ACIT CIR 21(3), V. SNEHA ENTERPRISES,

MA 406/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7266 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 18-11-2011
• Assessment Year: misc
• Appeal Filed On: 26-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENOR
• Assessee Lawyers: REEPAL G TRALSHAWALA
• Keywords: Block assessment

Judgement Text

1 M.A. NO.406/MUM/2011 M/S. SNEHA ENTERPRISES IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI R.K.PANDA, A.M. AND SHRI VIJAY PAL RAO, J.M. M.A. NO. 406/MUM/2011 (ARISING OUT OF I.T.(SS) NO.47/MUM/2008) BLOCK PERIOD: 21.07.1995 TO 24.01.2001 ACIT CIRCLE 21(3), MUMBAI VS. M/S. SNEHA ENTERPRISES, D-101, PRASHANT APARTMENT, POWAI, MUMBAI-400 076 PAN NO: AAAFS 9847 D (APPELLANT) (RESPONDENT) A PPELLANT BY : SHRI P.K.B. MENOR RESPONDENT BY : SHRI REEPAL G. T R A L S H A W A L A DATE OF HEARING : 18.11.2011 DATE OF PRONOUNCEMENT : 25.11.2011 O R D E R PER R.K. PANDA, A.M. THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL THE ORDER PASSED BY IT WHEREIN T HE APPEAL OF THE ASSESSEE WAS ALLOWED ON THE TECHNICAL GROUND THAT N O NOTICE U/S.143(2) OF THE I.T. ACT WAS ISSUED TO THE ASSESSEE BEFORE C OMPLETION OF THE BLOCK ASSESSMENT. 2. THE LD. DR DREW THE ATTENTION OF THE BENCH TO TH E CONTENTS OF THE MISCELLANEOUS APPLICATION WHICH READS AS UNDER: 2 M.A. NO.406/MUM/2011 M/S. SNEHA ENTERPRISES THE HON'BLE ITAT HAS VIDE ITS ORDER DATED 28.01.20 11 QUASHED THE BLOCK ASSESSMENT ORDER DATED 28.05.2003 PASSED BY THE ASSESSING OFFICER ON THE GROUND THAT NO NOTICE U/S.143(2) HAS BEEN ISSUED BEFORE PASSING THE ASSES SMENT ORDER. THE GROUND OF THE NOTICE U/S.143(2) NOT BEING ISSUE D BY THE ASSESSING OFFICER WAS NOT TAKEN BY THE ASSESSEE IN ITS APPEAL FILED BEFORE THE LD. CIT(A)-XXI AND THIS GRO UND HAS BEEN RAISED BY THE ASSESSEE FOR THE FIRST TIME UNDE R RULE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 IN THE APPEAL FLED BY THE REVENUE AGAINST THE ORDER OF THE LD. CI T(A). THE HON'BLE ITAT HAS FAILED TO TAKE COGNIZANCE OF T HE PROVISIONS OF SECTION 292BB OF THE INCOME TAX ACT, 1961 WHICH HAS BEEN INTRODUCED BY THE FINANCE ACT, 2008 WITH EFFECT FROM 01.04.2008 WHILE HOLDING THAT THE ASSES SMENT ORDER WAS BAD IN LAW AND LIABLE TO BE QUASHED. THE AHMEDABAD BENCH C OF THE ITAT HAS, VIDE ITS ORDER 30.09.2008 IN THE CASE OF ITO V. VARIA PRATIK ENGIN EERING (2009) 120 TTJ (AHD.) I, HELD THAT WITH THE INTRODU CTION OF SECTION 292BB IN THE INCOME TAX ACT, 1961, AN ASSES SEE CANNOT BE PERMITTED TO RAISE ANY OF THE OBJECTIONS ENUMERATED IN THE SAID SECTION 292BB AFTER 31.03.2008 ONCE IT IS SHOWN THAT HE HAS APPEARED IN ANY PROCEEDING OR COOPERATE D IN ANY INQUIRY RELATED TO AN ASSESSMENT AND THE PROVISIONS OF SECTION 292BB WILL HAVE TO BE INVOKED IN ALL THE PENDING PR OCEEDINGS INCLUDING APPELLATE PROCEEDINGS AFTER 31.03.2008. O N EXAMINATION OF THE RECORDS, IT IS SEEN THAT THE ASS ESSEE HAS NOT RAISED ANY OBJECTION BEFORE THE COMPLETION OF T HE ASSESSMENT ORDER THAT THE NOTICE U/S.143(2) HAS NOT BEEN SERVED UPON HIM. HENCE IN THE LIGHT OF THE PROVISIONS OF SECTION 292 BB OF THE INCOME TAX ACT, 1961 AND THE DECISION OF THE HO N'BLE AHMEDABAD BENCH OF THE ITAT IN THE CASE OF VARIA PR ATIK ENGINEERING, THE HON'BLE ITAT MAY RECALL ITS ORDER DATED 28.01.2011 AND DECIDE THE GROUNDS RAISED BY THE REV ENUE ON MERIT. 2.1 REFERRING TO THE ABOVE, HE SUBMITTED THAT THE T RIBUNAL WHILE DECIDING THE APPEAL HAS NOT CONSIDERED THE DECISION OF THE HON'BLE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF VARI A PRATIK 3 M.A. NO.406/MUM/2011 M/S. SNEHA ENTERPRISES ENGINEERING (SUPRA). FURTHER, THE HONBLE SUPREME C OURT IN THE CASE OF HOTEL BLUE MOON REPORTED IN 321 ITR 362 HAS NOT CON SIDERED THE PROVISIONS OF SECTION 292BB OF THE I.T. ACT. SINCE THE ASSESSEE HAS NOT CHALLENGED THE NON RECEIPT OF NOTICE U/S.143(2) DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS AND IN FACT HAS PARTICIPATED IN THE PROCEEDINGS, THEREFORE, THE TRIBUNAL IS NOT JUSTIFIED IN CANCELL ING THE BLOCK ASSESSMENT. HE ACCORDINGLY, SUBMITTED THAT THE ORDE R OF THE TRIBUNAL SHOULD BE RECALLED AND THE ISSUE BE DECIDED ON MERI T. 4. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND, SUBMITTED THAT THE MISCELLANEOUS APPLICATION FILED BY THE REV ENUE IS A FRIVOLOUS ONE. HE SUBMITTED THAT AFTER THE DECISION OF THE AH MEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF VARIA PRATIK ENGINEERING (S UPRA) THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF KUBER TOBACCO PRODUCTS P. LTD. VS. DCIT REPORTED IN 117 ITD 273 HAS HELD THAT APPLICAB ILITY OF SECTION 292BB IS NOT STRICTLY RESTRICTED TO USE OF NOTICE U /S.143(2). HE SUBMITTED THAT SINCE THERE IS NO APPARENT MISTAKE IN THE ORDE R OF THE TRIBUNAL, THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY T HE REVENUE HAS TO BE DISMISSED. 4.1 REFERRING TO THE LETTER ADDRESSED BY THE CCIT T O CIT, HE DREW THE ATTENTION OF THE BENCH TO THE FOLLOWING : I AGREE NO APPEAL U/S.260A IS POSSIBLE AT THIS STAG E. HOWEVER, SINCE 292BB WAS INTRODUCED W.E.F. 01.04.20 08 HAS NOT BEEN BROUGHT TO THE NOTICE OF HON'BLE ITAT NOR NOTICED BY THE ITAT. HENCE, THIS POINT MAY BE TAKEN UP AS A GR OUND IN THIS M.A. THE CIT MAY CONSIDER THIS. THE CIT MAY BE ASKED TO REPORT ON ACTION TAKEN ON THIS RAP OBJECTION RAISED IN 2005 AND ALSO WHAT ACTION WAS TAKEN PURSUANT TO CIT(DR) S LETTER ON 19.11.2004. 4.2 HE SUBMITTED THAT THIS COPY OF THE LETTER WAS S UPPLIED TO THE ASSESSEE ALONG WITH THE MISCELLANEOUS APPLICATION F ILED BY THE REVENUE. 4 M.A. NO.406/MUM/2011 M/S. SNEHA ENTERPRISES HE SUBMITTED THAT THE ABOVE CLEARLY SHOWS THAT JUST TO COVER UP THE MISTAKES COMMITTED BY THE DEPARTMENT THEY HAVE FILE D THIS FRIVOLOUS MISCELLANEOUS APPLICATION. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND THE VARIOUS DECISIONS RELIED UPON. WE FIND THE TRIBUNAL AFTER CONSIDERING A SERIES OF DECISIONS INCLUDING THE DEC ISION OF THE HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA ) CONCLUDED THAT SINCE NO NOTICE U/S.143(2) HAS BEEN ISSUED IN THE I NSTANT CASE, THE BLOCK ASSESSMENT PROCEEDINGS HAS TO BE QUASHED. THE LD. D R COULD NOT POINT OUT ANY APPARENT MISTAKE IN THE ORDER OF THE TRIBUN AL. IF THE REVENUE WAS AGGRIEVED BY THE DECISION OF THE TRIBUNAL, THE REMEDY WAS ELSEWHERE AND CERTAINLY NOT BEFORE THE TRIBUNAL THROUGH A MIS CELLANEOUS APPLICATION. THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION IS NOW TRYING TO REQUEST THE TRIBUNAL TO REVIEW ITS OWN OR DER WHICH IS NOT PERMISSIBLE IN THE LAW. SINCE THE LD. DR COULD NOT POINT OUT ANY APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL, THER EFORE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS D ISMISSED. 6. IN THE RESULT, THE M.A. FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 25 TH DAY OF NOVEMBER, 2011. SD/- ( VIJAY PAL RAO ) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED : 25/11/2011 5 M.A. NO.406/MUM/2011 M/S. SNEHA ENTERPRISES COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, E- BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI