OLEOFINE ORGANICS (INDIA) P.LTD, MUMBAI V. DCIT CIR 10(2), MUMBAI

MA 725/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 2872 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 07-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 147

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI M. BALAGANESH , ( AM ) AND SHRI AMARJIT SINGH (JM) M.A . N0. 725 /M/2018 / I.T.A. NO.5831 /MUM/201 4 ( / ASSESSMENT YEAR: 2006 - 07 ) OLEOFINE ORGANICS (INDIA) PVT. LTD. (NOW AMALGAMATED WITH FINE ORGANIC INDUSTRIES LTD.) FINE HOUSE, ANANDJI STREET OFF M. G. ROAD, GHATKOPAR (E), MUMBAI - 400077. / VS. THE DCIT CIRCLE - 10(2) AAYAKAR BHAVAN MAHARSHI KARVE MARG, MUMBAI - 400020. ./ ./ PAN/GIR NO. : AAACO1352Q ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 15 .0 3 .201 9 /DATE OF PRONOU NCEMENT: 12. 0 4 .2019 / O R D E R PER AMARJIT SINGH (J M) : THIS ORDER SHALL DISPOSE OF THE MISCELLA N EOUS APPLICATION BEARING NO. 725 /M/1 8ARISING OUT OF ITA. NO. 5831 /M/1 4 FOR THE A.Y.2006 - 07. 2. IT IS AVERRED THAT THE HONBLE ITAT HAS DECIDED THE APPEAL BEARING ITA NO.5831/M/2014 FOR THE A.Y.2006 - 07 ON DATED 17.04.2015. THE APPLICANT RAISED THE THREE GROUNDS WHICH ARE HEREBY REPRODUCE D AS UNDER.: - 1. THE RE - OPENING OF ASSESSMENT U/S 147 AND CONSEQUENTIAL RE - ASSESSMENT U/S 143(3) R.W.S. 147 IS INVALID AND BAD IN LAW. 2. THE LD. AO & THE CIT(A) HAVE FAILED TO APPRECIATE THAT CONDITION AS REGARDS UNIT BEING SMALL SCALE IS REQUIRED TO BE SATISFIED/EXAMINED ONLY IN THE FIRST/INITIAL YEAR OF CLAIMING OF DEDUCTION U/S 80IB(3). 3. THE LD. AO HAS ERRED ON FACTS AND IN LAW IN DENYING CLAIM OF DEDUCTION OF RS.2,20,37,548/ - MADE U/S 80IB(3). THE CIT(A) HAS ERRED IN CONFIRMING THE SAME. ASSESSEE BY : SHRI K.K. VED/ MS. S. R. KHATRI REVENUE BY: SHRI MANISH KR. SINGH (SR. AR) 2 M A NO.725 /M/2018 A.Y.2006 - 07 2 AFTER HEARING THE APPEAL, THE HONBLE ITAT HAS DECIDED THE CASE ON MERITS BUT DID NOT DECIDE THE LEGAL ISSUE RAISED AS GROUND NO. 1. THEREAFTER, THE REVENUE HAS FILED AN APPEAL BEFORE THE HONBLE HIGH COURT BY VIRTUE OF ITA NO. 449 OF 2016 AND THE GROUNDS ON MERITS HAS BEEN DECIDED IN FAVOUR OF THE REVENUE. THE HONBLE HIGH COURT ALSO ALLOWED THE ASSESSEE TO RAISE THE LEGAL GROUNDS BEFORE THE HONBLE ITAT, THEREFORE, THE ORDER QUA LEGAL GROUND WHICH HAS BEEN MENTIONED AT SERIAL NUMBER 1 IS LIABLE TO BE RECA LLED AND TO BE DECIDED IN THE INTEREST OF JUSTICE. 3 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE HON BLE ITAT HAS DECIDED THE ITA. NO.5831 & 5832/M/2014 FOR THE A.Y. 2006 - 07 & 2010 - 11 BY VIRTUE OF ORDER DATED 17.04.2015. H OWEVER, THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED IN PURSUANCE OF ORDER PASSED BY HONBLE ITAT IN ITA. NO.5831/M/2014 FOR THE A.Y. 2006 - 07. THE HONBLE ITAT HAS DECIDED THE CASE ON MERITS AND ALLOWED THE CLAIM OF TH E ASSESSEE BY V IRTUE OF ORDER DATED 17.04.2015 . T HE LEGAL ISSUE WAS NOT DECIDED . S UBSEQUENTLY , THE REVENUE FILED AN APPEAL BEFORE THE HONBLE HIGH COURT OF BOMBAY IN VIEW OF THE INCOME TAX APPEAL NO.449 OF 2016 WHICH WAS DECIDED IN FA V OUR OF THE REVENUE ON MERITS BY VIRTUE OF ORDER DATED 04.02.2019. THE RELEVANT FINDING HAS BEEN GIVEN IN PARA NO. 3 WHICH IS HEREBY REPRODUCED AS UNDER.: - 3. IT IS UNDISPUTED POSITION THAT THE QUESTION IS DECIDED IN FAVOUR OF THE REVENUE BY THE JUDGMENT OF THE SUPREME COUR T IN CASE OF DEPUTY COMMISSIONER OF INCOME TAX VS. ACE MULTI AXES SYSTEMS, 401 ITR 141. IDENTICAL ISSUE HAD ALSO COME UP FOR CONSIDERATION IN INCOME TAX APPEAL NO.455 OF 2016 FILED BY THE REVENUE AGAINST THIS VERY ASSESSEE, IN WHICH THIS COURT HAD BY ORDER DATED 9 FEBRUARY, 2018 ALLOWED THE REVENUE'S APPEAL. THIS APPEAL, HOWEVER, WOULD PRESENT AN ANOTHER ANGLE TO THE ENTIRE CONTROVERSY. BEFORE THE TRIBUNAL, THE ASSESSEE HAD QUESTIONED THE VERY JURISDICTION OF THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT D URING WHICH PROCEEDINGS, THE SUBJECT ISSUE COME UP FOR CONSIDERATION. THE TRIBUNAL IN THE IMPUGNED JUDGMENT IN VIEW OF HOLDING THE ISSUE ON MERITS IN FAVOUR OF THE ASSESSEE, DID NOT FIND IT NECESSARY TO EXAMINE THE QUESTION OF VALIDITY OF 3 M A NO.725 /M/2018 A.Y.2006 - 07 3 REOPENING OF ASSE SSMENT. NOW THAT WE HAVE REVERSED THE DECISION OF THE TRIBUNAL ON MERITS OF THE ASSESSEE'S CLAIM OF DEDUCTION, THE QUESTION OF VALIDITY OF REOPENING OF THE ASSESSMENT ASSUMES SIGNIFICANCE. AS NOTED, THOUGH SUCH A QUESTION WAS RAISED BEFORE THE TRIBUNAL, TH E TRIBUNAL DID NOT DECIDE THE SAME BEING AN ALTERNATIVE CONTENTION. UNDER THE CIRCUMSTANCES, THIS QUESTION WE PLACE BACK TO THE TRIBUNAL FOR ITS CONSIDERATION AND DECISION ON MERITS. FOR SUCH LIMITED PURPOSE, THE PROCEEDINGS ARE PLACED BEFORE THE TRIBUNAL. WE ARE INFORMED THAT THE ASSESSEE HAS ALREADY FILED AN APPLICATION FOR RECTIFICATION BEFORE THE TRIBUNAL ON THIS GROUND. IT WOULD BE OPEN TO THE TRIBUNAL TO COMBINE THE ABOVE APPLICATION WITH THIS DIRECTION AND GIVE A COMMON DECISION. 4. ON APPRAISAL OF THE ABOVE MENTIONED FINDING, WE ARE OF THE VIEW THAT THE LEGAL ISSUE IS REQUIRED TO BE DECIDED BY HON BLE ITAT, THEREFORE, WE RECALL THE ORDER TO THAT EXTENT AND ADJOURNED THE CASE ON 16.05.2019 FOR ARGUMENTS, THERE IS NO NEED TO ISSUE THE NOTICE S TO THE PARTIES BECAUSE THE DECISION HAS BEEN ANNOUNCED IN THE PRESENCE OF THE REPRESENTATIVE OF THE PARTIES. ACCORDINGLY, WE ALLOWED THE PRESENT MISCELLANEOUS APPLICATION. 5 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 1 2 . 0 4 . 2019 . S D / - S D / - ( M. BALAGANESH ) (AMARJIT SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED : 1 2 . 0 4 . 2019 VIJAY 4 M A NO.725 /M/2018 A.Y.2006 - 07 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI