Skyline builders, Ernakulam V. ACIT, Ernakulam

MA 59/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8946 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 16-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: A S NARAYANANMURTHY
• Keywords: Revision of order
• Section: 143(3); 153A; 80IB; 263

Judgement Text

1 MA NO. 59/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) M.A. 59/COCH/2012 (ARISING OUT OF ITA NO. 223/COCH/2009) (ASSESSMENT YEAR 2003-04) SKYLINE BUILDERS VS A.C.I.T., CENT.CIR.1 RAJAJI ROAD, ERNAKULAM ERNAKULAM PAN : AAMFS8117N (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI A.S. NARAYANANMURTHY RESPONDENT BY : SMT A.S. BINDHU DATE OF HEARING : 24-08-2012 DATE OF PRONOUNCEMENT : 07-09-2012 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER FILED THE PRESENT MISCELLANEOUS APPLI CATION ALLEGING THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DAT ED 30-12-2011. 2. SHRI A.S. NARAYANAMURTHY, THE LD.REPRESENTATIVE FOR THE TAXPAYER SUBMITTED THAT THE ORIGINAL ASSESSMENT WAS COMPLETE D U/S 143(3) ON 27-02-2006 ALLOWING DEDUCTION U/S 80IB OF THE ACT. THEREFORE, THE ADMINISTRATIVE COMMISSIONER SHOULD HAVE TAKEN ACTION U/S 263 ON OR BEFORE 31-03-2008. IN THIS CASE, ADMITTEDLY, THE PROCEEDINGS U/S 263 WAS INITI ATED AFTER 31-03-2008; THEREFORE, IT IS BARRED BY LIMITATION. THIS TRIBUN AL WHILE CONSIDERING THE ACTION OF 2 MA NO. 59/COCH/2012 THE VERY SAME COMMISSIONER OF INCOME-TAX FOUND THAT THE ORDER OF THE COMMISSIONER OF INCOME-TAX WAS BARRED BY LIMITATION. REFERRING TO PARAGRAPH 13 OF THE ORDER OF THE TRIBUNAL, THE LD.REPRESENTATIVE SUBMITTED THAT THOUGH THE TAXPAYER HAS MADE SPECIFIC PLEA BEFORE THE TRIBUNAL WITH REGARD TO THE LIMITATION, THIS TRIBUNAL HAS NOT RECORDED ANY FINDING ON THE P LEA OF LIMITATION. THIS TRIBUNAL PROCEEDED TO DISPOSE OF THE APPEAL ON THE GROUND TH AT THE TAXPAYERS CLAIM ON MERIT WAS NOT SUPPORTED BY BOOKS OF ACCOUNT. REFERR ING TO THE VERY SAME ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2002-03 MORE PARTICULARLY PARAGRAPH 10.2 THE LD. REPRESENTATIVE POINTED OUT THAT IN RESPECT OF VERY SAME ALLEGATION FOR THE ASSESSMENT YEAR 2002-03 THIS TRIBUNAL FOUND THAT THE ORDER OF THE ADMINISTRATIVE COMMISSIONER U/S 263 WAS NOT WARRANTED SINCE THE DE DUCTION U/S 80IB WAS SUBJECT MATTER OF ASSESSMENT AT THE FIRST INSTANCE EVEN BEFORE THE SEARCH. ACCORDING TO THE LD.REPRESENTATIVE, THIS FINDING OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2002-03 IS EQUALLY APPLICABLE FOR THE ASSESSMEN T YEAR 2003-04 ALSO. 3. WE HEARD SMT. A.S. BINDHU, THE LD.DR ALSO. THE LD.DR POINTED OUT THAT THE ISSUE OF LIMITATION WAS NOT RAISED BY THE TAXPAYER IN THE GROUNDS OF APPEAL. THEREFORE, IT CANNOT BE CONSIDERED AT THIS STAGE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE CAREFULLY GONE THROUG H THE ORDER OF THIS TRIBUNAL DATED 30-12-2011. FOR THE ASSESSMENT YEAR 2002-03 THE ISSUE ON THE SAME SET OF FACTS WAS CONSIDERED BY THIS TRIBUNAL AT PARAGRAPH 10.2 OF ITS ORDER. THIS TRIBUNAL AFTER CONSIDERING THE MATERIALS AVAILABLE ON RECORD FOUND THAT DEDUCTION U/S 80IB HAS BEEN SUBJECT MATTER OF ASSESSMENT AT THE FIRST INSTANCE. THEREFORE, THE PROVISIONS OF SECTION 153A WOULD NOT OPERATE TO EXT END THE TIME LIMIT. ACCORDINGLY, IT WAS FOUND THAT THE COMMISSIONERS I NTERVENTION U/S 263 OF THE ACT 3 MA NO. 59/COCH/2012 WAS NOT SUSTAINABLE IN LAW. FOR THE ASSESSMENT YEA R 2003-04 THE TAXPAYER HAS RAISED THE VERY SAME ISSUE. HOWEVER, THIS TRIBUNAL BY MISTAKE OMITTED TO CONSIDER THE ISSUE OF LIMITATION AND PROCEEDED TO D ISPOSE OF THE APPEAL ON MERIT ON THE GROUND THAT THE TAXPAYER HAS NOT MAINTAINED ANY SEPARATE BOOKS OF ACCOUNT. EVEN THOUGH THE PLEA OF LIMITATION WAS RA ISED BY THE TAXPAYER AS IS EVIDENT FROM PARAGRAPH 13 OF THE TRIBUNALS ORDER, NO FINDING WAS RECORDED BY THIS TRIBUNAL. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THERE IS AN ERROR WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME-T AX ACT. THE ONLY CONTENTION OF THE LD.DR IS THAT THE PLEA OF LIMITATION WAS NOT RAISED BY THE TAXPAYER IN THE ORIGINAL GROUNDS. IT IS WELL SETTLED PRINCIPLES OF LAW THAT LIMITATION HAS TO BE SEEN BY THE COURTS / TRIBUNAL. IT IS NOT NECESSARY THAT SOMEONE SHOULD BRING IT TO THE NOTICE OF THE TRIBUNAL. THE MOMENT THE PERIOD OF L IMITATION PROVIDED UNDER THE STATUTE EXPIRED, THE REVISIONAL AUTHORITY LOOSES HI S JURISDICTION. THEREFORE, MERELY BECAUSE SUCH A GROUND WAS NOT RAISED SPECIALLY THAT WOULD NOT PRECLUDE THE TAXPAYER TO RAISE THE SAME BEFORE THE TRIBUNAL. IN FACT, FOR THE ASSESSMENT YEAR 2002-03 A SIMILAR GROUND WAS RAISED BY THE REVENUE W HICH WAS CONSIDERED BY THIS TRIBUNAL AT PARAGRAPH 10.3 OF ITS ORDER. REFERRING TO RULE 11 OF THE INCOME-TAX APPELLATE TRIBUNAL RULES, 1963, THIS TRIBUNAL RECOR DED A FINDING THAT IT IS OPEN TO THE TAXPAYER TO RAISE GROUNDS WHICH ARE NOT SPECIFI CALLY SET FORTH IN THE MEMORANDUM OF APPEAL. 5. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY JUSTIFI CATION IN THE CONTENTION OF THE LD.DR. ACCORDINGLY THE ORDERS OF THE TRIBUNAL DATED 30-12-2011 IS RECTIFIED AS FOLLOWS: 6. PARAGRAPHS 14 AND 15 IN THE TRIBUNAL ORDER DATED 30-12-2011 ARE DELETED. INSTEAD, THE FOLLOWING SHALL BE INSERTED AS PARAGRA PHS 14 & 15: 4 MA NO. 59/COCH/2012 14. AFTER HEARING BOTH SIDES, THIS TRIBUNAL FINDS THAT DEDUCTION U/S 80IB WAS SUBJECT MATTER OF ASSESSMENT IN THE OR IGINAL ASSESSMENT EVEN BEFORE THE SEARCH. THEREFORE, THE CONCLUDED ASSESSMENT CANNOT BE REOPENED U/S 153A OF THE ACT. ONCE THE ASSESSMENT IS COMPLETED, SEARCH U/S 153A WILL NOT E XTEND THE PERIOD LIMITATION IN SECTION 263 TO REVISE THE ORDE R OF ORIGINAL ASSESSMENT. THEREFORE, THE ORIGINAL ASSESSMENT COM PLETED ON 27- 02-2006 BECOMES FINAL WHICH CANNOT BE REVISED AFTER THE EXPIRY OF TWO YEARS. THEREFORE, AS FOUND BY THIS TRIBUNAL FO R THE ASSESSMENT YEAR 2002-03, THE COMMISSIONERS INTERFERENCE U/S 26 3 IS NOT SUSTAINABLE IN LAW. 15. IN THE RESULT, TAXPAYERS APPEAL FOR THE ASSESS MENT YEAR 2003-04 IN ITA NO.223/COCH/2009 IS ALLOWED. THE ORDER OF THE TRIBUNAL IS RECTIFIED ACCORDINGLY. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 TH SEPTEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 07 TH SEPTEMBER, 2012 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH