ITO, Erode v. Shri M.Loganathan, Erode

ITA 1141/CHNY/2011 | 1994-1995
Pronouncement Date: 21-09-2011 | Result: Allowed

Appeal Details

RSA Number 114121714 RSA 2011
Assessee PAN ABPPL3412R
Bench Chennai
Appeal Number ITA 1141/CHNY/2011
Duration Of Justice 3 month(s) 3 day(s)
Appellant ITO, Erode
Respondent Shri M.Loganathan, Erode
Appeal Type Income Tax Appeal
Pronouncement Date 21-09-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 21-09-2011
Date Of Final Hearing 21-09-2011
Next Hearing Date 21-09-2011
Assessment Year 1994-1995
Appeal Filed On 17-06-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI BEFORE DR. O. K. NARAYANAN VICE PRESIDENT AND SHRI GEORGE MATHAN JUDICIAL MEMBER I.T.A. NOS. 1139 1140 1141 & 1142/MDS/2011 ASSESSMENT YEARS : 1994-95 & 1995-96 THE INCOME-TAX OFFICER WARD-I(3) ERODE. V. SHRI M. LOGANATHAN 141 KOTHUKARAR THOTTAM VEERAPPANCHATRAM ERODE-638 004. PAN : ABPPL3412R (APPELLANT) (RESPONDENT) A N D C.O. NOS. 107 108 109 & 111/MDS/2011 (IN ITA NOS. 1139 1140 1141 & 1142/MDS/2011) ASSESSMENT YEARS 1994-95 & 1995-96 SHRI M. LOGANATHAN V. THE INCOME-TAX OFFICER 141 KOTHUKARAR THOTTAM WARD-I(3) VEERAPPANCHATRAM ERODE. ERODE-638 004. (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY : SHRI SHAJI P. JACOB SR. DR ASSESSEE BY : SHRI S. SRIDHAR ADVOCATE DATE OF HEARING : 21-09 -2011 DATE OF PRONOUNCEMENT : 21-09-2011 O R D E R PER GEORGE MATHAN JUDICIAL MEMBER : ITA NOS. 1139 & 1140/MDS/2011 ARE APPEALS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(APPEALS)-I COIMBATORE IN APPEAL NOS. 115 & 116/09- I.T.A. NOS.1139 1140 1141 &1142/MDS/2011 AND CO 107 108 109 & 111/MDS/2011 2 10 DATED 30-03-2011 FOR THE ASSESSMENT YEARS 1994-9 5 AND 1995-96 RESPECTIVELY. ITA NOS. 1141 & 1142/MDS/2011 ARE APPEALS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(APPEALS)-I COIMBATORE IN APPEAL NOS. 147 & 148/08-09 DATED 30-03-2011 FOR THE ASSESSMENT YEARS 1994-95 A ND 1995-96 RESPECTIVELY. ITA NOS. 1139 & 1140/MDS/2011 ARE THE QUANTUM APPEA LS AND ITA NOS. 1141 & 1142/MDS/2011 ARE THE APPEALS AGAINST THE DELETION OF THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT 1961 (THE ACT FOR SHORT). CO NOS. 107 & 108/MDS/2011 ARE THE CROSS OBJECTIONS FILED BY TH E ASSESSEE IN THE REVENUES APPEALS IN ITA NOS. 1139 & 1140/MDS/2011 RESPECTIVE LY AND CO NOS. 109 & 111/MDS/2011 ARE THE CROSS OBJECTIONS FILED BY THE ASSESSEE IN THE REVENUES APPEALS IN ITA NOS. 1142 & 1141/MDS/2011 RESPECTIVE LY. AS ALL THE APPEALS AND THE CROSS OBJECTIONS RELATE TO THE SAME ASSESSEE AN D ARE INTER-CONNECTED ALL THE FOUR APPEALS OF THE REVENUE AND THE CROSS OBJECTION S OF THE ASSESSEE ARE DISPOSED OF BY THIS COMMON ORDER. 2. SHRI SHAJI P. JACOB LEARNED SR. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI S. SRIDHAR ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LEARNED DR THAT THE ASSE SSEE IS AN INDIVIDUAL. IT WAS THE SUBMISSION THAT FOR BOTH THE ASSESSMENT YEA RS 1994-95 AND 1995-96 NOTICE UNDER SECTION 148 HAD BEEN ISSUED ON THE ASS ESSEE ON 24-03-1998. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD FILED AN APPLI CATION BEFORE THE HON'BLE SETTLEMENT COMMISSION ON 23-12-1998 AND THE HON'BLE SETTLEMENT COMMISSION I.T.A. NOS.1139 1140 1141 &1142/MDS/2011 AND CO 107 108 109 & 111/MDS/2011 3 HAD PASSED AN ORDER ADMITTING THE APPLICATION UNDER SECTION 245D OF THE ACT ON 22-07-1999. IT WAS THE SUBMISSION THAT THE ASSESSM ENT ORDER WAS PASSED BY THE ASSESSING OFFICER ON 30-03-2000. IT WAS THE SUBMIS SION THAT THE ASSESSING OFFICER HAD PASSED THE ASSESSMENT ORDER AFTER THE ADMISSION OF THE SETTLEMENT APPLICATION ON 22-07-1999. IT WAS THE SUBMISSION T HAT IN VIEW OF THE PROVISIONS OF SECTION 245F(2) OF THE ACT THE EXCLUSIVE JURISDICT ION TO ASSESS THE ASSESSEE VESTS WITH THE SETTLEMENT COMMISSION ON ACCOUNT OF THE AD MISSION OF THE SETTLEMENT APPLICATION. IT WAS THE SUBMISSION THAT UNDER THE PROVISIONS OF SECTION 245F(1) OF THE ACT ALL THE POWERS OF THE INCOME-TAX AUTHORITIE S VESTED IN THE SETTLEMENT COMMISSION. IT WAS THE SUBMISSION THAT SUBSEQUENTL Y AS THE ASSESSEE HAD NOT PAID THE TAXES IN REGARD TO THE SETTLEMENT APPLICAT ION THE HON'BLE SETTLEMENT COMMISSION HAD REJECTED THE ASSESSEES SETTLEMENT A PPLICATION VIDE AN ORDER UNDER SECTION 245D(2B) OF THE ACT ON 03-09-2007. I T WAS THE SUBMISSION THAT THUS FROM 23-12-1998 BEING THE DATE OF APPLICATION BEFORE THE SETTLEMENT COMMISSION TILL 03-09-2007 BEING THE DATE ON WHICH THE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION ABATED THE JURISDICTION TO A SSESS THE ASSESSEE VESTED IN THE HON'BLE SETTLEMENT COMMISSION AND CONSEQUENTLY THE ASSESSMENT ORDER PASSED ON 30-03-2000 WAS AN INVALID ORDER. IT WAS THE SUBMISSION THAT CONSEQUENT TO THE ABATEMENT THE ASSESSING OFFICER H AD PASSED A FRESH ASSESSMENT ORDER ON 09-05-2008. IT WAS THE SUBMISS ION THAT AGAINST THE SAID ASSESSMENT ORDER DATED 09-05-2008 THE ASSESSEE HAD FILED APPEAL BEFORE THE I.T.A. NOS.1139 1140 1141 &1142/MDS/2011 AND CO 107 108 109 & 111/MDS/2011 4 LEARNED CIT(A) AND THE LEARNED CIT(A) HAD HELD THAT THE NOTICE ISSUED U/S. 148 OF THE ACT ON 24-03-1998 HAD CULMINATED IN THE ASSESSM ENT ORDER PASSED ON 30-03- 2000 AND CONSEQUENTLY THE ASSESSMENT ORDER PASSED O N 09-05-2008 WAS INVALID ON ACCOUNT OF THE NON-ISSUANCE OF ANY NOTICE OF REO PENING. IT WAS THE SUBMISSION THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING O FFICER ON 30-03-2000 WAS A NULLITY INSOFAR AS THE ASSESSMENT ORDER HAD BEEN PA SSED WHEN THE EXCLUSIVE JURISDICTION OVER THE ASSESSEE VESTED WITH THE SETT LEMENT COMMISSION. IT WAS THE SUBMISSION THAT THE ORDER OF THE LEARNED CIT(A) WAS LIABLE TO BE REVERSED. 4. IN REPLY THE LEARNED AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO AN ORDER DATED 21-02-2008 WHEREIN THE RENTAL INCOME OF THE ASSESSEE HAD BEEN ATTACHED ON ACCOUNT OF THE DEMAND RAISED BY THE ASS ESSING OFFICER FOR THE ASSESSMENT YEARS 1994-95 AND 1995-96 VIDE ASSESSMEN T ORDER DATED 30-03-2000. IT WAS THE SUBMISSION THAT CONSEQUENTLY IT WAS TO B E ACCEPTED THAT EVEN AS ON 21-02-2008 THE REVENUE WAS OF THE VIEW THAT THE ASS ESSMENT ORDER DATED 30-03- 2000 WAS A VALID ASSESSMENT ORDER. IT WAS THE SUBM ISSION THAT THE ORDER OF THE LEARNED CIT(A) WAS LIABLE TO BE UPHELD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ORDER OF THE LEARNED CIT(A) CLEARLY SHOWS THAT THE LEARNED CIT(A ) HAS NOT CONSIDERED THE PROVISIONS OF SECTION 245F(1) AND SECTION 245F(3). AS PER THE PROVISIONS OF SECTION 245F(2) THE EXCLUSIVE JURISDICTION OVER THE ASSESSEE OBVIOUSLY VESTED WITH THE HON'BLE SETTLEMENT COMMISSION FROM THE DATE OF FILING OF THE SETTLEMENT I.T.A. NOS.1139 1140 1141 &1142/MDS/2011 AND CO 107 108 109 & 111/MDS/2011 5 APPLICATION ON 22-07-1999 TILL THE DATE ON WHICH TH E ORDER UNDER SECTION 245D(2B) OF THE ACT WAS PASSED ON 03-09-2007 BY WHICH THE PR OCEEDINGS BEFORE THE HON'BLE SETTLEMENT COMMISSION ABATED. THIS CLEARLY SHOWS THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER ON 30-03-2000 COULD NOT BE TREATED AS A VALID ORDER INSOFAR AS THE ASSESSING OFFICER DID NO T HAVE THE JURISDICTION TO PASS THE ASSESSMENT ORDER ON 30-03-2000 IN VIEW OF THE P ROVISIONS OF SECTION 245F(2) OF THE ACT. THUS THE ASSESSMENT ORDER PASSED BY TH E ASSESSING OFFICER ON 30-03- 2000 WAS AN ORDER VOID AB NITIO ON ACCOUNT OF LACK OF JURISDICTION. IN THE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE FINDING OF THE LEARNED CIT(A) IS NOT ON A RIGHT FOOTING AND CONSEQUENTLY THE SAME IS REVERS ED. HOWEVER A PERUSAL OF THE ORDER OF THE LEARNED CIT(A) AS ALSO THE GROUNDS FIL ED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) SHOWS THAT THE LEARNED CIT(A) HAS NO T ADJUDICATED UPON ANY OF THE OTHER GROUNDS AS RAISED BEFORE THE LEARNED CIT( A). IN THE CIRCUMSTANCES GROUND NO.1 IN THE REVENUES APPEALS IN ITA NOS. 11 39 AND 1140/MDS/2011 STANDS ALLOWED AND THE ISSUES IN THESE APPEALS ARE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION ON THE OTHER GROUNDS AS RAISED BY THE ASSESSEE BEFORE THE LEARNED CIT(A). AS WE HAVE ALL OWED THE APPEALS OF THE REVENUE IN REGARD TO GROUND NO.1 RAISED BEFORE US THE APPEALS OF THE REVENUE IN ITA NOS. 1141 AND 1142/MDS/2011 IN RESPECT OF THE L EVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR THE RELEVANT ASSESSMENT YE ARS WOULD ALSO HAVE TO BE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR RE-A DJUDICATION AND WE DO SO. I.T.A. NOS.1139 1140 1141 &1142/MDS/2011 AND CO 107 108 109 & 111/MDS/2011 6 6. THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE I N SUPPORT OF THE ORDER OF THE LEARNED CIT(A) AND AS WE HAVE ALREADY ALLOWED THE R EVENUES APPEALS IN REGARD TO GROUND NO.1 RAISED BEFORE US AND REVERSED THE FI NDING OF THE LEARNED CIT(A) ON THE ISSUE THE CROSS OBJECTIONS FILED BY THE ASSESS EE IN C.O. NOS. 107 AND 108/MDS/2011 STAND DISMISSED. AS WE HAVE RESTORED THE ISSUE OF THE PENALTY UNDER SECTION 271(1)(C) FOR RE-ADJUDICATION BEFORE THE LEARNED CIT(A) IN THE REVENUES APPEALS IN ITA NOS. 1141 & 1142/MDS/2011 THE CROSS OBJECTIONS FILED BY THE ASSESSEE IN C.O. NOS. 109 & 111/MDS/2011 STA ND DISMISSED. 7. IN THE RESULT THE APPEALS OF THE REVENUE IN ITA NOS. 1139 1140 1141 & 1142/MDS/2011 STAND ALLOWED FOR STATISTICAL PURPOSE S. THE CROSS OBJECTIONS FILED BY THE ASSESSEE IN C.O. NOS. 107 108 109 & 111/MD S/2011 STAND DISMISSED. 8. THE ORDER WAS PRONOUNCED IN THE COURT ON 21-09-2 011. SD/- SD/- (DR. O. K. NARAYANAN) (GEORGE MATHAN) VICE PRESIDENT JUDICIAL MEMBER CHENNAI DATED THE 21 ST SEPTEMBER 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE