RESPLENDA EXPRESSIONS PVT LTD., CHENNAI V. ITO CORPORATE WARD 5(4), CHENNAI

MA 93/CHNY/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4184 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 11 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 01-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Bogus purchase; Reassessment proceedings

Judgement Text

आयकर अपीलीय अिधकरण ‘डी’ Ɋायपीठ चेɄई मŐ। IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH, CHENNAI माननीय ŵी महावीर िसंह, उपाȯƗ एवं माननीय ŵी मनोज कु मार अŤवाल ,लेखा सद˟ के समƗ। BEFORE HON’BLE SHRI MAHAVIR SINGH, VICE PRESIDENT AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM M.A Nos.92 & 93/Chny/2020 (Arising out of ITA Nos.1363 & 1364/Chny/2019) (िनधाŊरण वषŊ / Assessment Years: 2010-11 & 2011-12) Resplenda Expressions Pvt. Ltd. No.138, Luz Church Road, Mylapore, Chennai – 600 004. बनाम/ Vs. ITO Corporate Ward-5(4), Chennai. ̾थायी लेखा सं./जीआइ आर सं./PAN/GIR No. AADCR-6466-M (अपीलाथŎ/Appellant) : (ŮȑथŎ / Respondent) अपीलाथŎ की ओरसे/ Appellant by : Shri T. Banusekar (C.A) – Ld. A.R ŮȑथŎ की ओरसे/Respondent by : Shri P. Sajit Kumar (JCIT) – Ld. D.R सुनवाई की तारीख/Date of Hearing : 27.05.2022 घोषणा की तारीख /Date of Pronouncement : 27.05.2022 आदेश / O R D E R Per Mahavir Singh, Vice President : 1. By way of these Miscellaneous Applications, the assessee seeks rectification of Tribunal order passed in captioned appeals vide common order dated 04.11.2019. In para 2.2 of the order, the bench has noted that against the reopening of assessment, the assessee had not raised any specific ground before Ld. CIT(A) and therefore, the assessee had accepted the reopening of the assessment which was done as per law. The bench further noted that the assessee had only raised common M.P Nos.92 & 93/Chny/2020 2 ground relating to addition made on account of bogus purchase. It was thus held that the assessee could not raise the ground which was not raised before the Ld. CIT(A). Accordingly, the ground raised by the assessee was dismissed. The issue, on merits, vide para-6 of the order, was send back to Ld. AO for fresh examination with certain directions. 2. The registry has noted a delay of 1 day in the applications, the condonation of which has been sought by the assessee on the strength of order of Hon’ble Supreme Court in Suo Motu Writ Petition SMW(c) No.3/2020 dated 23.03.2020 and subsequent orders passed from time to time. Finally, vide order dated 10.01.2022, the period starting from 15.03.2020 till 28.02.2022 has been excluded by Hon’ble Court while computing the period of limitation. Considering the same, the applications are within time and we proceed with the adjudication of the same. 3. The Ld. AR submitted that findings given by the bench in para 2.2 of the order are factually incorrect since a specific ground no.8 was raised by the assessee before Ld. CIT(A) which read as follows: - 8. The Assessing officer has believed the recorded statement of any person which was neither recorded by the Assessing Officer not in the presence of the appellant. The information on this behalf is a jurisdictional condition and its absence can vitiate the reassessment proceedings. Hence, the credibility of the statement is doubtful and suspicious. The Ld. AR also drew attention to the observations of Ld. CIT(A) in para- 6 of impugned order (common order for AYs 2010-11 & 2011-12) wherein Ld. CIT(A) has concurred with the adjudication of Ld. AO on all the issues raised including issue of reopening of assessment u/s 147. In the said background, Ld. AR submitted that the issue of reopening goes to the root of appeal and could validly be raised before Tribunal for the M.P Nos.92 & 93/Chny/2020 3 first time. Accordingly, Ld. AR pleaded for recalling of the orders for limited purpose of adjudication of legal grounds as raised in the appeals. The Ld. Sr. DR, on the other hand, submitted that all the issues have already been dealt with by the Tribunal in the order. 4. Having considered the contents of petitions and the arguments of Ld.AR, we concur that specific legal grounds were raised by the assessee before Tribunal, by way of ground nos. 2 to 5, in both the appeals. The bench fell in error by observing that the assessee had not raised any specific ground before Ld. CIT(A) which is found to be incorrect after perusal of order of Ld. CIT(A). Accordingly, the order stand recalled, for both the years, for the limited purpose of adjudication of legal grounds as contained in grounds nos. 2 to 5 of the appeals. 5. For the aforesaid purpose, the registry is directed to post the appeals before regular bench after intimating both the sides. 6. Both applications stands allowed. Order pronounced on 27 th May, 2022. Sd/- Sd/- (MANOJ KUMAR AGGARWAL) लेखा सद˟ / ACCOUNTANT MEMBER (MAHAVIR SINGH) उपाȯƗ /VICE PRESIDENT चेɄई Chennai; िदनांक Dated : 27-05-2022 EDN आदेशकीŮितिलिपअŤेिषत/Copy of the Order forwarded to : 1. अपीलाथŎ/Appellant 2. ŮȑथŎ/Respondent 3. आयकर आयुƅ (अपील)/CIT(A) 4. आयकर आयुƅ/CIT 5. िवभागीय Ůितिनिध/DR 6. गाडŊ फाईल/GF