PLL & PCL Joint Venture, Hyderabad V. ACIT, Cir-16(3), Hyderabad

MA 94/HYD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7211 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 30-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: V RAGHAVENDRA RAO
• Keywords: Opportunity of being heard
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER MA NO.113/H/2011 IN ITA NO.489/HYD/2006 ASSESSMENT 2002-03 ACIT, CIRCLE 16(3), HYD. VS M/S PLL & PCL JOINT VENTURE (AAAAP1577G) (APPLICANT) (RESPONDENT) MA NO.94/H/2011 IN ITA NO.489/HYD/2006 ASSESSMENT 2002-03 M/S PLL & PCL JOINT VENTURE VS DCIT, CIRCLE 16(2), HYD. (APPLICANT) (RESPONDENT) MA NO.114/H/2011 IN ITA NO. 490/HYD/2006 ASSESSMENT 2003-04 ACIT, CIRCLE 16(3), HYD. VS M/S PLL & PCL JOINT VENTURE (APPLICANT) (RESPONDENT) MA NO. 95/H/2011 IN ITA NO490/HYD/2006 ASSESSMENT 2003-04 M/S PLL & PCL JOINT VENTURE VS DCIT, CIRCLE 16(2), HYD. (APPLICANT) (RESPONDENT) MA NO.115/H/2011 IN ITA NO. 491/HYD/2006 ASSESSMENT 2004-05 ACIT, CIRCLE 16(3), HYD. VS M/S PLL&PCL JOINT VENTURE (APPLICANT) (RESPONDENT) MA NOS. 113/H/2011 & ORS M/S. PLL PCL JV & ORS.. ----------------------------------- 2 MA NO.96/H/2011 IN ITA NO491/HYD/2006 ASSESSMENT 2004-05 DCIT, CIRCLE 16(3), HYD. VS M/S PLL & PCL JOINT VENTURE (APPLICANT) (RESPONDENT) MA. 116/H/2011 IN ITA NO.409/HYD/2010 ASSESSMENT 2005-06 ACIT, CIRCLE 16(3), HYD. VS M/S PLL & PCL JOINT VENTURE (APPLICANT) (RESPONDENT) MA. 97/H/2011 ITA NO.409/HYD/2010 ASSESSMENT 2005-06 M/S PLL & PCL JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) MA NO.117/H/2011 IN ITA NO. 492/HYD/2006 ASSESSMENT 2002-03 ACIT, CIRCLE 16(3), HYD. VS M/S PCL & STICCO JOINT VENTURE (PAN AAAAP1488P) (APPLICANT) (RESPONDENT) MA NO.98/H/2011 IN ITA NO492/HYD/2006 ASSESSMENT 2002-03 M/S PCL & STICCO JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) M.A. NO.118/H/2011 IN ITA NO.493/HYD/2006 ASSESSMENT 2003-04 ACIT, CIRCLE 16(3), HYD. VS M/S PCL & STICCO JOINT VENTURE (APPLICANT) (RESPONDENT) MA NOS. 113/H/2011 & ORS M/S. PLL PCL JV & ORS.. ----------------------------------- 3 MA NO. 99/H/2011 IN ITA NO493/HYD/2006 ASSESSMENT 2003-04 M/S PCL & STICCO JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) MA NO.119/H/2011 IN ITA NO. 494/HYD/2006 ASSESSMENT 2004-05 ACIT, CIRCLE 16(3), HYD. VS M/S PCL & STICCO JOINT VENTURE (APPLICANT) (RESPONDENT) MA NO.100/H/2011 IN ITA NO. 494/HYD/2006 ASSESSMENT 2004-05 M/S PCL & STICCO JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) MA NO.120/H/2011 IN ITA NO150/HYD/2008 ASSESSMENT 2005-06 ACIT, CIRCLE 16(3), HYD. VS M/S PCL & STICCO JOINT VENTURE (APPLICANT) (RESPONDENT) MA NO.105/H/2011 IN ITA NO. 150/HYD/2008 ASSESSMENT 2005-06 M/S PCL & STICCO JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) MA NO.121/H/2011 IN ITA NO. 663/HYD/2010 ASSESSMENT 2006-07 ACIT, CIRCLE 16(3), HYD. VS M/S PCL & STICCO JOINT VENTURE (APPLICANT) (RESPONDENT) MA NOS. 113/H/2011 & ORS M/S. PLL PCL JV & ORS.. ----------------------------------- 4 MA NO.107/H/2011 IN ITA NO. 663/HYD/2010 ASSESSMENT 2006-07 M/S PCL & STICCO JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) MA NO.122/H/2011 IN ITA NO. 495/HYD/2006 ASSESSMENT 2002-03 ACIT, CIRCLE 16(3), HYD. VS M/S PLL & SUNCON JOINT VENTURE; PAN: AAAAP1497P (APPLICANT) (RESPONDENT) MA NO.101/H/2011 IN ITA NO. 495/HYD/2006 ASSESSMENT 2002-03 M/S PLL & SUNCON JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) MA NO.123/H/2011 IN ITA NO. 496/HYD/2006 ASSESSMENT 2003-04 ACIT, CIRCLE 16(3), HYD. VS M/S PCL & SUNCON JOINT VENTURE (APPLICANT) (RESPONDENT) MA NO.102/H/2011 IN ITA NO. 496/HYD/2006 ASSESSMENT 2003-04 M/S PCL & SUNCON JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) M.A.NO.124/HYD/2011 IN ITA NO. 497/HYD/2006 ASSESSMENT 2004-05 DCIT, CIRCLE 16(3), HYD. VS M/S PCL & SUNCON JOINT VENTURE (APPLICANT) (RESPONDENT) MA NOS. 113/H/2011 & ORS M/S. PLL PCL JV & ORS.. ----------------------------------- 5 M.A.NO.103/HYD/2011 IN ITA NO. 497/HYD/2006 ASSESSMENT 2004-05 M/S PCL & SUNCON JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) MA NO.125/H/2011 IN ITA NO. 149/HYD/2008 ASSESSMENT 2005-06 ACIT, CIRCLE 16(3), HYD. VS M/S PCL & SUNCON JOINT VENTURE (APPLICANT) (RESPONDENT) MA NO.104/H/2011 IN ITA NO.149/HYD/2008 ASSESSMENT 2005-06 M/S PCL & SUNCON JOINT VENTURE VS DCIT, CIRCLE 16(3), HYD. (APPLICANT) (RESPONDENT) MA.NO.126/H/2011 IN ITA NO. 662/HYD/2010 ASSESSMENT 2006-07 ACIT, CIRCLE 16(3), HYDERABAD VS M/S PCL & SUNCON JOINT VENTURE (APPLICANT) (RESPONDENT) MA.NO.106/H/2011 IN ITA NO. 662/HYD/2010 ASSESSMENT 2006-07 M/S PCL & SUNCON JOINT VENTURE VS DCIT, CIRCLE 16(3), HYDERABAD. (APPLICANT) (RESPONDENT) ASSESSEE BY: SHRI V. RAGHAVENDRA RAO REVENUE BY: SHRI B.V. PRASAD REDDY DATE OF HEARING: 09.09.2011 DATE OF PRONOUNCEMENT: 20.10.2011 MA NOS. 113/H/2011 & ORS M/S. PLL PCL JV & ORS.. ----------------------------------- 6 ORDER PER CHANDRA POOJARI, A.M. THESE 28 MISCELLANEOUS PETITIONS FILED BY THE ASS ESSEES AS WELL AS BY THE REVENUE ARE AGAINST THE ORDER OF THE TRIBUNAL DATED 29.10.2010 FOR THE ABOVE ASSESSMENT YEARS. 2. THE TRIBUNAL VIDE ORDER DATED 29.10.2010 DISPOS ED OFF THE ABOVE APPEALS ON JURISDICTIONAL ISSUE OVER THE FILE TRANSFERRED FROM CIT(A) VI TO CIT(A) IV, HYDERABAD. NOW THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED BEFORE US THAT THERE WAS NO JURISDICTIONAL ISSUE RAISED BY THE DEPARTMENT WI TH REFERENCE TO ITA NOS.409, 149, 150, 662 AND 663/HYD/2010 AND AS SUCH THE TRIBUNAL COMMITTED AN ERROR BY DECIDING THE ISS UE WHICH IS NOT BEFORE THE TRIBUNAL. ACCORDINGLY, HE PRAYED TO RECALL THE ABOVE ORDER IN RESPECT THESE APPEALS. 2.1 THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS A GREED WITH THE ABOVE CONTENTION OF THE LEARNED AR. 3. WE HAVE GONE THROUGH THE GROUNDS RAISED BY THE DEPARTMENT IN THE ABOVE APPEALS. AS FAR AS THESE A PPEALS ARE CONCERNED THERE IS NO GROUND BEFORE THE TRIBUNAL WI TH REGARD TO JURISDICTION OF CIT(A) VI. ADMITTEDLY, THE TRIBUNA L COMMITTED AN ERROR DECIDING ON THE JURISDICTIONAL ISSUE. ACCORD INGLY, WE RECALL THE ORDER OF THE TRIBUNAL W.R.T. THE ORDER DATED 29 .10.2010 ON THESE 5 APPEALS I.E. ITA NOS.409/HYD/10, 149/HYD/0 8, 150/HYD/08, 662/HYD/10 AND 663/HYD/2010 AND THE REG ISTRY IS DIRECTED TO POST THESE APPEALS FOR FRESH HEARING IN DUE COURSE. ACCORDINGLY, ASSESSEES MA NOS. 97/HYD/11, 104 TO 107/HYD/11 ARE ALLOWED. MA NOS. 113/H/2011 & ORS M/S. PLL PCL JV & ORS.. ----------------------------------- 7 4. FURTHER, THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT THERE IS AN ERROR IN THE ORDER U/S 1 27 OF THE IT ACT PASSED ON 27.10.2005 BY CCIT-II HYDERABAD. ACC ORDING TO THIS ORDER, THE ADDL. CIT-RANGE-7 WAS SHOWN AS THE ASSESSING OFFICER WHEREAS THE ASSESSING OFFICER WAS INCOME T AX OFFICER- 7(1) AS WOULD BE SEEN FROM THE APPELLATE ORDER FOR THE ASSESSMENT YEARS 2002-03 TO 2004-05 IN THESE 9 APPE ALS I.E. 489/HYD/2006, 490/HYD/2006, 491/HYD/2006, 492/HYD/ 2006, 493/HYD/ 2006, 494/HYD/2006, 495/HYD/2006, 496/HYD/2006 AND 497/HYD/2006. AS THERE IS AN ERRO R IN THE ABOVE ORDER BY THE CCIT-II, THERE IS ALSO A CORRESP ONDING ERROR IN THE ORDER OF THE TRIBUNAL DATED 29.10.2010 IN RE LYING ON THAT ORDER FOR DECIDING THE ISSUE OF JURISDICTION OF CIT (A)-VI . FURTHER, HE SUBMITTED THAT THE TRIBUNAL ALSO NOT TA KEN NOTICE OF THE NON COMMUNICATION OF THE ORDER U/S 127 TO THE A SSESSEE BY THE TIME THE APPEAL WAS DECIDED BY THE CIT(A)VI, H YDERABAD. THEREFORE, THE ASSESSEE HAD NOT AN OPPORTUNITY TO C ALL IN QUESTION THE JURISDICTION OF CIT(A)-IV WHEN THE APP EAL WAS BEING POSTED AND HEARD. THE ASSESSING OFFICER OR THE DCI T DID NOT ALSO BRING IT TO THE NOTICE OF THE CIT(A) -VI. ACC ORDINGLY, HE PRAYED FOR RECALLING THE ORDER OF THE TRIBUNAL IN R ESPECT OF THE REST OF THE 9 APPEALS ALSO. 5. THE LEARNED DR, WITH REGARD TO MAS FILED BY THE ASSESSEES, HE SUBMITTED AS FOLLOWS: I) AS PER SUB SECTION 1 OF SECTION 127, THE DIRECTOR G ENERAL OR CHIEF COMMISSIONER MAY AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER , WHEREVER IT IS POSSIBLE TO DO SO AND AFTER RECORDIN G HIS REASONS FOR DOING SO, TRANSFER ANY CASE FROM ONE OR MORE ASSESSING OFFICERS SUBORDINATE TO HIM (WHETHER WITH OR MA NOS. 113/H/2011 & ORS M/S. PLL PCL JV & ORS.. ----------------------------------- 8 WITHOUT CONCURRENT JURISDICTION) TO ANY OTHER ASSES SING OFFICER OR ASSESSING OFFICERS SUBORDINATE TO HIM WH ETHER WITH OR WITHOUT CONCURRENT JURISDICTION ALSO SUBORD INATE TO HIM. II) AS PER SUB SECTION (3) OF SECTION 127, NOTHING IN S UB SECTION (1) OR SUB SECTION (2) SHALL BE DEEMED REQU IRE ANY SUCH OPPORTUNITY TO BE GIVEN WHERE THE TRANSFER IS FROM ONE ASSESSING OFFICER OR ASSESSING OFFICERS SUBORDI NATE TO HIM WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION TO ANY OTHER ASSESSING OFFICER OR ASSESSING OFFICERS SUBORDINATE TO HIM WHETHER WITH OR WITHOUT CONCURRE NT JURISDICTION AND THE OFFICES OF ALL SUCH OFFICERS A RE SITUATED IN THE SAME CITY, LOCALITY OR PLACE. III) ACCORDING TO THE DR, FROM THE ABOVE, IT IS CLEAR TH AT THE ASSESSEE NEED NOT BE GIVEN ANY OPPORTUNITY OF BEING HEARD AS THE TRANSFER OF JURISDICTION WAS ORDERED WITHIN THE SAME CITY I.E., HYDERABAD. IV) HE SUBMITTED THAT A PERUSAL OF THE NOTIFICATION SHO WS THAT COPIES WERE MARKED TO ALL THE COMMISSIONERS OF INCO ME TAX. AS SUCH, THE CIT(A) VI, HYDERABAD CEASED TO H AVE JURISDICTION OVER THE CASE, THE MOMENT THE NOTIFICA TION CAME INTO EFFECT. THIS IS BECAUSE OF THE OPERATIVE PROVISIONS OF SECTION 127 WHICH STATE THAT THE TRAN SFER OF A CASE UNDER SUB SECTION 1 OR SUB SECTION 2 MAY BE MA DE AT ANY STAGE OF THE PROCEEDINGS. V) ACCORDING TO THE DR, THE ARGUMENT OF THE ASSESSEES THAT IN THE NOTIFICATION, THE ASSESSING OFFICER IS WRONG LY MENTIONED AS ADDITIONAL COMMISSIONER RANGE-7 WHEREA S THE ITO W-7 (1) WAS THE ASSESSING OFFICER IS MISPLA CED. HE SUBMITTED THAT THE ADDL. CIT HAS CONCURRENT JURISDICTION WITH THE ITO AND IN NO WAY DOES THIS C AST A DEFECT ON THE NOTIFICATION. THE DECISION OF THE TR IBUNAL IN MA NOS. 113/H/2011 & ORS M/S. PLL PCL JV & ORS.. ----------------------------------- 9 RESTORING THE FILE TO CIT(A) VI IS NOT PROPER. INS TEAD OF THIS, IT IS TO BE RESTORED TO CIT(A)-V, HYDERABAD. 6. FURTHER, THE LEARNED DR WITH REGARD TO MAS FILE D BY THE REVENUE SUBMITTED THAT THE TRIBUNAL WRONGLY MENTION ED THE DATE OF NOTIFICATION ISSUED BY THE CCIT-I, HYDERABA D WAS 27.8.2001 BUT NOT 27.8.2005. SECONDLY, AS PER THIS NOTIFICATION, THE CIT(A)-V, HYDERABAD HAS CONCURRENT JURISDICTION OVER THE ASSESSEE AND NOT CIT(A)-IV, HYDERABAD. AS SUCH, TH E OBSERVATION OF THE HONBLE ITAT THAT THE TERRITORY OF CIT(A)-VI CEASED TO HAVE JURISDICTION AND THE CIT(A)-IV ASSUM ES JURISDICTION UNDER THE VALID ORDER CITED SUPRA IS F ACTUALLY NOT CORRECT. AS PER THE NOTIFICATION, THE JURISDICTION OVER THE ASSESSEE VESTS WITH THE CIT(A)-V, HYDERABAD. IN VI EW OF THIS, THE CIT(A)-V, HYDERABAD CAN ONLY PASS THE ORDERS IN THE INSTANT CASE. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ADMITTEDLY, THE TRIBUNAL COMM ITTED AN ERROR IN PARA 8 OF THE ORDER CITED SUPRA. THE FOLL OWING PARA IS SUBSTITUTED IN THE PLACE OF EARLIER PARA 8: 8. AS PER THE NOTIFICATION DATED 27.8.2001, CIT(A)-V IS HAVING CONCURRENCE JURISDICTION OVER TH E ASSESSEES CASES AND HE SHALL REQUIRE TO PASS THE ORDERS IN THESE CASES. AS PER SECTION 127, IT IS PROVIDED THAT TRANSFER COULD BE MADE AT ANY STAGE O F THE PROCEEDINGS AND ONCE THE TRANSFER HAS BEEN MADE, THE JURISDICTION OVER THE ASSESSEES CHANGES AND THE PREVIOUS CIT(A) WHO HELD THE JURISDICTION OVER THE CASE WHETHER ON TERRITORIAL BASIS OR BY AN Y PREVIOUS ASSIGNMENT LOSES HIS JURISDICTION. THERE IS NO SUCH DISPUTE IN THESE CASES. AS AFTER THE NOTIFICATION CITED SUPRA, THE TERRITORY OF CIT(A)-V I CEASED TO HAVE JURISDICTION AND THE CIT(A)-V ASSUMES JURISDICTION FOR ALL PENDING MATTERS. WE ARE SATISFIED THAT THERE WAS A TRANSFER OF JURISDIC TION UNDER THE VALID ORDER CITED SUPRA. FOR THE PURPOSE OF FACILITATING THE ASSESSMENT, THIS TRANSFER ORDER IS MA NOS. 113/H/2011 & ORS M/S. PLL PCL JV & ORS.. ----------------------------------- 10 VALID FOR ALL PURPOSES AND IT IS TO BE ACTED UPON. HENCE THE CIT(A)-V CAN ONLY PASS ORDERS IN THESE CASES AND ORDERS PASSED BY CIT(A)-VI IS BAD IN LAW. ACCORDINGLY, WE SET ASIDE THESE CASES TO THE FILE O F CIT(A)-V TO DECIDE AFRESH IN ACCORDANCE WITH LAW. 8. ACCORDINGLY, THE RESULT IN EARLIER ORDER IS TO B E READ AS FOLLOWS: IN THE RESULT APPEALS FILED BY REVENUE IN ITA NOS. 489/HYD/2006, 490/HYD/2006, 491/HYD/2006, 492/ HYD/2006, 493/HYD/2006, 494/HYD/2006, 495/HYD/ 2006, 496/ HYD/2006 AND 497/HYD/2006 ARE ALLOWED FO R STATISTICAL PURPOSES. 9. IN VIEW OF THE ABOVE, ASSESSEES MAS IN 94, 95, 96, 98, 99, 100, 101, 102, 103/HYD/2011 (9) ARE DISMISSED. REVE NUE MAS IN 113, 114, 115, 117, 118, 119, 122, 123 AND 124/H YD/2011 (9) ARE ALLOWED. ASSESSEE MAS IN 97, 104, 105, 106 AND 107/HYD/2011 (5) ARE ALLOWED. REVENUE MAS IN 116, 1 20, 121, 125 AND 126/HYD/2011 (5) ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 20 TH OCTOBER, 2011. SD/- (G.C. GUPTA) SD/- (CHANDRA POOJARI) VICE PRESIDENT ACCOUNTANT MEMBER HYDERABAD, DATED THE 20 TH OCTOBER, 2011 COPY FORWARDED TO: 1. THE DCIT, CIRCLE 16(3), HYDERABAD 2. M/S PLL-PCL JOINT VENTURE (P) LTD., 65A, GROUND FLO OR, RP TOWERS, CHIRAG ALI LANE, ABIDS, HYDERABAD 3. M/S PCL & STICCO JOINT VENTURE, 65A, GROUND FLOOR, RR TOWERS, CHIRAG ALI LANE, ABIDS, HYDERABAD 4. M/S PCL & SUNCON JOINT VENTURE, HYDERABAD 5. THE CIT(A)-VI, HYDERABAD 6. THE CIT-VI, HYDERABAD 7. THE DR, ITAT, HYDERABAD TPRAO