Pr. CIT- 8, New Delhi V. Sri Balaji Forgings (P) Ltd., New Delhi

MA 625/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3834 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 18-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Tax effect; Reassessment proceedings
• Section: 254(2); 22; 147; 263

Judgement Text

PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH FRIDAY : NEW DELHI ] BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) MISC. APP. NO. 625/DEL/2019. [ IN ITA. NO. 3216/DEL/2017 ] (ASSESSMENT YEAR : 2009-10) PR. CIT, DELHI 8, NEW DELHI. VS. M/S. SRI BALAJI FORGINGS PVT. LTD., H. NO. 5001, AHATA KIDARA, PAHARI DHEERAJ, NEW DELHI 110 006. PAN: AAACS1255L (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI LALIT MOHAN , C. A. DEPARTMENT BY: SHRI UMESH TAKYAR , SR. D. R.; DATE OF HEARING : 24 /0 9 /2021 DATE OF PRONOUNCEMENT : 1 1 / 1 0/2021 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THIS MISC. APPLICATION IS FILED BY THE LD. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 24 (1), NEW DELHI, IN ITA. NO. 3216/DEL/2017 FOR ASSESSMENT YEAR 2009-10. 2. THE MISCELLANEOUS APPLICATION IS AS UNDER:- MISCELLANEOUS APPLICATION IN THE CASE OF M/S SRI BALAJI FORGINGS PVT LTD FOR AY 2009-10 IN ITA NO.3216/DEL/2017 DATED 09/01/2019 IT IS MOST RESPECTFULLY SUBMITTED AS UNDER:- 1. WHETHER THE ITAT HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ORDER PASSED U/S 263 IS HAD IN LAW WHEN SAME BENCH OF ITAT VIDE ITS COMBINED ORDER DATED 14.01.20)9 IN ITA NO. 6905/DEL/2017. ITA NO. 2182/DEL/2017, ITA NO.2544/DEL/2017 PAGE | 2 AND ITA NO.2841 /DEL/201 7 ON IDENTICAL FACTS IN THE S.K. JAIN GROUP OF CASES HAS HELD THAT THERE WAS NO INFIRMITY IN THE ORDER OF THE PCIT-08 AND THE CORRECTLY INVOKED THE PROVISIONS OF SECTION 263 AND DISMISSED THE APPEAL OF THE ASSESSEE. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT IN HOLDING THAT THE SECOND REASSESSMENT PROCEEDINGS THAT WAS DROPPED IS A VALID ORDER AND MERGER WITH THE FIRST REASSESSMENT ORDER. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT IN HOLDING THAT REVISION WAS BAD IN LAW AS IT WAS INITIATED ON THE BASIS OF FIRST REASSESSMENT ORDER.' 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE TRIBUNAL W-AS CORRECT IN SETTING ASIDE THE REVISION ORDER U/S 26.3 ON THE GROUND OF INCORRECT ASSUMPTION OF JURISDICTION.' 5. THE APPELLANT BEG THAT THE ORDER MAY BE RECALLED AND THE APPEAL MAY BE DECIDED. PRAYER IN VIEW OF THE SUBMISSIONS MADE HEREINABOVE, IT IS RESPECTFULLY PRAYED THAT: A. THAT THE TRIBUNAL MAY BE PLEASED TO SUITABLY AMEND ITS ORDER TO RECTIFY THE AFORESAID MISTAKE AND REMOVE THE CONTRADICTION IN THE ORDER. B. THAT THE HON'BLE ITAT MAY BE PLEASED TO PASS A FRESH ORDER AND AFTER RECALLING ITS EARLIER ORDER. 3. THE LD. DR REFERRED TO THE CENTRAL SCRUTINY REPORT DATED 22 ND MARCH, 2019. 4. THE LD. AR SUBMITTED THAT THERE IS NO ERROR IN THE ORDER OF THE ITAT AND, THEREFORE, THIS MISC. APPLICATION DESERVES TO BE DISMISSED. 5. WE HAVE CAREFULLY PERUSED THE CONTENTS OF THE MISC. APPLICATION. THE AUTHORIZATION ISSUED UNDER SECTION 254(2) OF THE ACT BY THE PR. CIT IN THIS APPEAL IS AS UNDER :- F. NO. PR.CLT-08/JUDL./ITAT/505/2019-20/975 DATED: 15-7/2019 SUB.:- AUTHORIZATION U/S 254(2) OF THE INCOME-TAX ACT, 1961, FOR FILING MISCELLANEOUS APPLICATION TO THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI IN THE CASE OF M/S SRI BALAJI FORGINGS (P) LTD., H.NO. 5001, AHATA KIDARA, PAHARI DHEERAJ, NEW DELHI-110006, IN ITAT NO. 3216/DEL/2017 FOR AY 2009-10 DATED : 09.01.2019 - REG. THE ASSTT. COMMISSIONER INCOME TAX OFFICER, CIRCLE-24(1), NEW DELHI IS HEREBY DIRECTED TO FILE A MISCELLANEOUS APPLICATION AGAINST THE ORDER DATED 09.01.2019 OF THE ITAT IN ITA NO. 3216/DEL/2017 IN THE CASE OF M/S SRI BALAJI FORGINGS (P) LTD., H.NO. 5001, AHATA KIDARA, PAHARI DHEERAJ, NEW DELHI-110006 FOR AY 2009-10 BEFORE THE INCOME-TAX APPELLATE TRIBUNAL, NEW DELHI ON THE FOLLOWING GROUND(S):- PAGE | 3 (1) WHETHER THE ITAT HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ORDER PASSED U/S 263 IS BAD IN LAW WHEN SAME BENCH OF ITAT VIDE ITS COMBINED ORDER DATED 14.01.2019 IN ITA NO. 6905/DEL/2017, ITA NO. 2182/DEL/2017, ITA NO. 2544/DEL/2017 AND ITA NO. 2841/DEL/2017 ON IDENTICAL FACTS IN THE S.K. JAIN GROUP OF CASES HAS HELD THAT THERE WAS NO INFIRMITY IN THE ORDER OF THE PCIT-08 AND HE CORRECTLY INVOKED THE PROVISIONS OF SECTION 263 AND DISMISSED THE APPEAL OF THE ASSESSEE. (2) WHETHER ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT IN HOLDING THAT THE SECOND REASSESSMENT PROCEEDING THAT WAS DROPPED IS A VALID ORDER AND MERGER WITH THE FIRST REASSESSMENT ORDER'. (3) WHETHER ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT IN HOLDING THAT REVISION WAS BAD IN LAW AS IT WAS INITIATED ON THE BASIS OF FIRST REASSESSMENT ORDER. (4) WHETHER ON THE FACTS AND CIRCUMSTANCE OF THE CASE, THE TRIBUNAL WAS CORRECT IN SETTING ASIDE THE REVISION ORDER U/S 263 ON THE GROUND OF INCORRECT ASSUMPTION OF JURISDICTION. (5) THE APPELLANT BEG THAT THE ORDER MAY BE RECALLED AND THE APPEAL MAY BE DECIDED. 5. ON CAREFUL READING OF THE ABOVE ANNEXURE, WE FIND THAT IT HAS NOT BEEN SHOWN THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE CO-ORDINATE BENCH BUT IT IS CHALLENGING THE CORRECTNESS OF THE DECISION REACHED BY THE CO-ORDINATE BENCH. THE GROUNDS OF THE MISC. APPLICATION ARE ALSO IDENTICALLY COPIED BY THE LD. ASSESSING OFFICER FROM THE ABOVE AUTHORIZATION. 6. NOW WE COME TO THE CENTRAL SCRUTINY REPORT WHEREAS PER NOTING DATED 22 ND MARCH, 2019 THE APPEAL AGAINST THE ORDER OF THE CO-ORDINATE BENCH HAS BEEN RECOMMENDEDBEFORE HONOURABLE HIGH COURT. THE NOTING OF THE ADDL. COMMISSIONER OF INCOME TAX, RANGE 24, NEW DELHI, HAS ALSO SOUGHT DIRECTION FROM THE PR. CIT ON 26 TH MARCH, 2019 FOR NECESSARY INSTRUCTIONS. ON 7.05.2019 THE PR. CIT HAS RECOMMENDED TO FILE FURTHER APPEAL BEFORE THE HONBLE HIGH COURT. FURTHER, ON 17.05.2019 THE PR. COMMISSIONER DIRECTED THE ASSESSING OFFICER TO EXPEDITE THE FILING OF THE APPEAL. SUBSEQUENTLY ON 3.07.2019 IT WAS FOUND BY THE ASSESSING OFFICER THAT IT IS A LOW TAX EFFECT APPEAL AND LD AO CANNOT APPROACH HONOURABLE HIGH COURT. SAME IS ALSO THE FINDING OF THE ADDL. COMMISSIONER OF INCOME TAX AS WELL AS THE PR. COMMISSIONER. THEREFORE, ON 3.07.2019 THE PCIT, NEW DELHI, DIRECTED TO FILE THIS MISC. APPLICATION. THE REASONS GIVEN BY THE ASSESSING OFFICER FOR FILING THIS MISC. APPLICATION ON 12 TH JULY, 2019, WHICH WAS APPROVED BY THE PCIT PAGE | 4 ON 15 TH JULY, 2019 CLEARLY SAYS THAT THE TRIBUNAL HAS DECIDED THE APPEAL IN SIMILAR CASES IN FAVOUR OF REVENUE, HOWEVER, THIS APPEAL IS DECIDED AGAINST THE REVENUE. 7. ON THE ABOVE OBSERVATION OF THE PR. COMMISSIONER OF INCOME TAX, WE DIRECTED THE LD. DR TO SHOW US THE FACT THAT WHETHER THE FACTS OF THE CASE IN ITA. NO. 3216/DEL/2017 AS WELL AS IN ITA. NOS. 6905, 2182, 2544 AND 2841/DEL/2017 DATED 14.01.2019 ARE IDENTICAL OR NOT. EVEN IN THE MISC. APPLICATION ONLY THE ORDER IN ITA. NO. 3216/DEL/2017 WAS PLACED ON RECORD. HOWEVER, WE ON OUR OWN HAS EXAMINED THE ISSUE AND FIND THAT IN ITA. NO. 3216/DEL/2017 THE ASSESSEE HAS CHALLENGED THE INITIATION OF RE-OPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE ACT, WHICH WAS HELD BY THE CO- ORDINATE BENCH TO BE NOT PROPER AND, THEREFORE, CONSEQUENT ORDER PASSED UNDER SECTION 263 OF THE ACT WAS QUASHED. THERE WAS NO SUCH FACT IN OTHER APPEALS. IN THOSE APPEALS ONLY ORDER U/S 263 OF THE ACT WAS CHALLENGED THEREFORE, THAT ISSUE WAS DECIDED IN FAVOUR OF THE REVENUE. WE FIND THAT THERE IS A STRIKING DIFFERENCE BETWEEN BOTH THE ORDERS CITED BY THE REVENUE. EVEN OTHERWISE WE FIND THAT REVENUE HAS FAILED TO POINT OUT ANY MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE COORDINATE BENCH. MERELY BECAUSE APPEAL COULD NOT BE FILED BEFORE THE HONBLE HIGH COURT, DUE TO LOW TAX EFFECT, IT DOES NOT GIVE AUTOMATIC RIGHT TO THE REVENUE TO FILE MISC. APPLICATION BEFORE US WITHOUT POINTING OUT ANY ERROR IN THE ORDER. 8. IN THE RESULT THE MISC. APPLICATION DOES NOT DESERVE ANY ATTENTION AND HENCE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON : 11/10/2021. SD/- SD/- ( KUL BHARAT ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 11/10/2021. *MEHTA* COPY FORWARDED TO : 1. APPLICANT; 2. RESPONDENT PAGE | 5 3. CIT 4. CIT (APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI D ATE OF DICTATION 1 1 . 1 0 . 2 0 2 1 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 1 1 . 1 0 . 2 0 2 1 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 1 1 . 1 0 . 2 0 2 1 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/ PS 1 1 . 1 0 . 2 0 2 1 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 1 1 . 1 0 . 2 0 2 1 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 1 1 . 1 0 . 2 0 2 1 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 1 . 1 0 . 2 0 2 1 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 1 . 1 0 . 2 0 2 1 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER