DCIT 3(2), V. PRITVI PRAKASHAN P. LTD,

MA 499/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0982 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: L
• Assessment Year: 2006-2007
• Appeal Filed On: 01-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AJAY
• Keywords: Block assessment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI , , , BEFORE SHRI SANJAY ARORA, AM AND SHRI AMIT SHUKLA , JM ./ M.A. NO.499/M/2012 (ARISING OUT OF IT(SS) NO. 84/M/2009) (BLOCK PERIOD ENDED: 18.02.2003) DY. CIT 3(2) ROOM NO.608/674, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 / VS. PRITHVI PRAKASHAN PVT. LTD. 189, SANE GURJI MARG, CHINCHPOKALI(W) MUMBAI- 400 011 # ./$ ./PAN/GIR NO. AAACP 5814 A ( % #& /APPELLANT ) : ( '(#& / RESPONDENT ) % #& ) / APPELLANT BY : SHRI DHARMESH SHAH '(#& * ) / RESPONDENT BY : SHRI AJAY + * , / DATE OF HEARING : 05.07.2013 -./ * , / DATE OF PRONOUNCEMENT : 30.08.2013 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE REVENUE UND ER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) IN RES PECT OF THE CAPTIONED ORDER DATED 14.03.2012 BY THE TRIBUNAL IN THE ASSESSEES CASE. VIDE ITS SAID APPLICATION THE REVENUE IMPUGNS THE ORDER UNDER REFERENCE AS PERVERSE ON TH E GROUND THAT THE SATISFACTION IN TERMS OF SECTION 158BD HAD BEEN DULY RECORDED BY THE ASSE SSING OFFICER (AO) OF M/S. SUNJEET ADVERTISEMENT PVT. LTD. (SAPL), THE PERSON SEARCHED , BEING THE SAME AS OF THE ASSESSEE, 2 M.A. NO. 499/MUM/2009 (B.P. 18.02.2003) DY. CIT VS. PRITHVI PRAKASHAN PVT. LTD. THE OTHER PERSON, ON 20.04.2004 , I.E., DURING THE COURSE OF ASSESSMENT PROCEEDINGS OF SAPL. THE SAID SATISFACTION HAD BEEN RECORDED BY TH E AO AND PLACED AS AN ORDER SHEET ENTRY IN THE FILE OF THE ASSESSEE, THE OTHER PERSON . AS SUCH, IT WAS WRONG ON THE PART OF THE TRIBUNAL TO HAVE STATED THAT NO SATISFACTION IN TER MS OF SECTION 158BD HAD BEEN RECORDED, QUASHING THE ISSUE OF NOTICE THERE-UNDER AND, CONSE QUENTLY, THE ASSESSMENT FRAMED IN PURSUANCE THERETO, ON THAT BASIS. THE RELIANCE BY I T ON THE DECISION IN CASE OF KRISHNA SUGAR CORP. VS. DY. CIT (2010) 113 TTJ (LUCK) 33 IS AGAIN MISPLACED INASMU CH AS THE FACTS OF THE SAID CASE ARE DIFFERENT. UNDER THE CIR CUMSTANCES IT PRAYS THAT THE IMPUGNED ORDER BE RECALLED AND A FRESH ORDER PASSED AS PER L AW NOTING THE CORRECT FACTS. 2. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD, BEING THE ORDER BY THE TRIBUNAL UNDER REFERENCE IN THE MAIN. WE FIND THAT BEFORE THE TRIBUNAL, THE LEARNED AR, THE ASSESSEES COUNSEL, MADE A CATEGORICAL SUBMISSION THAT THE SATISFACTION UNDER REFERENCE WAS NOT RECORDED DURING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS OF SAPL - RE FER PARA 7 OF THE IMPUGNED ORDER, THE RELEVANT PART OF WHICH READS AS UNDER: 7. IN REPLY, THE LEARNED COUNSEL RELIED ON . HE REITERATED HIS STAND THAT SATISFACTION WAS NOT RECO RDED DURING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS OF SAPL . [EMPHASIS, OURS] THE TRIBUNAL, THEREFORE, IN THE FACTS AND CIRCUMSTA NCES OF THE CASE, WAS OF THE VIEW THAT THE SATISFACTION RECORDED IN THE ORDER SHEET OF THE ASSESSEE-COMPANY ON 20.04.2004 WAS NOT AS CONTEMPLATED U/S. 158BD. THIS IMPRESSION OR UNDERSTANDING BY THE TRIBUNAL IS ALSO MANIFEST PER PARA 13 OF ITS ORDER, WHEREIN IT NOTES THAT THE SATISFACTION IN QUESTION HAD NOT BEEN RECORDED DURING THE COURSE OF PROCEEDINGS IN T HE CASE OF SAPL; ITS RELEVANT FINDINGS BEING AS UNDER: 13. APPLYING THE PROPOSITIONS LAID DOWN IN THESE CASE LAWS TO THE FACTS OF THE PRESENT CASE, WE HAVE TO NECESSARILY HOLD TH AT THE NOTICE ISSUED UNDER SECTION 158BD, WAS BAD IN LAW. THE SATISFACTION IN QUESTION HAS NOT BEEN RECORDED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) R/W 158BD IN THE C ASE OF SAPL . THE SATISFACTION NOTE IS RECORDED IN THE ORDER SHEET, I N THE CASE OF ASSESSEE AND 3 M.A. NO. 499/MUM/2009 (B.P. 18.02.2003) DY. CIT VS. PRITHVI PRAKASHAN PVT. LTD. NOTICE UNDER SECTION 158BD ISSUED. THE LUCKNOW BENC H OF THE TRIBUNAL IN KRISHNA SUGAR CORP. (SUPRA) HELD THAT EVEN WHEN THE ASSESSING OFFICER IN THE CASE OF PERSON SEARCHED AND OTHER PERSON, I S THE SAME SATISFACTION IS TO BE RECORDED ONLY IN THE CASE OF PERSON SEARCHED BEFORE TAKING ANY ACTION UNDER SECTION 158BD, IN THE CASE OF ANY OTHER PERSO N. ON THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE HAVE NO OTHER ALTERNA TIVE BUT TO QUASH THE NOTICE UNDER SECTION 158BD, ISSUED TO THE ASSESSEE ON 20TH APRIL 2004, AND TREAT THE ASSESSMENT AS NULL AND VOID . [EM PHASIS, OURS] THERE IS NO REFERENCE IN THE IMPUGNED ORDER TO THE DATE OF THE COMMENCEMENT AND COMPLETION OF THE BLOCK ASSESSMENT PROCEEDINGS IN T HE CASE OF SAPL , THE PERSON SEARCHED. AS SUCH, IT IS PATENT THAT IN THE VIEW OF THE TRIBU NAL THE SATISFACTION AS RECORDED BY THE ASSESSING OFFICER, WHO THOUGH WAS THE SAME FOR BOTH THE PERSON SEARCHED AND THE OTHER PERSON, I.E., QUA WHOM THE SATISFACTION IS BEING RECORDED, HAD NOT B EEN RECORDED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS IN THE CAS E OF SAPL. THIS CLEARLY FORMED ONE OF THE GROUNDS INFORMING ITS DECISION THAT THE IMPUGNE D NOTICE U/S. 158BD WAS NOT IN TERMS OF THE SAID SECTION. THE SAME WAS, ACCORDINGLY, DEC LARED BY IT AS NULL AND VOID. THE REVENUE BEFORE US HAS MADE A CATEGORICAL SUBMISSION THAT THE ASSESSMENT IN THE CASE OF SAPL WAS COMPLETED ON 28.02.2005 , WITH THE NOTICE U/S. 158BC BEING ISSUED TO IT ON 06.08.2003 . THE ASSESSEE-RESPONDENT HAS NOT CONTROVERTED THE SAID OR IN FACT ANY OTHER FACT AS STATED BY THE REVENUE PER ITS PETITION, WHI CH ARE CLEARLY PERTINENT AND RELEVANT. IT IS APPARENT THAT THIS FACT WAS NOT BROUGHT TO THE N OTICE OF THE TRIBUNAL DURING HEARING THE CAPTIONED APPEAL; ON THE CONTRARY, IT WAS GIVEN TO UNDERSTAND AND WAS OF THE CLEAR VIEW THAT THE IMPUGNED SATISFACTION WAS NOT RECORDED (AN D NOTICE U/S. 158BD ACCORDINGLY NOT ISSUED) DURING THE COURSE OF THE RELEVANT BLOCK ASS ESSMENT PROCEEDINGS OF SAPL. WE STRONGLY DISCOUNTENANCE THE INCORRECT STATEMENT OF FACT/S, WHICH IN ANY EVENT IS A PRIMARY FACT, BY THE LD. AR BEFORE THE TRIBUNAL IN THE APPE LLATE PROCEEDINGS. IN FACT, WE CONSIDER THE REVENUE TO BE AS MUCH RESPONSIBLE FOR THIS INCO RRECT ASSUMPTION OF FACT INASMUCH AS NEITHER DID IT, AS APPARENT, CLARIFY THIS ASPECT DU RING THE COURSE OF THE ASSESSEES APPEAL NOR IN FACT EVEN BEFORE US DURING THE HEARING OF TH E PRESENT RECTIFICATION PETITION, WHICH STANDS INSTITUTED BY THE REVENUE ITSELF. STATING TH E TRIBUNALS ORDER AS PERVERSE UNDER THE 4 M.A. NO. 499/MUM/2009 (B.P. 18.02.2003) DY. CIT VS. PRITHVI PRAKASHAN PVT. LTD. CIRCUMSTANCES IS CLEARLY IMPROPER. IT IS THIS NON-C LARIFICATION BY THE PARTIES THAT IN FACT LED US TO REMARK DURING THE COURSE OF HEARING ITSELF TH AT THESE ARE NOT REVIEW PROCEEDINGS, SO THAT WHERE THE TRIBUNAL HAS TAKEN NOTE OF ALL THE R ELEVANT FACTS, THE PETITION WOULD FAIL. WITHOUT DOUBT, THOUGH, AND NEVERTHELESS, THE TRIBUN AL HAS ALSO COMMITTED A MISTAKE INASMUCH AS IT HAS GIVEN A FINDING OF THE I MPUGNED SATISFACTION AS BEING NOT RECORDED DURING THE COURSE OF THE ASSESSMENT PROCEE DINGS OF SAPL WITHOUT ASCERTAINING THE DATE OF COMPLETION OF SAID PROCEEDINGS, TO WHIC H, AS OBSERVED EARLIER, THERE IS NO REFERENCE IN ITS ORDER, AND WHICH WAS INCUMBENT ON IT. THE SAME IS A CRUCIAL FACT, HAVING A DIRECT BEARING IN THE MATTER, I.E., THE VALIDITY OF THE NOTICE U/S. 158BD, AND, ACCORDINGLY, WAS RESPONSIBLE IN NO UNCERTAIN OR INSIGNIFICANT MA NNER IN ITS ARRIVING AT THE CONCLUSION THAT SATISFACTION U/S. 158BD IN THE ASSESSEES CASE WAS NOT AS CONTEMPLATED THERE-UNDER. IT IS SETTLED LAW THAT AN ADJUDICATING AUTHORITY CANNO T BY ITS ACTION OR NON-ACTION PREJUDICE THE CAUSE OF ANY PARTY BEFORE IT. REFERENCE IN THIS CONTEXT MAY ALSO BE MADE TO THE DECISION BY THE APEX COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT [2007] 295 ITR 466 (SC), CLARIFYING THAT AN AUTHORITY PASS ING AN ORDER HAS AN INHERENT POWER TO RECTIFY AND/OR MODIFY THE SAME WHERE IT HAS RESULTE D IN A PREJUDICE TO ANY OF THE PARTIES BEFORE IT. WE, THEREFORE, FIND MERIT IN THE INSTANT MISCELLANE OUS APPLICATION BY THE REVENUE AND, ACCORDINGLY, DIRECT FOR A RECALL OF THE IMPUGN ED ORDER, TO BE HEARD AFRESH AND DECIDED IN ACCORDANCE WITH LAW AFTER HEARING THE PARTIES. F URTHER, THE TRIBUNAL HAVING NOT ADJUDICATED THE ADDITION ON MERITS IN VIEW OF IT HA VING ACCEPTED THE ASSESSEES APPEAL ON A LEGAL GROUND, THE PARTIES WOULD BE AT LIBERTY TO ARGUE THE APPEAL ON THEM AS WELL. WE DECIDE ACCORDINGLY. 3. IN THE RESULT, THE REVENUES APPLICATION IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 30, 20 13 SD/- SD/- (AMIT SHUKLA) (SANJA Y ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER 0+ MUMBAI; 1 DATED : .08.2013 5 M.A. NO. 499/MUM/2009 (B.P. 18.02.2003) DY. CIT VS. PRITHVI PRAKASHAN PVT. LTD. ../ A.K.PATEL ,. PS !'#$% &%'# / COPY OF THE ORDER FORWARDED TO : 1. % #& / THE APPELLANT 2. '(#& / THE RESPONDENT 3. ( % ) / THE CIT(A) 4. / CIT - CONCERNED 5. 4 5 ' 6 , % , 6/ , 0+ / DR, ITAT, MUMBAI 6. 5 89 : + / GUARD FILE / BY ORDER, (/) * (DY./ASSTT. REGISTRAR) , 0+ / ITAT, MUMBAI