M/s Malnad Finance Coproation, Bangalore V. Assistant Commissioner of income tax, Bangalore

MA 81/BANG/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6991 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 10 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 16-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P MEENAKSHI
• Assessee Lawyers: V SRINIVASAN
• Keywords: Reassessment proceedings
• Section: 148; 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE B BENCH, BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K.GARODIA, ACCOUNANT MEMBER [M.P. NOS. 81 & 126/BANG/2018 (IN ITA NOS. 1075 & 1432/BANG/2012)] (ASSESSMENT YEAR : 2005 06) SHRI G. VENKATESH, NO. 199, 16 TH MAIN, 4 TH T BLOCK, JAYANAGAR, BANGALORE 560041. APPELLANT VS. THE ITO, WARD 4 (1), BANGALORE. RESPONDENT ASSESSEE BY : SHRI V. SRINIVASAN, ADVOCATE REVENUE BY : SMT. P. MEENAKSHI, JCIT (DR) DATE OF HEARING : 20-07-2018 DATE OF PRONOUNCEMENT : 03-08-2018 O R D E R PER A. K. GARODIA, A.M.: BOTH THESE M. PS. ARE FILED BY THE ASSESSEE AGAINST A COMBINED TRIBUNAL ORDER IN RESPECT OF TWO APPEALS OF THE ASSESSEE FOR SAME ASS ESSMENT YEAR OUT OF WHICH, ONE APPEAL WAS DIRECTED AGAINST MAIN ORDER OF CIT (A) A ND THE SECOND APPEAL WAS FILED AGAINST THE ORDER PASSED BY CIT (A) U/S 154. 2. AS PER PARA 2 OF THE IMPUGNED TRIBUNAL ORDER, IT IS NOTED BY THE TRIBUNAL THAT THE APPEAL FILED BY THE ASSESSEE AGAINST ORDER U/S 154 HAS BEC OME INFRUCTOUS AND THE TRIBUNAL DISMISSED THIS APPEAL AS INFRUCTOUS AND THERE IS NO CLAIM IN THE M. P. THAT THERE IS ANY APPARENT MISTAKE IN THIS FINDING OF THE TRIBUNAL AN D THEREFORE, ONE M. P. AGAINST THE TRIBUNAL ORDER IN M. P. NO. 126/BANG/2018 IN ITA NO . 1432/B/2012 IS DISMISSED BECAUSE NO MISTAKE IS THERE IN THIS TRIBUNAL ORDER EVEN AS PER THIS M. P. 3. REGARDING THE REMAINING M. P. I.E. M. P. NO. 81/ B/2018, WE FIND THAT IN THIS M.P., THIS IS THE CONTENTION RAISED THAT THIS WAS THE CLAIM OF THE ASSESSEE THAT THE REASSESSMENT M. P. NOS. 81 & 126/BANG/2018 (IN ITA NOS. 1075 & 1432/BANG/2012) 2 ORDER PASSED BY THE A.O. IS BAD IN LAW BECAUSE NO S EPARATE ORDER WAS PASSED BY THE AO TO DISPOSE OF THE OBJECTIONS OF THE ASSESSEE AGA INST THE VALIDITY OF REASSESSMENT PROCEEDINGS. IT IS CONTENDED IN THIS M. P. THAT IN THIS VIEW OF THE MATTER, THE ASSESSMENT ORDER SHOULD HAVE BEEN QUASHED AS BAD IN LAW BUT THE TRIBUNAL HAS RESTORED BACK THE MATTER TO THE AO FOR FRESH DECISI ON AND THEREFORE, IT IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER BECAUSE THIS DECISION IS NOT IN LINE WITH THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF GKN DRIV ESHAFT (INDIA) LTD. VS. ITO, 259 ITR 19 AND THE JUDGMENT OF HONBLE KARNATAKA HIGH C OURT RENDERED IN THE CASE OF M/S DEEPAK EXTRUSIONS (P) LTD. VS. DCIT DATED 15.03.201 7. 4. LEARNED AR OF THE ASSESSEE SUBMITTED THAT SINCE THIS TRIBUNAL ORDER IS NOT IN LINE WITH THESE TWO JUDGMENTS, THERE IS AN APPARENT MISTAKE I N THE TRIBUNAL ORDER WHICH SHOULD BE RECTIFIES BY DECIDING THE MATTER IN LINE WITH TH ESE TWO JUDGMENTS. LEARNED DR OF THE REVENUE SUBMITTED THAT THE TRIBUNAL HAS MERELY REST ORED BACK THE MATTER AND THEREFORE, THERE IS NO APPARENT MISTAKE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT IT IS NOTED BY THE TRIBUNAL IN PARA 5 OF THE IMPUGNED TRIBUNAL ORDER THAT THE ASSE SSEE HAS NOT CO OPERATED WITH THE AO IN ASSESSMENT PROCEEDINGS AND FOR THIS REASON, T HE AO WAS COMPELLED TO PASS EX PARTE ORDER U/S 144 OF THE ACT. BECAUSE OF THIS, TH E TRIBUNAL CONSIDERED IT APPROPRIATE THAT THE MATTER SHOULD GO BACK TO THE AO FOR FRESH DECISION. IN THE LIGHT OF THESE FACTS, WE EXAMINE THE APPLICABILITY OF THESE TWO JUDGMENTS CITED IN THE M.P. FILED BY THE ASSESSEE. REGARDING THE JUDGMENT OF HONBLE KARNATA KA HIGH COURT RENDERED IN THE CASE OF M/S DEEPAK EXTRUSIONS (P) LTD. VS. DCIT (SU PRA), WE FIND THAT THIS IS NOT A REPORTED JUDGMENT AND NO CITATION IS GIVEN FOR THIS JUDGMENT. COPY OF THE JUDGMENT IS ALSO NOT FURNISHED WITH THE M.P. OR IN COURSE OF HE ARING AND THEREFORE, WE CANNOT EXAMINE THE APPLICABILITY OF THIS JUDGMENT. NOW, WE EXAMINE THE APPLICABILITY OF THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF GKN DRIVESHAFT (INDIA) LTD. VS. ITO (SUPRA). IN THIS CASE, IT WAS HELD THAT THE AO IS BOUND TO DISPOSE OF THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST THE REOPE NING BY PASSING A SPEAKING ORDER. NOW WE CONSIDER OTHER RELEVANT FACTS. AS PER THE AS SESSMENT ORDER, NOTICE U/S 148 WAS ISSUED ON 08.03.2010 AND SERVED ON THE ASSESSEE ON 09.03.2010 ASKING THE ASSESSEE TO FILE RETURN WITHIN 16 DAYS. BUT THE ASS ESSEE REQUESTED FOR TIME TO FILE RETURN OF INCOME. THE AO HAS NOTED IN ON PAGE 3 OF THE ASSESSMENT ORDER THAT EVEN M. P. NOS. 81 & 126/BANG/2018 (IN ITA NOS. 1075 & 1432/BANG/2012) 3 AFTER GRANTING OF TIME AS REQUESTED BY THE ASSESSEE , THE ASSESSEE HAS NEITHER FILED RETURN OF INCOME NOR FILED ANY REPLY. THE AO HAS IS SUED A NOTICE U/S 142 (1) ALSO ON 26.11.2010 AND THEREAFTER ALSO, THE AO ISSUED SEVER AL NOTICES AND LASTLY FIXED THE DATE ON 23.12.2010 ASKING THE ASSESSEE TO FILE RETURN OF INCOME AND TO APPEAR AND FURNISH DETAILS ASKED FOR AS PER NOTICE DATED 26.11.2010 BU T TILL LAST, RETURN OF INCOME WAS NOT FILED BY THE ASSESSEE. AS PER THIS JUDGMENT OF HON BLE APEX COURT RENDERED IN THE CASE OF GKN DRIVESHAFT (INDIA) LTD. VS. ITO (SUPRA) , THE NOTICEE I.E. THE ASSESSEE HAS TO FIRST FILE RETURN OF INCOME AND ONLY THEREAFTER, THE ASSESSEE CAN SEEK REASONS RECORDED BY THE AO AND THEREAFTER, OBJECTIONS CAN B E RAISED AND SUCH OBJECTIONS ARE TO BE DISPOSED OF BY THE AO IN RESPECT OF THE VALID ITY OF REASSESSMENT PROCEEDINGS. SINCE, NO RETURN WAS FILED BY THE ASSESSEE AS REQUE STED BY THE AO AS PER NOTICE U/S 148, THERE IS NO OCCASION OF SUBSEQUENT STEPS AS PE R THIS JUDGMENT I.E. REQUEST BY THE ASSESSEE TO THE AO TO PROVIDE COPY OF REASONS RECOR DED, PROVIDING OF THE REASONS BY THE AO TO THE ASSESSEE, RAISING OF OBJECTIONS BY TH E ASSESSEE AND ITS DISPOSAL BY THE AO BY WAY OF A SEPARATE ORDER. HENCE, EVEN IF THE R EASONS WERE NOT PROVIDED BY THE AO TO THE ASSESSEE, IT CANNOT BE SAID THAT THE AO H AS VIOLATED THE RATIO OF THIS JUDGMENT OF HONBLE APEX COURT. BUT IN THE PRESENT CASE, THE AO HAS PROVIDED THE REASONS AND ALSO DISPOSED OF THE OBJECTIONS ALTHOUG H NOT BY WAY OF A SEPARATE ORDER BUT IN THE BODY OF THE ASSESSMENT AND THE TRIBUNAL HAS ONLY RESTORED BACK THE MATTER TO THE FILE OF THE AO FOR AFRESH DECISION. UNDER TH ESE FACTS, IT IS CLEAR THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER. WE HOLD ACC ORDINGLY. 6. IN THE RESULT, BOTH THE M. PS. FILED BY THE ASSE SSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE D ATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (SUNIL KUMAR YADAV) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT M EMBER BANGALORE, DATED, THE 03 RD AUGUST, 2018. /MS/ M. P. NOS. 81 & 126/BANG/2018 (IN ITA NOS. 1075 & 1432/BANG/2012) 4 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.