ITO, CHENNAI V. Sri Annapoorna Re-Rolling Pvt Ltd., Gummidipoondi

MA 70/CHNY/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5652 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-07-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 03-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANAT KUMAR RAHA
• Assessee Lawyers: G BASKAR
• Keywords: Depreciation; Audit objection; Question of law; Tax effect; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . , . , BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI DUVVURU R L REDDY , JUDICIAL MEMBER M.P.NO. 70 /MDS/2017 [IN I . T.A. NO. 1224 /MDS/201 6] ASSESSMENT YEAR :20 03 - 0 4 THE INCOME TAX OFFICER, CORPORATE WARD 6 ( 4 ), 121, M.G. ROAD, 7 TH FLOOR, CHENNAI 600 034 . VS. M/S. SRI ANNAPOORNA RE - ROLLING PVT. LTD., F - 80, SIPCOT IN DUS COMPLEX, GUMMIDIPOONDI 601 201. [PAN:AA FCS8305J ] ( PETITIONER ) ( RESPONDENT ) PETITIONER BY : SHRI SANAT KUMAR RAHA , JCIT RESPONDENT BY : SHRI G . BASKAR , ADVOCATE / DATE OF HEARING : 05 . 0 1 .201 8 / DATE OF P RONOUNCEMENT : 18 . 0 1 .201 8 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE REVENUE SEEKS TO RECALL THE ORDER PASS ED BY THE TRIBUNAL IN I.T.A. NO. 122 4 /MDS/2016 DATED 29 .0 7 .201 6 FOR THE ASSESSMENT YEAR 200 3 - 0 4. BY REFERRING TO THE PETITION, THE LD. DR HAS SUBMITTED THAT THE ABOVE APPEAL WAS DISMISSED ON LESS TAX EFFECT SINCE, THE ISSUE RAISED IN THE APPEAL OF THE REVE NUE WAS ARISING OUT OF RAP OBJECTION, WHICH WAS ACCEPTED BY THE DEPARTMENT, THE LD. DR HAS PLEADED M.P. NO . 7 0 /M/ 17 2 THAT THE ABOVE ORDER OF THE TRIBUNAL DATED 29.07.2016 MAY BE RECALLED AND DECIDED THE ISSUE ON MERITS. 2. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE VEH EMENTLY ARGUED THAT NO DOCUMENTARY EVIDENCE HAS BEEN PLACED BEFORE THE TRIBUNAL EITHER AT THE TIME OF HEARING OF THE APPEAL OR ALONG WITH THE PRESENT MISCELLANEOUS PETITION TO SAY THAT THERE WAS AUDIT OBJECTION AND SUCH AUDIT OBJECTION WAS ACCEPTED BY THE DEPARTMENT AND PRAYED THAT THE PETITION FILED BY THE DEPARTMENT IS LIABLE TO BE DISMISSED. HE RELIED ON THE DECISION IN THE CASE OF PCIT V. PARAGON STEELS PVT. LTD. IN T.C.A. NO. 579 OF 2017 DATED 07.12.2017. 3. WE HAVE HEARD BOTH SIDES, PERUSED THE MA TERIALS AVAILABLE ON RECORD. IN THIS CASE, THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] ON 05.02.2004. SUBSEQUENTLY, NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 19.05.2006 AND DULY SERVED ON THE ASSESSEE. IN RESPONSE THERETO, THE ASSESSEE IN ITS LETTER DATED 23.06.2006, STATED THAT THE ORIGINAL RETURN ALREADY FILED MAY BE TAKEN AS ONE IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. IN THE SAME LETTER, THE ASSESSEE ASKED REASONS FOR REOPENING THE ASSESSMENT. NOTICE UNDER SECTION 143(2) OF THE ACT WAS ALSO ISSUED ON 27.06.2006. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND VERIFICATION OF RECORDS PRODUCED BY THE ASSESSEE, THE ASSESSMENT UNDER SECTION 143(3) R.W. M.P. NO . 7 0 /M/ 17 3 SEC TION 147 OF THE ACT WAS COMPLETED BY MAKING DISALLOWANCE OF TOTAL INCOME AS ADMITTED BEFORE ADJUSTMENT OF LOSS AS WELL AS DISALLOWANCE OF DEPRECIATION CLAIM ON MS ROLLS. ON PERUSAL OF THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W. SECTION 147 OF THE ACT, WE FIND THAT THERE WAS NO MENTION IN THE ASSESSMENT ORDER THAT THE REASSESSMENT PROCEEDINGS WERE INITIATED ON THE BASIS OF AUDIT OBJECTION . 4. ADMITTEDLY, T HE TAX EFFECT IN THE ORIGINAL APPEAL FILED BY THE REVENUE WAS LESS THAN THE MONETARY LIMIT OF .10,00,000/ - FIXED BY THE CBDT TO FILE AN APPEAL BY THE REVENUE BEFORE THE TRIBUNAL AS PER THE CBDT CIRCULAR NO. 21/2015 DATED 10.12.2015, WHICH WAS ACCEPTED BY THE LD. DR. THUS, THE TRIBUNAL HELD THAT THE REVENUE AUTHORITIES ARE PRECLUDED FROM FILING THE APPEAL BEFORE THE TRIBUNAL SINCE THE TAX EFFECT WAS LESS THAN .10,00,000/ - AND ACCORDINGLY, THE TRIBUNAL DISMISSED THE APPEAL AS UN - ADMITTED. 5. HOWEVER, THE REVENUE HAS FILED THE PRESENT PETITION TO RECALL THE ORDER OF THE TRIBUNAL DATED 29.07.2016 A ND ADJUDICATE THE ISSUE ON MERITS ON THE GROUND THAT THERE WAS AUDIT OBJECTION AND SUCH AUDIT OBJECTION WAS ACCEPTED BY THE DEPARTMENT, BUT, THE REVENUE HAS NOT FILED ANY DOCUMENTARY EVIDENCE ALONG WITH THE PETITION OR DURING THE COURSE OF HEARING OF THE P ETITION. ON PERUSAL OF THE APPROVAL GRANTED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX - 6, CHENNAI UNDER RULE 15 OF APPELLATE TRIBUNAL RULES, 1963, IT APPEARS THAT THE APPEAL WAS FILED BY THE REVENUE IN THE REGULAR COURSE M.P. NO . 7 0 /M/ 17 4 AND NOT ON THE BASIS OF AUDIT OBJE CTION. THEREFORE, IT IS OBVIOUS THAT PARA 8 OF CIRCULAR NO.21 OF 2015 ISSUED BY CBDT IS NOT APPLICABLE. 6. FURTHER, WE FIND THAT AGAINST DISMISSAL OF THE MISCELLANEOUS PETITION FILED BY THE REVENUE IN THE CASE OF DCIT V. PARAGON STEELS PVT. LTD. IN M.P. NO. 214/MDS/2016 [IN I.T.A. NO. 887/MDS/2015] DATED 03.03.2017, THE REVENUE PREFERRED FURTHER APPEAL BEFORE THE HON BLE MADRAS HIGH COURT IN T.C.A. NO. 579 OF 2017. WHILE DISMISSING THE APPEAL FILED BY THE REVENUE, THE HON BLE JURISDICTIONAL HIGH COURT HA S HELD AS UNDER: 3. THE SAID MISCELLANEOUS PETITION WAS FILED BY THE REVENUE BEFORE THE TRIBUNAL ON THE GROUND THAT CIRCULAR NO. 21/2015 OF THE CENTRAL BOARD OF DIRECT TAXES IS NOT APPLICABLE TO THE APPEAL FILED BY THE REVENUE. THE TRIBUNAL VERIFIED THE O RIGINAL FILES AND ON PERUSAL OF THE APPROVAL GRANTED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX UNDER RULE 15 OF THE APPELLATE TRIBUNAL RULES, 1963, THE TRIBUNAL FOUND THAT THE APPEAL WAS FILED IN THE REGULAR COURSE AND NOT ON THE BASIS OF THE AUDIT OBJECTIONS. THE TRIBUNAL ULTIMATELY CONCLUDED THAT PARAGRAPH 8 OF CIRCULAR NO. 21/2015 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES IS NOT APPLICABLE AND ACCORDINGLY, THE SAID MISCELLANEOUS PETITION FILED BY THE REV ENUE WAS REJECTED. THE TRIBUNAL, AFTER HAVING CONSIDERED THE FACTUAL POSITION AND VERIFIED THE ORIGINAL FILES, HAS TAKEN A DECISION IN THE MATTER AND WE FIND NO SUBSTANTIAL QUESTION OF LAW ARISES FOR CONSIDERATION IN THIS APPEAL, AS THE ENTIRE FINDING IS F ACTUAL. 4. FOR THE ABOVE REASONS, THE ABOVE TAX CASE APPEAL IS DISMISSED. IN VIEW OF THE IDENTICAL FACTS AND CIRCUMSTANCES AND RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE HON BLE MADRAS HIGH COURT , THE MISCELLANEOUS PETITION FILED BY THE REVENUE STANDS DISMISSED. M.P. NO . 7 0 /M/ 17 5 7 . IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED ON THE 18 TH JANUARY , 201 8 AT CHENNAI. SD/ - SD/ - (A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, D ATED, THE 18 . 0 1 .201 8 VM/ - / COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) / CIT(A), 4. / CIT, 5. / DR & 6. / GF.