Leo Fasteners, Pondicherry V. ACIT, Pondicherry

MA 71/CHNY/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3730 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 24-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI ... , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NOS.70, 71 & 72/MDS/2015 (IN I.T.A. NOS.1223, 3097 & 3098/MDS/2014) & '& / ASSESSMENT YEARS : 2005-06, 2006-07 & 2007-08 M/S LEO FASTENERS, REP. BY ITS PARTNER A-27A, INDUSTRIAL ESTATE, THATTANCHAVADY, PONDICHERRY-9. PAN : AABFL 0652 J V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE I, PONDICHERRY. ()*& /PETITIONER) ()+*,/ RESPONDENT) )*& . / /PETITIONER BY : SMT. PUSHYA SEETHARAMAN, SR. ADVOCATE SMT. J. SREEVIDYA, ADVOCATE )+*, . / / RESPONDENT BY : DR. B. NISCHAL, JCIT 0 . 1$ / DATE OF HEARING : 04.09.2015 2!' . 1$ / DATE OF PRONOUNCEMENT : 09.12.2015 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE FILED THE PRESENT MISCELLANEOUS PETI TIONS TO RECTIFY AN ERROR CREPT IN THE ORDER OF THIS TRIBUNA L DATED 29.05.2015. 2. SMT. PUSHYA SEETHARAMAN, LD. SR. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE MAIN CONTENTION OF THE ASSESSEE BEFORE THIS 2 M.P. NOS.70 TO 72/MDS/15 TRIBUNAL IS REOPENING OF ASSESSMENT BEYOND FOUR YEA RS FROM THE END OF THE YEAR IN WHICH THE RETURN WAS FILED. ACC ORDING TO THE LD. SR. COUNSEL, THE ASSESSEE HAS DISCLOSED ALL THE MAT ERIAL FACTS NECESSARY FOR COMPLETING THE ASSESSMENT. THIS TRIB UNAL OBSERVED IN THE ORDER THAT THE INCLUSION OF INTEREST INCOME AND GAIN ON FOREIGN EXCHANGE FOR DEDUCTION UNDER SECTION 80-IB OF THE I NCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') CAME TO THE NOTICE OF THE ASSESSING OFFICER CONSEQUENT TO A SEARCH CARRIED ON BY THE DEPARTMENT . IT WAS FURTHER OBSERVED THAT BUT FOR THE SEARCH, THESE DET AILS WOULD NOT HAVE COME TO THE KNOWLEDGE OF THE ASSESSING OFFICER . ACCORDING TO THE LD. SR. COUNSEL, NO SEARCH TOOK PLACE AND THE A BOVE DETAILS WERE NOT FOUND AS A RESULT OF SEARCH. THE REASSESS MENT PROCEEDINGS WERE INITIATED ON THE VERIFICATION OF R ECORDS AFTER EXPIRY OF FOUR YEARS. ACCORDING TO THE LD. SR. COUNSEL, T HE OBSERVATION OF THIS TRIBUNAL THAT THE INTEREST INCOME AND GAIN ON FOREIGN EXCHANGE CAME TO THE KNOWLEDGE OF THE ASSESSING OFFICER CONS EQUENT TO A SEARCH IS ERROR WHICH CREPT IN THE ORDER. THEREFOR E, THE ORDER OF THIS TRIBUNAL NEEDS TO BE RECTIFIED. 3. WE HEARD DR. B. NISCHAL, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. THE LD. D.R. HAS VERY FAIRLY SUBMITTED THAT THERE WAS NO SEARCH IN THE ASSESSEES CASE. THEREF ORE, THE 3 M.P. NOS.70 TO 72/MDS/15 OBSERVATION OF THE TRIBUNAL THAT THE INTEREST INCOM E AND GAIN ON FOREIGN EXCHANGE CAME TO THE KNOWLEDGE OF THE ASSES SING OFFICER CONSEQUENT TO THE SEARCH IS NOT FACTUALLY CORRECT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT PAGE 5 OF ITS ORDER, THIS TRIBUNAL FOUND THAT THE INCLUSION OF IN TEREST INCOME AND GAIN ON FOREIGN EXCHANGE FOR DEDUCTION UNDER SECTIO N 80-IB OF THE ACT CAME TO THE NOTICE OF THE ASSESSING OFFICER CON SEQUENT TO A SEARCH CARRIED ON BY THE DEPARTMENT. THIS TRIBUNAL HAS FOUND THAT BUT FOR THE SEARCH, THE DETAILS WOULD NOT HAVE COME TO THE KNOWLEDGE OF THE ASSESSING OFFICER. THE FACT ADMIT TEDLY REMAINS THAT THERE WAS NO SEARCH OPERATION CARRIED IN THE P REMISES OF THE ASSESSEE. THEREFORE, THE OBSERVATION OF THE TRIBUN AL THAT THERE WAS SEARCH IN THE PREMISES OF THE ASSESSEE IS FACTUALLY NOT CORRECT. BECAUSE OF THIS FACTUAL ERROR, WHICH CREPT IN THE O RDER OF THIS TRIBUNAL, THE CONCLUSION REACHED BY THE TRIBUNAL MA Y NOT BE CORRECT. THE FACTUAL ERROR WHICH CREPT IN THE ORDER, THEREFO RE, NEEDS TO BE RECTIFIED. THIS TRIBUNAL IS OF THE CONSIDERED OPIN ION THAT THE ERROR CREPT IN THE ORDER CAN BE RECTIFIED EFFECTIVELY ONL Y BY RECALLING THE ORDER OF THIS TRIBUNAL DATED 29.05.2015. MOREOVER, IT ALSO NEEDS TO BE FOUND OUT HOW THE ASSESSING OFFICER CAME TO KNOW ABOUT THE 4 M.P. NOS.70 TO 72/MDS/15 ESCAPEMENT OF INCOME WHICH IS OTHERWISE CHARGEABLE TO TAX. SINCE ADMITTEDLY THERE WAS NO SEARCH OPERATION CONDUCTED IN THE PREMISES OF THE ASSESSEE, THIS TRIBUNAL IS OF THE C ONSIDERED OPINION THAT THE APPEALS OF THE ASSESSEE NEED TO BE RE-HEAR D ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ACCORDINGLY, IN T HE INTEREST OF JUSTICE, THE ORDER OF THIS TRIBUNAL DATED 29.05.201 5 IS HEREBY RECALLED. NOW ALL THE THREE APPEALS OF THE ASSESSE E IN I.T.A. NOS.1223, 3097 & 3098/MDS/2014 ARE RESTORED ON THE FILE OF THIS TRIBUNAL. THE REGISTRY IS DIRECTED TO POST ALL THE THREE APPEALS OF THE ASSESSEE IN I.T.A. NOS.1223, 3097 & 3098/MDS/20 14 FOR HEARING ON 28.01.2016 BEFORE THE REGULAR BENCH. 5. IN THE RESULT, ALL THE THREE MISCELLANEOUS PETIT IONS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON 9 TH DECEMBER, 2015 AT CHENNAI. SD/- SD/- (. !' ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 9 TH DECEMBER, 2015. KRI. 5 M.P. NOS.70 TO 72/MDS/15 . )156 76'1 /COPY TO: 1. )*& / PETITIONER 2. )+*, /RESPONDENT 3. 0 81 () /CIT(A) 4. 0 81 /CIT 5. 69 )1 /DR 6. :& ; /GF.