M/s Kansur Developers India Private Limited, Bengaluru V. The Deputy Commissioner Of Income Tax, Central Circle-1(4), Bengaluru

MA 67/BANG/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4493 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 04-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE-PRESIDENT AND SHRI B. R. BASKARAN, ACCOUNTANT MEMBER MP NOS.67 AND 68/BANG/2021 (IN ITA NOS.1441 AND 1442/BANG/2018, C.O. NO.103 AND 104 /BANG/2018 ) ASSESSME NT YEAR S : 20 0 9 - 1 0, 2012 - 13 M/S. KANSUR DEVELOPERS INDIA (P) LTD., NO.53/8, NEAR RAJA KALUVE, OPP. DC HALLI PETRO BUNK, BANNERGHATTA ROAD, DEVARACHIKKANAHALLI, BENGALURU 560 076. PAN : AACCK 9866 F . VS. DCIT, CENTRAL CIRCLE 1(4), BENGALURU. APPLICANT BY : SHRI. CUDDAPAH RAMESH , C A RESPONDENT BY : NONE DATE OF HEARING : 01 . 1 0 .20 21 DATE OF PRONOUNCEMENT : 01 . 1 0 .20 2 1 O R D E R PER N.V. VASUDEVAN, VICE-PRESIDENT: THESE ARE MISCELLANEOUS PETITIONS (MPS) FILED BY THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) PRAYING FOR RECTIFICATION OF THE ORDER DATED 22.2.2021 OF THE TRIBUNAL PASSED IN THE AFORESAID APPEALS AND CROSS OBJECTIONS. 2. THE ASSESSEE HAS FILED THE AFORESAID MPS PRAYING THAT THE ORDER DATED 22.02.2021 ALLOWING THE APPEALS OF THE DEPARTMENT FOR STATISTICAL PURPOSES AND DISMISSING THE C.OS AS INFRUCTUOUS SHOULD BE RECALLED. 3. THE FACTUAL DETAILS UNDER WHICH THE ABOVE MP HAS BEEN FILED BY THE ASSESSEE ARE THAT IN A GROUP OF ABOUT 83 APPEALS, OF WHICH THE APPEAL OF THE ASSESSEE WAS ALSO ONE OF THE APPEALS, THE REVENUE HAS REQUESTED BY WAY OF AN ADDITIONAL GROUND THAT MP NOS.67 AND 68/BANG/2021 (IN ITA NOS.1441 AND 1442/BANG/2018, C.O. NO.103 AND 104/BANG/2018) PAGE 2 OF 5 THE ORDERS IMPUGNED IN THOSE APPEALS SHOULD BE HELD TO BE ORDERS PASSED WITHOUT PROPER JURISDICTION AND SHOULD BE SET ASIDE AND REMANDED TO THE CIT(A) FOR DECISION AFRESH BY THE CIT(A) WITH COMPETENT JURISDICTION. IT HAS BEEN STATED IN THE APPLICATION FOR RAISING ADDITIONAL GROUNDS THAT THE VARIOUS ASSESSEES FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) - 11, AGAINST THE ORDER OF ASSESSMENT. THE CIT(A)-11, BANGALORE PASSED ORDERS IN THOSE APPEALS DISREGARDING THE DIRECTIONS DATED 18.6.2018 BY THE DIRECTOR GENERAL OF INCOME TAX, (INVESTIGATION), KARNATAKA & GOA, BENGALURU, WHEREBY THE CIT(A)-11 WAS DIRECTED NOT TO PASS ANY FURTHER APPELLATE ORDERS DURING PENDENCY OF THE EXPLANATION SOUGHT ON THE LAPSES IN ADJUDICATING APPEALS. IT WAS THE FURTHER PLEA OF THE REVENUE THAT BY NOTIFICATION DATED 16.07.2018, ISSUED U/ S.120 OF THE ACT, BY THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, KARNATAKA & GOA, THE APPEALS PENDING BEFORE COMMISSIONER OF INCOME TAX (APPEALS) - 11 WERE TRANSFERRED TO COMMISSIONER OF INCOME TAX (APPEALS) - 12, BENGALURU. IT WAS THE CASE OF THE REVENUE THAT COMMISSIONER OF INCOME TAX (APPEALS) - 11 DISREGARDING THE DIRECTIONS ISSUED BY THE PRINCIPAL CCIT, HAS PASSED ORDERS THAT WERE IMPUGNED IN ALL THE 83 APPEALS. IT WAS THE PLEA OF THE REVENUE THAT ALL THE ORDERS IMPUGNED IN THE 83 APPEALS WERE PASSED AFTER 18.6.2018 AND BEFORE 16.7.2018 AND ARE THEREFORE THOSE ORDERS ARE TO BE CONSIDERED AS ORDERS PASSED WITHOUT JURISDICTION AND ON THAT GROUND ARE LIABLE TO BE SET ASIDE. 4. THE TRIBUNAL IN ITS ORDER 22.2.2021, ACCEPTED THE PLEA OF THE REVENUE AND HELD THAT THE ACTION OF THEN LD CIT(A)-11 IN IGNORING THE BINDING DIRECTIONS GIVEN BY DGIT AND PROCEEDING TO PASS ORDERS RESULTS SERIOUS LAPSE ON HIS PART IN ADMINISTERING JUSTICE. THE TRIBUNAL HELD THAT ALL THE ORDERS IMPUGNED IN THE 83 APPEALS WERE PASSED BETWEEN 18.6.2018 AND 16.7.2018 THE INTERESTS OF REVENUE IS PREJUDICED BY THE SAID ACTION OF THE THEN LD CIT(A)-11. THE TRIBUNAL THEREFORE SET ASIDE THE ORDERS OF THE CIT(A) TO THE RESPECTIVE MP NOS.67 AND 68/BANG/2021 (IN ITA NOS.1441 AND 1442/BANG/2018, C.O. NO.103 AND 104/BANG/2018) PAGE 3 OF 5 JURISDICTIONAL CIT(A) TO DECIDE THE APPEALS AFRESH IN ACCORDANCE WITH LAW AFTER DUE OPPORTUNITY OF HEARING TO THE PARTIES. THE ADDITIONAL GROUNDS OF APPEAL WERE ACCORDINGLY ALLOWED. IN VIEW OF THE AFORESAID CONCLUSION, THE ISSUES ON MERITS RAISED BY THE APPELLANTS IN THEIR APPEAL DO NOT REQUIRE ANY CONSIDERATION. ALL THE APPEALS AND CROSS OBJECTIONS WERE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. IN THE AFORESAID ORDER OF THE TRIBUNAL, THE TRIBUNAL CAME TO THE CONCLUSION THAT THE IMPUGNED ORDER OF THE CIT(A) WAS PASSED AFTER THE DATE ON WHICH THE CIT(A) WAS DIVESTED OF HIS POWERS TO ACT AS CIT(A) AND THEREFORE THE ORDER OF THE CIT(A) WAS SET ASIDE AND THE ISSUES RAISED IN THE VARIOUS APPEALS BY THE DIFFERENT ASSESSEES BEFORE THE CIT(A) WERE DIRECTED TO BE DECIDED AFRESH BY THE JURISDICTIONAL CIT(A), AFTER AFFORDING ASSESSEE OPPORTUNITY OF BEING HEARD. 5. IN THIS MP, IT HAS BEEN CONTENDED BY THE ASSESSEE THAT THE TRIBUNAL IN A COMMON ORDER PASSED ON 22.02.2021 WHEREIN THE ABOVE APPEAL IS DISPOSED OFF IN SI.NOS.54 & 55 HAS GIVEN THE FOLLOWING FINDING IN PARA 9 OF ITS ORDER. '9. WE ALSO NOTICE THAT ALL THE ORDERS IMPUGNED IN THESE APPEAL HAVE BEEN PASSED BETWEEN 05.07.2018 AND 13.07.2018, NUMBERING AROUND 50 ORDERS, INVOLVING DIFFERENT ASSESSEES AND DIFFERENT ISSUES, WHICH IS DIFFICULT TASK FOR ANY APPELLATE AUTHORITY. HENCE WE AGREE WITH THE SUBMISSION OF LD STANDING COUNSEL THAT THE INTERESTS OF REVENUE IS PREJUDICED BY THE SAID ACTION OF THE THEN LD CIT(A)-11. ALL THESE FACTORS, IN OUR VIEW, WOULD VITIATE THE APPELLATE ORDERS PASSED BY HIM AFTER 18.06.2018, EVEN IF THE ALLEGATION OF PRE-DATING OF ORDERS IS NOT ACCEPTED/PROVED. HENCE THE IMPUGNED ORDERS, IN OUR VIEW, IS NOT CURABLE AND SUSTAINABLE IN THE EYES OF LAW.' 6. THE FINDINGS OF THE TRIBUNAL ARE THAT, THE APPELLATE ORDERS PASSED BY THE HON'BLE CIT(A)-11, BENGALURU BETWEEN 18.06.2018 AND 16.07.2018 ARE VITIATED AND THE DEFECT IS NOT CURABLE AND SUSTAINABLE IN THE EYES OF LAW AND HENCE SUCH ORDERS HAVE BEEN SET-ASIDE. IN THE BACKGROUND OF THE ABOVE MP NOS.67 AND 68/BANG/2021 (IN ITA NOS.1441 AND 1442/BANG/2018, C.O. NO.103 AND 104/BANG/2018) PAGE 4 OF 5 FACTS, THE RESPONDENT SUBMITS THAT, THE IMPUGNED ORDERS OF THE CIT(A) IN BOTH THE APPEALS OF THE REVENUE AND THE CROSS OBJECTIONS OF THE ASSESSEE WAS PASSED ON 28.02.2018, FOUR MONTHS PRIOR TO THE DATE MENTIONED IN THE FINDINGS I.E, BETWEEN 18.06.2018 AND 16.07.2018. HENCE, THE ASSESSEE HAS SUBMITTED THAT THE FINDINGS OF THE TRIBUNAL ARE NOT APPLICABLE TO RESPONDENTS CASE. IT HAS ALSO BEEN SUBMITTED THAT SINCE ISSUE OF JURISDICTION RAISED BY THE REVENUE IS IN REGARD TO ORDERS PASSED BETWEEN 18.06.2018 AND 16.07.2018 WHEREAS IN THE CASE OF THE RESPONDENT THE ORDER OF THE CIT(A)-11 IS DATED 28.02.2018. THE CIT(A)-11 HAD JURISDICTION TO PASS THE ORDER AND HENCE THERE IS NO ISSUE OF CHANGE OF JURISDICTION RAISED AS ON THIS DATE. IT HAS ALSO BEEN POINTED OUT THAT THE REVENUE IN THE CASE OF THE ASSESSEE HAS NOT FILED ANY ADDITIONAL GROUNDS OF APPEAL. IN THE LIGHT OF THE ABOVE FACTS THE ASSESSEE HAS SUBMITTED THAT THERE IS A MISTAKE APPARENT FROM RECORDS AND THEREFORE THE ORDERS PASSED IN ITA NO.1441& 1442/BANG/2018 AND CO.NO.103 AND 104/BANG/2018 ON 22.02.2021, MAY PLEASE BE RECTIFIED BY RECALLING THE SAID ORDER IN SO FAR AS THE AFORESAID APPEALS AND CROSS OBJECTIONS ARE CONCERNED AND DECIDE THE APPEALS ON MERITS. 7. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE STAND OF THE ASSESSEE AS CONTAINED IN THE MP. ON THE EARLIER OCCASION WHEN THIS MP WAS LISTED FOR HEARING, THE JR. STANDING COUNSEL MR. DILIP, ADVOCATE REQUESTED TIME FOR GETTING THE INSTRUCTIONS AND THE MP WAS ADJOURNED TO TODAY I.E., 01.10.2021. NONE APPEARED ON BEHALF OF THE REVENUE TODAY WHEN THE CASE WAS CALLED FOR HEARING. UNDER THESE CIRCUMSTANCES, WE PROCEED TO DECIDE THE MPS ON THE BASIS OF THE STAND TAKEN IN THE MP. WE ARE OF THE VIEW THAT THE IMPUGNED ORDERS OF THE CIT(A) WERE PASSED ON 28.02.2018 AND THEREFORE THE ORDERS OF CIT(A) DO NOT FALL IN THE CATEGORY OF ORDERS THAT WAS SUBJECT MATTER OF DISCUSSION BY THE TRIBUNAL IN ITS ORDER DATED 22.02.2021. BY INADVERTENCE, THE 2 APPEALS AND THE C.OS. HAVE ALSO BEEN CLUBBED ALONG WITH GROUP OF APPEALS IN WHICH THE ISSUE OF VALIDITY OF THE IMPUGNED ORDERS OF CIT(A) MP NOS.67 AND 68/BANG/2021 (IN ITA NOS.1441 AND 1442/BANG/2018, C.O. NO.103 AND 104/BANG/2018) PAGE 5 OF 5 HAD COME UP FOR CONSIDERATION. SINCE THE ORDER IN QUESTION HAS NOT BEEN PASSED BETWEEN 18.06.2018 AND 16.07.2018, THE APPEALS OF THE DEPARTMENT AND THE C.O. OF THE ASSESSEE OUGHT NOT TO HAVE BEEN DECIDED IN THE MANNER IT WAS DECIDED BY THE TRIBUNAL IN ITS ORDER DATED 22.02.2021. THIS BEING AN APPARENT MISTAKE, THE ORDER OF THE TRIBUNAL IN SO FAR AS THE APPEAL BEING ITA NOS.1441, 1442/BANG/2018 OF THE DEPARTMENT AND THE CONNECTED C.O. NO.103 & 104/BANG/2018 FILED BY THE ASSESSEE ARE RECALLED. THE ABOVE APPEALS AND THE C.OS. ARE DIRECTED TO BE FIXED FOR HEARING IN DUE COURSE FOR HEARING ON MERITS, AFTER NOTICE TO THE PARTIES. 8. IN THE RESULT, THE MISCELLANEOUS PETITIONS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- BANGALORE, DATED: 01.10.2021. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE. ( B . R. BASKARAN ) (N. V. VASUDEVAN) ACCOUNTANT MEMBER VICE PRESIDENT