ACIT - 17(3), MUMBAI V. VINODKUMAR P. AGARWAL, MUMBAI

MA 467/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5851 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 20-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGH
• Keywords: Procedural lapse
• Section: 143(3); 254(2); 153; 22; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER M.A. NO. 467, 468 & 469 /MUM./2019 ( ARISING OUT OF C.O. NO. 176, 177 & 178 /MUM./20 18 ) ( ASSESSMENT YEAR : 2 0 09 10, 2010 11 & 2011 12 ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 17(3), MUMBAI . APPELLANT V/S VINOKKUMAR P. AGARWAL 3/1, BRADYS FLATS SORAB BHARUCHA ROAD COLABA, MUMBAI 400 005 PAN ACSPA0793N . RESPONDENT REVENUE BY : SHRI AMIT PRATAP SINGH ASSESSEE BY : SHRI TANZIL R. PADVEKAR DATE OF HEARING 22 .1 1 .2019 DATE OF ORDER 14.02.2020 O R D E R PER SAKTIJIT DEY. J.M. BY THE S E APPLICATION S , THE ASSESSEE SEEKS RECTIFICATION / RECALL OF THE ORDER DATED 28 TH FEBRUARY 20 19 , PASSED IN ITA NO .176, 177 AND 178 /MUM./20 18 . 2. WE HAVE HEARD BOTH THE PARTIES. IT IS THE CASE OF THE REVENUE THAT WHILE ALLOWING THE CROSS OBJECTIONS FILED BY THE ASSESSEE, THE TRIBUNAL HAS DECLARED THE ASSESSMENT ORDERS PASSED UNDER SECTION 2 VINOKKUMAR P. AGARWAL 143(3) R/W SECTION 147 OF THE ACT AS INVALID DUE TO NON COMMUNICATION OF REASONS RECORDED FOR RE OPENING OF ASSESSMENT TO THE ASSESSEE. IT IS THE CASE OF THE REVENUE THAT NON COMMUNICATION OF REASONS RECORDED FOR RE OPENING OF ASSESSMENT IS A PROCEDURAL LAPSE FOR WHICH THE ENT IRE PROCEEDINGS IS NOT VITIATED AND IT WOULD STILL BE POSSIBLE FOR THE ASSESSING OFFICER TO PROCEED FURTHER AFTER COMPLYING WITH THE REQUIREMENT OF LAW AND FOLLOWING DUE PROCEDURE. IN THIS CONTEXT, THE REVENUE HAS RELIED UPON THE DECISION OF THE HONBLE MA DRAS HIGH COURT IN HOME FINDERS HOUSING LTD. V/S ITO, [2018] 93 TAXMANN.COM 371 (MAD.). 3. HAVING CONSIDERED RIVAL SUBMISSIONS, WE FIND THAT AS FAR AS THE FACTUAL ASPECT OF THE ISSUE IS CONCERNED, THERE IS NO DISPUTE THAT BEFORE COMPLETING THE ASSESSMENT, TH E ASSESSING OF FICER HAS NOT COMMUNICATED THE REASONS RECORDED FOR RE OPENING OF ASSESSMENT IN SPITE OF SPECIFIC REQUEST MADE BY THE ASSESSEE TO COMMUNICATE THE REASONS. EVEN , LEARNED COMMISSIONER (APPEALS) HAS ALSO ACCEPTED THE AFORESAID FACTUAL POSITION. THE TRIBUNAL, WHILE CONSIDERING ASSESSEES GROUNDS CHALLENGING THE VALIDITY OF THE RE OPENING OF ASSESSEE DUE TO NON SUPPLY OF REASONS RECORDED, H AS RELIED UPON THE DECISION OF THE HON'BLE SUPREME COURT OF GKN DRIVE SHAFT V/S ITO, [2003] 259 ITR 19 (SC), AND THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN PCIT V/S SODIMAN INVESTMENTS PVT. LTD., [2018] 93 TAXMANN.COM 153 3 VINOKKUMAR P. AGARWAL (BOM.), AND HAS HELD THAT COMMUNICATION OF REASO NS RECORDED FOR RE OPENING OF ASSESSMENT TO THE ASSESS EE IS A MANDATORY REQUIREMENT OF LAW BEFORE COMPLETING THE ASSESSMENT. THUS, APPLYING THE RATIO LAID DOWN IN THE JUDICIAL PRECEDENTS, THE TRIBUNAL HAS ULTIMATELY HELD THE ASSESSMENT PROCEEDINGS TO BE IN VALID AS THE ASSESSING OFFICER HAD FAILED TO COMMUNICATE THE REASONS FOR RE OPENING OF ASSESSMENT BEFORE COMPLETING THE ASSESSMENT . NOW THE REVENUE SEEKS REVIEW OF THE AFORESAID DECISION BY RELYING UPON THE DECISION OF THE HONBLE MADRAS HIGH COURT. IN OUR CONSIDERED OPINION, THE AFORESAID PLEA OF THE REVENUE IS NOT ACCEPTABLE AS SECTION 254(2) OF THE ACT IS ONLY MEANT FOR RECTIFYING MISTAKE APPARENT ON THE FA CE OF RECORD AND NOT FOR REVIEW OF ANY DECISION TAKEN EARLIER. THEREFORE, THE APPLICATIONS FILED BY THE REVENUE BEING DEVOID OF MERIT ARE DISMISSED. 4. IN THE RESULT, MISC. APPLICATIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.02.2020 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 14.02.2020 4 VINOKKUMAR P. AGARWAL COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI