 9.10.2009, we find that the Tribunal in arriving its conclusion has duly taken into consideration all aspects of the matter including the order of the Hon’ble Delhi High Court dated 18.12.2006 passed in the writ petition. Therefore, it cannot be said that the Tribunal has omitted or failed to consider any material in arriving its conclusion. We find no mistake, much less apparent on record, so as to recall the impugned order u/s 254(2). On going through the contents of the misc. applications it seems that the Revenue misled the Tribunal to review its own order, which is not permissible under the law and is outside the scope of Section 254(2) of the Act. 6. The Hon’ble Supreme Court in CIT Vs. M/s Reliance telecom Ltd. (supra) has held as under: “5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only 8 MA nos. 356 to 363 & ors ACIT Vs. Senior Builders Ltd. & ors to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 7. Accordingly, in view of the judgment of Hon’ble Supreme Court in Reliance Telecom Ltd. (supra), the misc. applications moved by the Revenue are liable to be dismissed. Hence, M.A. Nos. 356 to 363/Del/2010 (in the case of M/s Senior Builders Ltd.); 364 to 367/Del/2010, 424 to 429/Del/2010 (in the case of M/s Westend Promoters Pvt. Ltd.); and 369 to 376/Del/2010 (in the case of Mr. Vijay Dixit), filed by the Revenue are dismissed. 8. In the result, misc. applications filed by the Revenue are dismissed. Order pronounced in open court on 23.05.2022. Sd/- Sd/- (NARENDRA KUMAR BILLAIYA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER *M P* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI 9 MA nos. 356 to 363 & ors ACIT Vs. Senior Builders Ltd. & ors Draft dictated 06.05.2022 Draft placed before author 06.05.2022 Approved Draft comes to the Sr. PS/PS Order signed and pronounced on File comes to P.S. File sent to the Bench Clerk Date on which file goes to the AR Date on which file goes to the Head Clerk Date of dispatch of Order Date of uploading on the website