ACIT, New Delhi V. Nimitaya Hotel & Resort Ltd., New Delhi

MA 724/DEL/2019

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6669 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 11-05-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 04-09-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reassessment proceedings
• Section: 143(3)

Judgement Text

Page | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “E”: NEW DELHI BEFORE SHRI C. N. PRASAD, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER MA No. 724/Del/2019 (In ITA No. 1832/Del/2014) (Assessment Year: 2009-10) ACIT, Central Circle-22, New Delhi Vs. Nimitaya Hotel & Resorts Ltd, 201, Empire Apartment, 98, MG Road, Sultanpur, New Delhi (Appellant) (Respondent) PAN: AACCN4072G Assessee by : Sh. Salil Kapoor, Adv Sh. Tarun Chanana, Adv Revenue by: Sh. Bhopal Singh, Sr. DR Date of Hearing 09/06/2023 Date of pronouncement 10/10/2023 O R D E R PER M. BALAGANESH, A. M.: 1. By virtue of this miscellaneous application, the revenue seeks to recall the order passed by this tribunal in ITA No. 1832/Del/2014 and ITA No. 1719/Del/2014 dated 1.4.2019 for the Asst Year 2009- 10 2. The revenue has filed miscellaneous application as under:- “Brief facts of the case:- The assessee company filed its return of income on 27.09.2009 at NIL income. The case of the assessee was selected for compulsory scrutiny. The assessment order u/s. 143(3) of the Income Tax Act, 1961 was passed on 15.12.2011 at an income of Rs.3,50,00,000/- after making addition of Rs. 3,50,00,000/-on protective basis on account of cash transaction. The Ld. CIT(A) deleted the protective assessment on the ground that there was no sale MA No. 724/Del/2019 Nimitaya Hotel & Resorts Ltd Page | 2 of property but directed the AO to initiate the proceedings u/s. 26955 of the Act. Aggrieved with the order of CIT(A), the Department as well as assessee filed cross appeal before Ld. ITAT, wherein Dept. raised the ground of dismissal of addition by CIT(A) and assessee raised the ground of new direction given by CIT(A) for action u/s. 26955 of the Act, 1961. The issue of addition on account of cash transaction was involved in the A.Y. 2007-08, 2008-09 and 2009-10. The case for A.Y. 2008-09 and 2009-10 were scrutinized under reassessment proceedings 143(3)/147 of the Income Tax Act, 1961 while case for A.Y. 2009-10 was scrutinized under compulsory scrutiny. ITAT Decision- A composite order in ITA No. 1830, 1831 and 1832/Del/2014 and ITA No. 1717 to 1719/Del/2014 dated 01.04.2019 for all the aforementioned years i.e: A.Y. 2007-08, 2008-09 and 2009-10 was passed by Ld. ITAT considering both appeal of the assessee and revenue. The appeal of the assessee was allowed appeal of the department was dismissed. The Ld. ITAT relying on the decision of Hon'ble Supreme Court in case of M/s. GKN Drive Shaft (India) Limited 259 ITR 19 quashed the reopening of the assessment for all the above aforementioned A.Y. 2007-08, 2008-09 and 2009-10. However, the Ld. ITAT has not gone into the facts that for A.Y. 2009-10 in ITA No. 1832/Del/2014 that the assessment was completed in proceedings u/s. 143(3) after selection of the case in compulsory scrutiny. The case law of M/s. GKN Drive Shaft (India) Limited 259 ITR 19 is different from the facts of the case in A.Y. 2009-10 and may not be applicable on it. In view of the above, it is kindly requested before Ld. ITAT that the proceedings in ITA No. 1832/Del/2014 and cross appeal of the revenue in ITA No. 1719/Del/2014 may be recalled and the matter may be decided on merit accordingly.” 3. We have heard the rival submissions and perused the materials available on record. It is a fact that the tribunal had disposed of the appeal in ITA No. 1832/Del/2014 and ITA No. 1719/Del/2014 for the Asst Year 2009-10 by quashing the reassessment proceedings by following its own order for the Asst Year 2007-08. But factually there was no re-assessment framed on the assessee for the Asst Year 2009-10. From the perusal of the records, we find that only a regular assessment was framed for the Asst Year 2009-10 u/s 143(3) MA No. 724/Del/2019 Nimitaya Hotel & Resorts Ltd Page | 3 of the Act by the ld. AO. Hence the contention raised by the revenue that appeals for the Asst Year 2009-10 in ITA No. 1832/Del/2014 and ITA No. 1719/Del/2014 are to be recalled is correct. Registry is directed to fix these two appeals for the Asst Year 2009-10 for hearing on 14.11.2023 by issuing notices to both the parties. 4. In the result, the miscellaneous application of the revenue is allowed. Order pronounced in the open court on 10/10/2023. -Sd/- -Sd/- (C. N. Prasad) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 10/10/2023 A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi