DEPUTY COMMISSIONER OF INCOME TAX (IT) 1(1), MUMBAI V. AMERICAN EXPRESS BANK LIMITED, MUMBAI

MA 67/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6626 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 14-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA SINGHDR
• Keywords: Retrospective amendment; Reassessment proceedings
• Section: 143(3); 115JB

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -ABENCH MUMBAI , , BEFORE S/SHRI MAHAVIR SINGH,JUDICIAL MEMB ER AND RAJENDRA,ACCOUNTANT MEMBER / MA NO.67/MUM/2017 (ARISING OUT OF / ITA NO.1064/MUM/2014) /ASSESSMENT YEAR-2005-06) DCIT-(INTL. TAXATION)-1(1) 1ST FLOOR, SCINDIA HOUSE, BALLARD ESTATE MUMBAI-400 038. VS. M/S. AMERICAN EXPRESS BANK LTD. C/O. SRBC AND ASSOCIATES 6TH FLOOR, EXPRESS TOWERS NARIMAN POINT, MUMBAI-400 021. PAN:AABCA 0588 K ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI VIRENDRA SINGH-DR ASSESSEE BY: SHRI NISHANT THAKKAR/ MS. JASMIN AMALSADWALA / DATE OF HEARING: 25/05/2018 / DATE OF PRONOUNCEMENT: 30.05.2018 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) , / PER RAJENDRA, AM - VIDE ITS APPLICATION,DATED 14/02/2017,THE ASSESSING OFFICER(AO)HAS STATED THAT THERE WAS CERTAIN MISTAKES IN THE ORDER OF THE TRIBUNAL,DATED 31/5/16, THAT SAME WERE TO BE RECTIFIED AS PER PROVISIONS OF SECTION 254(2) OF THE ACT,THAT TH E ORIGINAL ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT,THAT AFTER THE EXPIRY OF FOUR YEA RS FROM THE END OF THE RELEVANT ASSESSMENT YEAR THE CASE WAS REOPENED U/S.147 BY ISSUANCE OF N OTICE U/S. 148, THAT THE ASSESSEE OBJECTED TO REOPENING REFERRING TO PROVISO TO SECTION 147OF THE ACT. HOWEVER, THE AO REJECTED THE OBJECTION AND PROPOSED AN ADDITION OF RS.58.86 CROR ES TO THE INCOME OF THE ASSESSEE AS PER THE PROVISIONS OF SECTION 115JB OF THE ACT. 2. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE CHALL ENGED THE VALIDITY OF THE REOPENING BEFORE THE DRP ON THE GROUND THAT AMENDMENT WAS BRO UGHT IN STATUTE AS SUCH AFTER THE FILING OF RETURN OF INCOME AND POST COMPLETION OF ASSESSME NT WITH RETROSPECTIVE EFFECT, THAT THERE WAS NO FAILURE ON PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS RELEVANT FOR THE ASSESSMENT.THE DRP RELYING UPON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT, DELIVERED IN THE CASE OF K.MOHAN AND CO. (ITA NO.12 63 OF 2011 AND ITA NO.2347 OF 2010) HELD THAT LEGISLATIVE AMENDMENT BROUGHT WITH RETROS PECTIVE EFFECT COULD NOT BE A VALID GROUND MA NO.67/M/17-M/S. AMERICAN EXPRESS BANK LTD. 2 FOR THE REOPENING THE ASSESSMENT COMPLETED U/S. 143 (3) AFTER THE EXPIRY OF PERIOD OF FOUR YEARS.THE TRIBUNAL REFERRING TO THE JUDGMENT OF K M OHAN AND CO. (SUPRA) UPHELD THE ORDER OF THE DRP AND DISMISSED APPEAL FILED BY THE AO. 3. DURING THE COURSE OF HEARING BEFORE US,THE DEPARTME NTAL REPRESENTATIVE (DR) STATED THAT DRP SHOULD NOT HAVE HELD THAT ASSESSMENT WAS BAD IN LAW, THAT DRP COULD ENHANCE OR REDUCE THE PROPOSED ADDITION.THE AUTHORISED REPRESENTATIVE (AR) CONTENDED THAT THERE WAS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS.WE FIND THAT TH E AO HAD INITIATED REASSESSMENT PROCEEDINGS IN LIGHT OF RETROSPECTIVE AMENDMENT MAD E TO SECTION 115 JB,THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT,THAT AT THE TIME OF FILING OF RETURN,THE ASSESSEE HAD RIGHTLY COMPUTED THE BOOK PROFIT,THAT THE DRP FOLLOWING THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT HAD HELD THAT THE RE WAS NO FAILURE ON PART OF THE ASSESSEE TO DISCLOSE NECESSARY FACTS,THAT THE TRIBUNAL UPHELD THE ORDER OF THE DRP. WE HOLD THAT THE DRP HAD NOT COMMITTED ANY MISTAKE IN FOLLOWING THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT.IF THE ASSESSMENT ITSELF WAS AGAINST THE PROVISIONS OF THE ACT, IT WAS THE DUTY OF THE DRP TO GIVE RELIEF TO THE ASSESSEE. THE TRIBUNAL HAS ENDORSED THE VIEWS OF THE DRP.IT IS A SIMPLE CASE WHERE VALIDITY OF REOPENING HAD TO BE EXAMINED.IT IS NOT DISPUTED THAT ADDITION WAS PROPOSED ON THE BASIS OF RETROSPECTIVE AMENDMENT.THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF K MOHAN & CO. HAS SPECIFICALLY DEALT WITH THE ISSUE OF COMPUTATION OF INCOME UNDER THE MAT PROVISIONS.THE DRP AND TRIBUNA L HAS FOLLOWED THE JUDGMENT. THEREFORE,WE HOLD THAT THERE IS NO MISTAKE IN THE O RDER OF THE TRIBUNAL. AS A RESULT,MA FILED BY AO STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MAY, 2018. 30 , 2018 SD/- SD/- ( / MAHAVIR SINGH ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 30.05.2018. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / MA NO.67/M/17-M/S. AMERICAN EXPRESS BANK LTD. 3 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.