The Dy.DIT.,(Intl.Taxn.)- II, Ahmedabad V. M/s. Niko Resources Ltd., Baroda

MA 63/AHD/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6998 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 23-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANTOSH KARNANI
• Assessee Lawyers: VIPSI T PATEL; YASH RAJPUROHIT
• Keywords: Reopening of assessment; Depreciation; Reassessment proceedings
• Section: 143(3); 148

Judgement Text

, MH MHMH MH IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD L LL LOZJH OZJH OZJH OZJH OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW;] U;KF;D LNL; ] U;KF;D LNL; ] U;KF;D LNL; ] U;KF;D LNL; DS LE{KA DS LE{KA DS LE{KA DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER MISC. APPLICATION NO.63/AHD/2018 (ARISING OUT OF IT(SS)A NO.2400/AHD/2014) ( / ASSESSMENT YEAR : 2006-07) THE DCIT, INTERNATIONAL TAXATION, 2 ND FLOOR, OLD GEB BUILDING, RACE COURSE CIRCLE, BARODA. / VS. M/S. NIKO RESOURCES LTD., 6 TH FLOOR, LANDMARK, RACE COURSE CIRCLE, VADODARA 390 007 ./ ./ PAN/GIR NO. : AAACN 7060 L ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SANTOSH KARNANI, SR. D.R. / RESPONDENT BY : SHRI VIPSI T. PATEL & YASH RAJPUROHIT, A.R. / DATE OF HEARING 20/07/2018 !'# / DATE OF PRONOUNCEMENT 20/08/2018 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE RE VENUE IS SUBMITTING THAT THERE IS A MISTAKE IN ORDER OF HONBLE ITAT, W HICH IS APPARENT FROM RECORD AND ACCORDINGLY PRAYS TO RECTIFY THE SAME. 2. THE REVENUE BEFORE US SUBMITTED AS UNDER: 1. THE APPLICANT IS THE ORIGINAL APPELLANT AND THE RESPONDENT IS THE ORIGINAL RESPONDENT IN ITA NO. 2399 & 2400/AHD/2014 & CO MA NO.63/AHD/2018 (ARISIN G OUT OF IT(SS)A NO.2400/AHD/2014) DCIT VS. M/S. NIKO RESOURCES LTD. ASST.YEAR 2006-07 - 2 - 279 & 280/AND/2017 FOR A.Y. 2005-06 AND 2006-07 ORD ER DATED 16.08.2017. THE ITA NO.2399/AHD/2014 AND CO. 279/AH D/2014 WERE THE APPEAL FILED BY THE REVENUE AND CROSS OBJE CTION OF THE RESPONDENT AGAINST THE ORDER OF CIT(A), GANDHINAGAR DATED 12/06/2014 FOR A.Y.2005-06 AND ITA NO.2400/AHD/2014 AND CO NO.280/AHD/201 4 WERE THE APPEAL FILE BY THE REVENU E AND CROSS OBJECTION OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), GANDHINAGAR DATED 23/06/2014 FOR A.Y.2006-07. A.Y 2005-06: 2. THE A.YS 2005-06 AND 2006-07 WERE REOPENED BY AO BY ISSUING NOTICE U/S.148 OF THE I.T. ACT. THE ASSESSEE HAS CH ALLENGED THE REOPENING OF THE ASSESSMENT FOR A.Y. 2005-06 BY FIL ING THE WRIT PETITION BEFORE THE HON'BLE GUJARAT HIGH COURT. THE HON'BLE GUJARAT HIGH COURT HAS QUASHED THE PROCEEDINGS INIT IATED BY THE AO FOR A.Y 2005-06. THE HON'BLE ITAT BY RELYING ON THE ORDER OF HON'BLE GUJARAT HIGH COURT IN THE ASSESSEE'S OWN CA SE HELD THAT AS THE REOPENING OF THE ASSESSMENTS HAS BEEN QUASHE D BY THE GUJARAT HIGH COURT IN THE ASSESSEE'S OWN CASE, THE ASSESSMENT ORDER BECOMES NON-EST AND ACCORDINGLY ALLOWED THE C ROSS OBJECTION FILED BY THE ASSESSEE HOLDING THE APPEAL FILED BY THE REVENUE AS INFRUCTUOUS. A.Y 2006-07: 3. THE ASSESSMENT ORDER FOR A.Y. 2006-07 WAS PASSED BY THE AO U/S 144(1) R.W.S. 143(3) R.W.S. 147 OF THE ACT ON 06.02 .2014 AND COMPUTED THE INCOME OF THE ASSESSEE AS UNDER: TOTAL INCOME FOR A.Y. 2006-07 AS PER ORDER U/S 143(3) DT. 07.09.2009 RS.178,69,97,360/- ADDITION: EXCESS DEPRECIATION CLAIMED RS.3,99,31,192/- TOTAL INCOME FOR A.Y. 2006- 07(TO BE TAXED @ 40%) RS.182,69,28,552/- 4. THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CI T(A). THE LD. CIT(A) VIDE ORDER NO. CIT(A) GNR/84/84/2013-14 DATE D 12.6.2014 DECIDED THE APPEAL OF THE ASSESSEE PARTLY . THE CIT(A) MA NO.63/AHD/2018 (ARISIN G OUT OF IT(SS)A NO.2400/AHD/2014) DCIT VS. M/S. NIKO RESOURCES LTD. ASST.YEAR 2006-07 - 3 - HAS ALLOWED THE APPEAL OF THE ASSESSEE RELYING ON T HE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF SCIENTIFIC EN GINEERING HOUSE PVT. LTD. VS CIT (157 ITR 86) HOLDING THE OFF SHORE PLATFORM TO BE PLANT AS ITS AIDS IN PRODUCING AND P ROCESSING PETROLEUM PRODUCTS. IT IS NOT USED AS BUILDING FOR HABITATION, SHELTER, STORAGE, TRADE MANUFACTURE, RELIGION, BUSI NESS, EDUCATION AND THE LIKE. 5. THE REVENUE, AGGRIEVED BY THE ACTION OF THE LD. CIT(A) ON THE GROUND THAT THE LD.CIT(A) HAS ERRED IN LAW AND ON F ACTS THAT AN OFFSHORE PLATFORM WAS LIABLE TO BE CATEGORIZED AS A PLANT AND NOT AS A BUILDING FOR DEPRECIATION PURPOSE U/S. 34(3) R WS 32 OF THE IT. ACT, FILED APPEAL BEFORE THE HON'BLE ITAT VIDE APPEAL IN ITA NO. 2400/AHD/2014. THE ASSESSEE COMPANY ALSO FILED CROSS OBJECTION NO. 280/AHD/2014 AGAINST THE DEPARTMENTAL APPEAL. 6. THE HON'BLE ITAT HAS PASSED A COMBINED ORDER F OR A.Y.2005-06 & 2006-07 TOGETHER AND HAS ALLOWED THE CROSS OBJECT IONS FILED BY THE ASSESSEE AND TREATED THE APPEAL FILED BY THE RE VENUE AS INFRUCTUOUS ON THE GROUND THAT SINCE THE REOPENING OF THE ASSESSEE HAS BEEN QUASHED BY THE HONBLE GUJARAT HI GH COURT IN THE ASSESSEES OWN CASE. THE ASSESSMENT ORDER PASSE D THEREAFTER WOULD BE NON-SET. 7. IN THIS CONNECTION IT IS MOST HUMBLY SUBMI TTED THAT IN A.Y. 2006- 07, THE REOPENING ASSESSMENT U/S 147 OF THE I.T. AC T FOR A.Y.2006-07 WAS NEVER CHALLENGED BY THE WRIT PETITI ON BEFORE THE HON'BLE GUJART HIGH COURT. IN FACT THE RESPONDE NT HAD NOT CHALLENGED THE REOPENING PROCESSING FOR A.Y.2006-07 BEFORE THE HIGH COURT AT ALL. HOWEVER, THE HON'BLE ITAT HAS DE CIDED THE APPEAL ALONGWITH THE APPEAL FILED FOR A.Y.2005-06 B Y COMBINED ORDER RELYING ON THE DECISION OF THE HON'BLE HIGH C OURT IN THE ASSESSEE'S OWN CASE OF GUJARAT SCA NO.7307/2013 DOT ED 25/04/2014 CONSIDERING THAT GRIEVANCE OF IMPUGNED A PPEALS ORE COMMON FOR BOTH YEARS. IN A.Y.2005-06 REOPENING OF ASSESSMENT U/S 148 AND THE VALIDITY OF NOTICE U/S 147 OF THE I .T. ACT WAS CHALLENGED AND THE HON'BLE HIGH COURT QUASHED THE R E- ASSESSMENT PROCEEDINGS. HOWEVER, IN A.Y.2006-07, RE OPENING U/S 148 WAS NEVER CHALLENGED 8. THEREFORE HON'BLE ITAT HAS COMPLETELY ERRE D ON FACTS IN HOLDING THAT THE HON'BLE GUJARAT HIGH COURT HAS QUASHED THE MA NO.63/AHD/2018 (ARISIN G OUT OF IT(SS)A NO.2400/AHD/2014) DCIT VS. M/S. NIKO RESOURCES LTD. ASST.YEAR 2006-07 - 4 - REASSESSMENT PROCEEDINGS IN A.Y 2006-07 ALSO. THERE IS NO JUDGEMENT OF HON'BLE HIGH COURT FOR A.Y. 2006-07 IN THE CASE OF THE ASSESSEE. THE HON'BLE ITAT IS ERRED IN APPLYING THE DECISION OF THE FACTS OF THE CASE OF THE A.Y.2005-06 WHICH I S NOT CORRECT. SINCE ORDER OF ITAT IS BASED ON THE WRONG FACTS OF THE CASE, THE ORDER OF ITAT IS PERVERSE TO THAT EXTENT. THE ASSES SMENT ORDER PASSED THEREAFTER WOULD BE NON-EST. IT IS HUMBLY SU BMITTED THAT UNDER S. 254(2), TRIBUNAL IS EMPOWERED TO RECTIFY T HE MISTAKE WHICH IS APPARENT FROM RECORD. 9. IN THE PREMISES AFORESAID, APPLICANT MOST HUMBL Y PRAYS TO THIS HONBLE APPELLATE TRIBUNAL THAT M.A. FILED BY THE A PPELLANT BE ALLOWED AND BE PLEASED TO GIVE FINDINGS ON POINTS W HICH ARE RAISED AND ARGUED IN THE APPEAL FILED BY REVENUE AN D BE PLEASED TO PASS ORDER IN ACCORDANCE WITH LAW AND AFTER GIVI NG OPPORTUNITY OF HEARING TO THE APPELLANT. 10. FOR THIS ACT OF KINDNESS, THE APPLICANT SHALL FOREVER PRAY AND REMAIN GREATEFUL. 3. ON THE OTHER HAND, THE COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE HONBLE GUJARAT HIGH COURT IN OWN CASE OF THE ASSES SEE HAS QUASHED THE REOPENING OF THE ASSESSMENT PERTAINING TO THE A.Y. 2005-06 IN THE IDENTICAL FACTS AND CIRCUMSTANCES. THEREFORE, THE H ONBLE ITAT IN ITS ORDER FOR THE YEAR UNDER CONSIDERATION HAS RIGHTLY DISMISSED THE APPEAL OF THE REVENUE AFTER HAVING RELIANCE ON THE ORDER OF H ONBLE GUJARAT HIGH COURT IN THE OWN CASE OF THE ASSESSEE IN SPECIAL CI VIL APPLICATION NO.7307 OF 2013. THE LD AR FOR THE ASSESSEE IN SUPPORT HIS CONTENTIO N DREW OUR ATTENTION ON PAGE 409 OF THE PAPER BOOK, WHERE THE REASON FOR REOPENING OF THE CASE U/S 147 OF THE ACT WERE PLACED. ACCORDINGLY, T HE LD AR SUBMITTED THAT THE PRINCIPLES LAID DOWN BY THE HONBLE GUJARA T HIGH COURT IN THE OWN CASE OF THE ASSESSEE PERTAINING TO THE A.Y. 200 5-06 WILL BE APPLIED MA NO.63/AHD/2018 (ARISIN G OUT OF IT(SS)A NO.2400/AHD/2014) DCIT VS. M/S. NIKO RESOURCES LTD. ASST.YEAR 2006-07 - 5 - FOR THE YEAR UNDER CONSIDERATION IN FULL STRENGTH. THE LD. AR VEHEMENTLY SUPPORTED THE ORDER OF LD ITAT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS A FACT ON RECORD THAT RE OPENING U/S 147 OF THE ACT WAS CHALLENGED BEFORE THE HONBLE HIGH COURT BY THE ASSESSEE FOR A.Y. 2005-06 ONLY WHICH WAS SUBSEQUENTLY QUASHED. ON PERUSAL OF THE REASONS RECORDED FOR THE INITIATI ON OF PROCEEDINGS U/S 147 OF THE ACT FOR THE YEAR UNDER CONSIDERATION PLA CED ON PAGE 409 OF THE PAPER BOOK, WE NOTE THAT THE REASONS FOR THE REOPEN ING WERE IDENTICAL TO THE REASONS RECORDED BY THE REVENUE FOR THE REOPENI NG PERTAINING TO THE A.Y. 2005-06. THEREFORE, THERE IS NO AMBIGUITY THAT THE REOPENING WAS MADE ON THE SAME SET OF REASONS. THE HONBLE GUJARA T HIGH COURT HAD QUASHED THE PROCEEDINGS INITIATED U/S 147 OF THE AC T FOR THE A.Y. 2005-06 THEREFORE, WE ARE OF THE VIEW THAT THE PRINCIPLES / FINDINGS OF THE JUDGMENT OF HONBLE HIGH COURT IN THE CASE OF PERTAINING TO THE A.Y. 2005-06 WILL BE APPLICABLE TO THE YEAR UNDER CONSIDERATION WITH FULL STRENGTH. ON PERUSAL OF THE HONBLE ITAT ORDER FOR THE YEAR U NDER CONSIDERATION, WE FIND THAT REOPENING WAS HELD INVALID AFTER HAVIN G RELIANCE ON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT PERTAINING T O THE A.Y 2005-06. WE FURTHER NOTE THAT HONBLE ITAT HAS CLEARLY RECOR DED THAT THE GRIEVANCE OF THE ASSESSEE IN THE APPEAL ARE COMMON PERTAINING TO THE A.Y. 2005-06 AND 2006-07. THEREFORE, THE HONBLE IT AT FOR THE SAKE OF BREVITY PASSED ONE CONSOLIDATED ORDER. HENCE, WE AR E OF THE VIEW THAT THE DECISION TAKEN BY THE HONBLE ITAT TO THE EFFECT OF REOPENING U/S 147 OF MA NO.63/AHD/2018 (ARISIN G OUT OF IT(SS)A NO.2400/AHD/2014) DCIT VS. M/S. NIKO RESOURCES LTD. ASST.YEAR 2006-07 - 6 - THE ACT WAS MADE WITH CONCISE GROUND. ACCORDINGLY T HE ORDER OF THE TRIBUNAL WAS CONSCIOUS DECISION AND AFTER APPLICATI ON OF MIND. THUS, WE HOLD THAT THERE WAS NO MISTAKE APPARENT ON RECORD A S SPECIFIED U/S 254(2) OF THE ACT. ACCORDINGLY, WE HOLD THAT NO MISTAKE HA S BEEN COMMITTED BY THE HONBLE ITAT IN ITA NO. 2400/AHD/2014 VIDE ORDE R DATED 16.08.2017. THUS, GROUND OF APPEAL RAISED BY THE RE VENUE IN MISC. APPLICATION IS DISMISSED. 5. IN VIEW OF ABOVE, MISC. APPLICATION FILED BY TH E REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 20/08/2018 \ SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 20/08/2018 PRITI YADAV, SR.PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A) 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD. 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD