MORPARIA & RANKA CONSTRUCTION CO, MUMBAI V. ITO 17(2)(3), MUMBAI

MA 599/MUM/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4075 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 26-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Opportunity of being heard
• Section: 147; 148; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, MUMBAI SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER MA No. 599/MUM/2019 (Arising out of ITA No. 2623/Mum/2017) (ASSESSMENT YEAR: 2006-07) & MA No. 600/MUM/2019 (Arising out of CO No. 03/Mum/2019) (ASSESSMENT YEAR: 2006-07) Income Tax Officer-17(2)(3), Mumbai, Room No. 123B/G, Aayakar Bhavan, M.K. Road, Mumbai - 400020 M/s Morparia & Ranka Construction Co., 307, Gundecha Chambers, Nagindas Master Road, Fort, Mumbai - 400023 [PAN: AABFM0391D] .................. Vs ................... Appellant Respondent Appearances For the Appellant/Department For the Respondent/ Assessee : : Shri C.T. Mathews Shri Hiro Rai Date of conclusion of hearing Date of pronouncement of order : : 04.03.2022 01.06.2022 O R D E R Per Rahul Chaudhary, Judicial Member: 1. The present Miscellaneous Applications for rectification of common order, dated 28.08.2019, passed by the “D” Bench of the Tribunal in Appeal [ITA No. 2623/Mum/2017] and Cross Objection [CO No. 3/Mum/2019] pertaining to Assessment Year 2006-07 has been filed by the Assessee. MA Nos. 599 & 600/Mum/2019 Assessment Year: 2006-07 2 2. The Ld. Authorised Representative for the Assessee submitted that the Assessee had challenged Assessment Order, dated 28.03.2014, passed under Section 147 read with Section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟) in appeal before CIT(A) on the ground of lack of jurisdiction as well as on merits of the addition. The CIT(A) granted relief to the Assessee on merits but did not adjudicate upon grounds raised by the Assessee challenging the reassessment. Accordingly, when the matter was listed before the Tribunal, the Ld. Authorised Representative for the Assessee, placing reliance on the decision of co-ordinate Bench of the Tribunal in the case of ITO vs. M/s Mohanraj Trading & Exchange Pvt. Ltd. (ITA No. 6098/Mum/2016 & CO No. 63/Mum/2018), dated 02.07.2018 pleaded for restoring the matter to the file of CIT(A) for adjudication of technical grounds challenging the reassessment proceedings. The aforesaid plea was accepted by the Tribunal. However, while remanding the matter to CIT(A) it was mistakenly mentioned that “the appeal of the revenue is also restored to the file of Ld. CIT(A) who shall decided in accordance with law after providing adequate opportunity of being heard to the Assessee.” Thus, inadvertently not restricting the remand to the adjudication of only technical issues not previously adjudicated by the CIT(A). 3. The Ld. Departmental Representative relied upon the order dated 28.08.2019 and did not raise any serious objections to oppose the present application. 4. We note that the Ld. Authorised Representative for the Assessee appearing before us had also represented the Assessee in the appellate proceedings on 11.06.2019 when the matters were heard. A perusal of the order, dated 28.08.2019, shows that the Tribunal had accepted the plea advance by the Ld. Authorised Representative of the Assessee for remitting the matter to file of CIT(A) to adjudicate upon the technical grounds which were not adjudicated upon by the CIT(A) by placing reliance on the judgment in the case of ITO vs. M/s MA Nos. 599 & 600/Mum/2019 Assessment Year: 2006-07 3 Mohanraj Trading & Exchange Pvt. Ltd. (supra) wherein the Tribunal had held as under: “10. Examining the present case on the touchstone of above said case law, we find that the order of the ld. CIT(A) here directly falls under the ambit of Hon'ble High Court's order as above. The ld. CIT(A) has decided one issue and has left undecided another issues duly raised before him. Hence, we are of the considered opinion that these issues relating to validity of reopening were duly raised, which have been left undecided by the ld. CIT(A) and need to be remitted to the file of the ld. CIT(A). The ld. CIT(A) is directed to complete his appellate order by deciding on these issues regarding the validity of reopening which were duly raised before him by the assessee. Needless to add the ld. CIT(A) in his order shall also refer to the earlier adjudication by the ld. CIT(A), which we have not adjudicated in view of our remand here. After the order of the ld. CIT(A) is complete, upon adjudication of these issues, both the parties will be at liberty to file necessary appeals as and if necessary. 11. Accordingly, the issues not adjudicated by the ld. Commissioner of Income Tax (Appeals) as raised in the cross objection hereinabove are remitted to the file of the ld. Commissioner of Income Tax (Appeals). The ld. Commissioner of Income Tax (Appeals) shall decide the same afresh after giving the assessee proper opportunity of being heard. In view of our order remitting the aforesaid issues to the file of the ld. Commissioner of Income Tax (Appeals) so as to complete his order, the other issues raised in these appeals are not being adjudicated.” In the case of M/s Mohanraj Trading & Exchange Pvt. Ltd. (supra) the Tribunal had remitted the matter to CIT(A) with directions to complete his appellate order by deciding on the issues regarding the validity of reopening. 5. We note that the Tribunal had in paragraph 6 of order dated 28.08.2019 observed as under: MA Nos. 599 & 600/Mum/2019 Assessment Year: 2006-07 4 “6. We have heard the submissions, perused the orders of the authorities below. On hearing both the parties and perusing the orders of the Authorities below, we find that the Ld. CIT(A) did not dispose off the grounds raised in challenging the reopening of assessment u/s. 148 of the Act, however he was gone into the merits of the addition/disallowance made by the Assessing Officer. Though the Ld.CIT(A) has decided the grounds on merits in favour of the assessee, he disposed off the technical grounds stating that these grounds of appeal are not adjudicated and dismissed for statistical purpose. “7. We observe that the Tribunal in the case of ITO v. M/s Mohanraj Trading & Exchange Pvt. Ltd. (supra) on identical situation restored the matter to the file of the Ld.CIT(A) for adjudicating the ground which were challenged where the reopening of assessment itself challenged. In view of the above, we restore the cross objection of the assessee to the file of the Ld.CIT(A) for adjudication on ground raised on reopening of assessment. Since the outcome of the ground raised by the assessee challenging the reopening has bearing on the other grounds, the appeal of the Revenue is also restored to the file of the Ld.CIT(A) who shall decide in accordance with law after providing adequate opportunity of being heard to the Assessee” (Emphasis Supplied) 6. In view of the above, we find merit in the submission advanced by the Ld. Authorised Representative for the Assessee that in first part of paragraph 7 of the order, dated 28.08.2019, the Tribunal has restored the Cross-Objection of the Assessee to the file of CIT(A) for adjudication on the technical grounds challenging the reassessment. However, in the later part of the aforesaid paragraph the Tribunal has restored the appeal of the Revenue to the file of CIT(A) for adjudication. In our view, this constitutes mistake apparent on record as on perusal of the order, dated 28.08.2019, it is clear that the Tribunal accepted plea of the Ld. Authorised Representative for the Assessee to restore the matter to the file of CIT(A) for completion of MA Nos. 599 & 600/Mum/2019 Assessment Year: 2006-07 5 order by way of adjudication upon technical grounds not adjudicated by CIT(A) by placing reliance upon the decision of the Tribunal in the case of ITO vs. Mohanraj Trading & Exchange (supra) for completion of order by CIT(A). Accordingly, paragraph 7 of the order, dated 28.08.2019, is rectified by replacing “law after providing adequate opportunity of being heard to the Assessee.” with “the earlier adjudication by the CIT(A) on the respective issues” which shall now read as under: “7. We observe that the Tribunal in the case of ITO v. M/s Mohanraj Trading & Exchange Pvt. Ltd. (supra) on identical situation restored the matter to the file of the Ld.CIT(A) for adjudicating the ground which were challenged where the reopening of assessment itself challenged. In view of the above, we restore the cross objection of the assessee to the file of the Ld.CIT(A) for adjudication on ground raised on reopening of assessment. Since the outcome of the ground raised by the assessee challenging the reopening has bearing on the other grounds, the appeal of the Revenue is also restored to the file of the Ld.CIT(A) who shall decide in accordance with the earlier adjudication by the CIT(A) on the respective issues.” 7. In the result, Miscellaneous Applications are allowed. Order pronounced on 01.06.2022. Sd/- Sd/- (Om Prakash Kant) Accountant Member (Rahul Chaudhary) Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 01.06.2022 Alindra, PS MA Nos. 599 & 600/Mum/2019 Assessment Year: 2006-07 6 आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. आिेश न स र/ BY ORDER, सत्य दपि प्रदि //True Copy// उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदिकरण, म ुंबई / ITAT, Mumbai