M/s SANWARIA AGROILS LIMITED, Bhopal V. The ACIT 1(1), Bhopal

MA 48/IND/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0109 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-03-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K G GOEL
• Keywords: Opportunity of being heard; Reassessment proceedings
• Section: 147; 148

Judgement Text

SANWARIA AGRO OILS LTD M.A NO. 48/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER M.A. NO.48/IND/2017 (ARISING OUT OF ITA NO.62/IND/2013) ASSESSMENT YEAR 2008-09 REVENUE BY S HRI K.G. GOEL , SR.DR ASSESSEE BY NONE DATE OF HEARING 22 .03 .2 019 DATE OF PRONOUNCEMENT 01 .0 4 .2019 O R D E R PER MANISH BORAD. THE ABOVE CAPTIONED MISCELLANEOUS APPLICATION IS F ILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2008-09 RAISING FOLLOWING ISSUES; 1. THAT THE ASSESSEE HAS PREFERRED APPEAL AGAINST THE ORDER OF ASSESSMENT U/ S 147 PASSED BY THE A.O. THE FOLLOWIN G ADDITIONAL GROUNDS OF APPEAL WERE ADMITTED BY THE HON'BLE TRIB UNAL DURING THE COURSE OF APPEAL PROCEEDING:- M/S. SANWARI A AGRO O ILS LTD, E-1/1 ARERA COLONY, BHOPAL VS. INCOME TAX OFFICER 2 ( 1 ), INDORE ( APPELLANT ) (RESPONDENT ) PAN AACCS 1449 N SANWARIA AGRO OILS LTD M.A NO. 48/IND/2017 2 A. THAT THE PROCEEDING OF REASSESSMENT INITIATED BY ISSUE OF NOTICE DT. 9-11- 2011 WERE BAD IN LAW AS NO REASON FOR ESCAPEMENT OF INCOME WAS RECORDED PRIOR TO ISSUE OF NOTICE. B. THAT THE ORDER OF REASSESSMENT PASSED B THE A.O. IS VOID AND BAD IN LAW AND THE SAME DESERVES TO BE ANNULLED. 2. THAT BOTH THESE GROUNDS OF APPEALS WERE DISMIS SED VIDE PARA 3 OF THE ORDER OF THE HON'BLE TRIBUNAL. PARA 3 OF THE OR DER IS REPRODUCED FOR READY REFERENCE:- ' WE HAVE HEAD BOTH THE SIDES. THE GROUND AGAINST R EOPENING OF ASSESSMENT WAS NEVER RAISED BEFORE THE AUTHORITIES BELOW. SINCE BE ING A LEGAL GROUND WHICH GOES TO THE ROOT OF THE ISSUE, AFTER HEARING BOTH THE SIDES , WE HAVE ADMITTED THE ADDITIONAL GROUND WE HAVE HEARD BOTH THE SIDES. WE HAVE ALSO G ONE THROUGH THE CASE LAWS RELIED UPON AND ALSO PERSUED ALL RELEVANT MATERIAL AND DOCUMENTS. THE FACTS OF THE CASE SHOW THAT THE CASE WAS REOPENED BY ISSUING NOTICE U/S 148 ON 9-11-2011 WHICH WAS DULY SERVED UPON THE ASSESSEE. WE WOULD ALSO LIKE TO NOTE THAT THIS NOTICE WAS ISSUED AFTER RECORDING REASONS AS REQUIR ED BY LAW. IT IS ALSO CLEAR FROM RECORD THAT THE COPY OF REASONS REC ORDED WAS PROVIDED TO THE ASSESSEE ON 16-02-2012 AND THE ASSESSEE HAS NOT RAI SED AT!)! OBJECTION AGAINST THE REOPENING . THE ASSESSING OFFICER FINALIZED THE ASSESSMENT AFTE R PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD BY ISSUING NOTICE U/ S 143(2) . CONSIDERING ALL THESE ASPECTS WE HOLD THAT THERE WAS NO FACTUAL OR LEGAL LACUNA IN INITIATING THE REASSESSMENT PROCEEDINGS. THEREFORE, THIS ADDITIONA L GROUND RAISED BY THE ASSESSEE BEFORE US HAS NO MERIT, THE SAME IS DISMISSED' 3.THAT AN APPARENT MISTAKE HAS CREPT IN THE ORDER O F THE HON'BLE TRIBUNAL INADVERTENTLY MAKING THE OBSERVATION WITHO UT REFERRING TO THE RECORD OF THE CASE THAT THE NOTICE U/ S 148 DT. 9-11-2011 WAS ISSUED AFTER RECORDING REASONS AS REQUIRED BY LAW. THE ASSESSEE HAS FILED ON RECORD THE COPY OF REASONS RECORDED BY THE A.O. WHICH HAS SANWARIA AGRO OILS LTD M.A NO. 48/IND/2017 3 BEEN RECORDED ON 11-11-2011, AFTER ISSUE OF NOTICE U/ S 148 AND NOT BEFORE ISSUING NOTICE U/ S 148 AS OBSERVED BY THE HON'BLE TRIBUNAL IN ITS ORDER. 4. THAT ABOVE APPARENT ERROR HAS LED TO DISMISSAL O F APPEAL OF THE ASSESSEE ON THE ABOVE LEGAL GROUNDS AND CAUSED GRAV E INJUSTICE TO THE ASSESSEE. 2. DURING THE COURSE OF HEARING NON APPEARED ON BEH ALF OF THE ASSESSEE. HOWEVER FOLLOWING WRITTEN SUBMISSIONS DA TED 22.02.2019 PLACED ON RECORD WHICH READS AS FOLLOWS; 1.THAT IN THE COURSE OF HEARING HELD ON IS' JANUARY,2019, THE DEPARTMENT HAS FILED TWO SETS OF COVERING LETTER DT. 24-11-201 1 ALONG WITH A CERTIFIED COPY OF REASONS CLAIMED T HA 'E BEEN RECORDED ON 9-11-2011 AND ALSO A CERTIFIED COPY OF REASONS RECORDED ON 1-11-2011. DU RING THE COURSE OF ASSESSMENT PROCEEDING, THE A.O. HAS PROVIDED THE AS SESSEE A CERTIFIED COPY OF REASON RECORDED ON 11-11-20111. 2. THAT NOW BY FILING ANOTHER SET OF REASON CLAIMED TO HAVE BEEN RECORDED ON 9-11-2011, IT IS CLAIMED THAT THE PROCEEDING HAS BEEN INITIATED IN ACCORDANCE WITH LAW. 3. THAT THE DEPARTMENT HAS FILED TWO SETS OF COVER ING LETTER DT. 24-11-2011 AND IT IS APPARENT FROM PERSUING ONE SET THAT THERE ARE CUTTINGS, EROSION SANWARIA AGRO OILS LTD M.A NO. 48/IND/2017 4 ETC WHICH ARE APPARENT. BOTH THE SETS DO NOT TALLY. IN THE SUB: LINE, IN ONE SET NAME OF THE COMPANY IS MENTIONED AS 'SANWARIA A GROILS' WHILE IN THE OTHER SET NAME OF THE COMPANY IS MENTIONED AS ( SAN WARIA AGROILS LIMITED'. 4. THAT THESE DISCREPANCIES CAN BE EXPLAINED ONLY BY THE A.O. WHO HAS WRITTEN THESE DOCUMENTS. 5. THAT IN THE CIRCUMSTANCES OF THE CASE, THE A.O. MAY KINDLY BE DIRECTED TO EXPLAIN THESE DISCREPANCIES BY FILING AN AFFIDAV IT. 3. LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT T HE ASSESSEE WAS DULY SERVED NOTICES U/S 148 OF THE ACT ALONG WI TH THE REASONS RECORDED. ASSESSEE PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND NEVER CHALLENGED THESE ISSUES BEFORE THE LOWER AUTH ORITIES. HON'BLE TRIBUNAL HAD ADJUDICATED THE ISSUE AFTER PERUSAL OF THE RECORDS, THEREFORE THIS MISCELLANEOUS APPLICATION DESERVES T O BE DISMISSED. 4. WE HAVE HEARD THE ARGUMENTS OF LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORDS AS WELL AS W RITTEN SUBMISSIONS FILED BY THE ASSESSEE. THROUGH THIS MI SCELLANEOUS APPLICATION ASSESSEE HAS CLAIMED THAT AN APPARENT M ISTAKE HAS CROPPED IN THE ORDER OF THE TRIBUNAL INADVERTENTLY MAKING THE SANWARIA AGRO OILS LTD M.A NO. 48/IND/2017 5 OBSERVATION REFERRING TO THE RECORD OF THE CASE THA T THE NOTICE U/S 148 DATED 9.11.2011 WAS ISSUED AFTER RECORDING THE REASONS AS REQUIRED BY LAW. IN THE WRITTEN SUBMISSION IT WAS ALSO BEEN PLEADED THAT NOTICE U/S 148 OF THE ACT WAS ISSUED ON 9.11.1 1 WHEREAS THE REASONS WERE RECORDED ON 11.11.11 THEREBY RAISING C ONFUSION THAT NOTICE U/S 148 OF THE ACT WAS ISSUED ON 9.11.11 WI THOUT RECORDING THE REASONS. 5. WE HAVE CAREFULLY GONE THROUGH THE FINDING OF TH E TRIBUNAL AND OBSERVE THAT THE TRIBUNAL HAS GONE THROUGH THE CASE LAWS RELIED UPON BY BOTH THE PARTIES AND ALSO PERUSED ALL THE R ELEVANT MATERIAL AND RECORDS BEFORE COMING TO THE FINDING THAT THE L D. A.O HAS FINALIZED ASSESSMENTS AFTER PROVIDING REASONABLE OP PORTUNITY AND ALSO HOLDING THAT THERE IS NO FACTUAL ERROR OR LEGA L LACUNA IN INITIATING REASSESSMENT PROCEEDINGS AND ACCORDINGLY TRIBUNAL DISMISSED THE ADDITIONAL GROUND RAISED BY THE ASSES SEE. WE THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE OF CONSIDERED VIEW THAT THERE IS NO APPARENT MISTAKE I N THE ORDER OF TRIBUNAL DATED 21.9.2015 AS THE DECISION HAS BEEN G IVEN AFTER PERUSING ALL RELEVANT MATERIAL AND DOCUMENTS. WE T HEREFORE DO NOT SANWARIA AGRO OILS LTD M.A NO. 48/IND/2017 6 FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE AND THE SAME DESERVES TO BE DISMISSED. 6. IN THE RESULT THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 01.04.201 9. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 01 APRIL, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE