P.Sukumar, Elampillai v. ACIT, Coimbatore

ITA 1336/CHNY/2013 | 2006-2007
Pronouncement Date: 22-10-2013 | Result: Allowed

Appeal Details

RSA Number 133621714 RSA 2013
Assessee PAN NDENT1330T
Bench Chennai
Appeal Number ITA 1336/CHNY/2013
Duration Of Justice 4 month(s) 10 day(s)
Appellant P.Sukumar, Elampillai
Respondent ACIT, Coimbatore
Appeal Type Income Tax Appeal
Pronouncement Date 22-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 22-10-2013
Date Of Final Hearing 07-10-2013
Next Hearing Date 07-10-2013
Assessment Year 2006-2007
Appeal Filed On 11-06-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI BEFORE SHRI A.MOHAN ALANKAMONY ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD JUDICIAL MEMBER ITA NOS. ASSESSMENT YEARS APPELLANT RESPONDENT 1330 TO 1332/MDS/2013 2004-05 TO 2006-07 SHRI. P.SUNDARARAJ 12-2-9 SANNAN CHETTY STREET ELAMPILLAI PIN: 637 502 PAN:AIJPS2889L THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-II COIMBATORE . 1333/MDS/2013 2007-08 SHRI P.SUNDARARAJ HUF SALEM THE ACIT. CEN.CIR.II COIMBATORE . 1334 TO 1337/MDS/2013 2004-05 TO 2007-08 SHRI P.SUKUMAR 5/49 BAJANAI KOVIL STREET ELAMPILLAI-637 502 PAN:AIJPS3075L THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-II COIMBATORE . APPELLANT BY : MR. G.BASKAR ADVOCATE RESPONDENT BY : MR.SHAJI P.JACOB ADDL. CIT DATE OF HEARING : 7 TH OCTOBER 2013 DATE OF PRONOUNCEMENT : 22 ND OCTOBER 2013 O R D E R PER BENCH : ALL THESE APPEALS ARE FILED BY THESE TWO ASSESSEES WHO ARE BROTHERS FOR THE ASSESSMENT YEARS 2004-05 TO 2007-08 AGAINST THE COMMON ORDER OF THE COMMISSIONER OF INC OME TAX (APPEALS) II COIMBATORE DATED 20.03.2013. THE MAIN GROUND IN ALL THESE APPEALS OF THE ASSESSEES IS RAI SED AGAINST ITA NO.1330 TO 1337/MDS//2013 2 THE JURISDICTION OF THE ASSESSING OFFICER AT COIMBA TORE IN COMPLETING THE ASSESSMENTS. 2. THE COMMON GROUNDS RAISED BY BOTH THE ASSESSEES IN ALL THEIR APPEALS ON JURISDICTION ARE AS UNDER:- 1. THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT ASSESSING OFFICER AT SALE ALONE HAD JURISDICTION AND NOT THE OFFICER AT COIMBATORE WHO PASSED THE ORDER OF ASSESSMENT. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO TAKE NOTE THAT CBDT NOTIFICATION DATED 285/2006 DATED 10.10.2006 DOES NOT PERMIT ASSESSING OFFICER AT COIMBATORE TO MAKE ASSESSMENT U/S.143(3) EVEN UNDER CONCURRENT JURISDICTION. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO TAKE NOTE THAT QUESTION OF JURISDICTION CAN NEVER BE WAIVED NOR CREATED BY CONSENT. ONLY A PROCEDURAL PROVISION CAN BE WAIVED BY CONDUCT OR AGREEMENT. AIR 1975 SC 2065. 3. AT THE TIME OF HEARING THE COUNSEL FOR THE ASSE SSEE SUBMITS THAT IN ASSESSEES GROUP CASES THE CO-ORD INATE BENCH OF THIS TRIBUNAL HAD ALREADY CONSIDERED THE I SSUE OF JURISDICTION OF THE ASSESSING OFFICER IN COMPLETING THE ITA NO.1330 TO 1337/MDS//2013 3 ASSESSMENTS IN ALL THESE CASES PARTICULARLY IN THE CASE OF M/S. MKR PALANISAMY & SONS IN ITA NOS.1919 TO 1925/MDS/2 009 DATED 7 TH MAY 2012. THE COUNSEL FOR THE ASSESSEE ALSO SUBMITS THAT IN THE ABOVE GROUP CASES THIS TRIBUNA L DIRECTED THE REVENUE TO REDO THE ASSESSMENTS AFTER DETERMINA TION OF THE JURISDICTION OF THE AUTHORITY AND COMPLETE THE ASSESSMENTS. COPY OF THE ORDER IS PLACED BEFORE US. THE COUNSEL SUBMITS THAT IN VIEW OF THE ORDER OF THIS T RIBUNAL ALL THESE APPEALS OF THE ASSESSEES MAY BE REMITTED BACK TO THE DEPARTMENTAL AUTHORITIES IN LINE WITH THE DIRECTION S GIVEN BY THIS TRIBUNAL IN THE CASE OF M/S. MKR PALANISAMY & SONS. 4. THE DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION FOR REMITTING THE MATTERS TO THE ASSESSING OFFICER WITH SIMILAR DIRECTIONS AS GIVEN IN THE CASE OF M/S. MKR PALANIS AMY & SONS. 5. WE HAVE GONE THROUGH THE ORDER OF THE CO-ORDINAT E BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. MKR PALA NISAMY & SONS IN ITA NOS.1919 TO 1925/MDS/2009 DATED 7 TH MAY 2012 ITA NO.1330 TO 1337/MDS//2013 4 WHEREIN THIS TRIBUNAL HELD THAT THE ASSESSMENTS MAD E BY THE ASSESSING OFFICER AT COIMBATORE INSTEAD OF THE ASSE SSING OFFICER AT SALEM ARE NOT SUSTAINABLE. HOWEVER THE TRIBUNAL FURTHER HELD THAT THESE ASSESSMENTS MADE BY THE ASS ESSING OFFICER AT COIMBATORE ARE ONLY IRREGULAR ASSESSMENT S BUT NOT ILLEGAL AND VOID AB INITIO. THEREFORE THE CO-ORDINATE BENCH OF THIS TRIBUNAL HAD DIRECTED THE REVENUE TO REDO THE ASSESSMENTS AFRESH AFTER DETERMINING THE JURISDICTI ON OF THE AUTHORITY TO DO THE ASSESSMENTS. WHILE HOLDING SO THE TRIBUNAL OBSERVED AS UNDER:- 9. ON GOING THROUGH THE RECORDS OF THE CASE AND THE EARLIER ORDERS OF THE TRIBUNAL WE FIND THAT TH E TRIBUNAL HAS CONSIDERED EXACTLY THE VERY SAME ISSUE OF JURISDICTION IN THE APPEALS FILED BY THE CONNECTED PARTIES. THEREFORE AS IS THE DUTY OF A C O- ORDINATE BENCH WE HAVE TO GO BY THE DECISION ALREADY ARRIVED AT BY THE CO-ORDINATE BENCHES ON THE SUBJECT. THEREFORE WE FOLLOW THE FINDING OF TH E TRIBUNAL IN THE EARLIER ORDERS PASSED IN CONNECTED APPEALS THAT THE IMPUGNED ASSESSMENTS HAVE BEEN PASSED BY THE ASSISTANT COMMISSIONER OF INCOME- TAX CENTRAL CIRCLE II AT COIMBATORE WITHOUT JURISDICTION. ACCORDINGLY WE ALSO HOLD THAT THESE IMPUGNED ASSESSMENTS ARE NOT SUSTAINABLE. 10. BUT WE ALSO FIND THAT THESE IMPUGNED ASSESSMENTS ARE NOT SUSTAINABLE IN LAW ONLY BECAUSE OF PROCEDURAL LAPSES IN PINPOINTING THE ITA NO.1330 TO 1337/MDS//2013 5 JURISDICTION OF THE AUTHORITIES AND NOT BECAUSE OF ANY INHERENT LAPSE OF JURISDICTION. THERE IS NO CASE TH AT THE IMPUGNED ASSESSMENTS ARE UNSUSTAINABLE IN LAW FOR WANT OF ORIGINAL JURISDICTION. THE ORIGINAL JURISDICTION IS VERY MUCH THERE. BUT WHILE THE FIL ES WERE BEING TRANSFERRED FROM ONE ASSESSING AUTHORITY TO ANOTHER ASSESSING AUTHORITY ON THE STRENGTH OF T HE ORDERS PASSED BY THE HIGHER AUTHORITIES THE EXACT SPECIFICS OF FUNCTIONAL JURISDICTION HAVE NOT BEEN EXPLAINED IN THE LIGHT OF THE CONTEMPORANEOUS NOTIFICATIONS ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES AND APPOINTING OF THOSE AUTHORITIES. THIS LAC K OF CLARIFICATION MADE THE WHOLE AFFAIR INCONCLUSIV E ESPECIALLY IN VIEW OF THE CBDT CIRCULAR NO.285/2006 DATED 10-10-2006 WHEREIN THE SUBJECT MATTER OF CONCURRENT JURISDICTION WAS CONFINED TO ISSUANCE OF INTIMATION AND REFUND UNDER SECTION 143(1) AND ITS RECTIFICATION UNDER SECTION 154. 11. BUT WE FIND THAT THE VACUUM IS CREATED NOT BY SUBSTANTIVE STATUTE BUT BY PROCEDURES. AS THE INHERENT JURISDICTION TO ASSESS THESE FILES ARE VER Y MUCH WITH THE REVENUE THESE ASSESSMENT ORDERS CANNOT BE HELD AB INITIO VOID. AT THE MAXIMUM THESE ASSESSMENTS ARE ONLY IRREGULARITIES. THERE IS A GREAT DIFFERENCE BETWEEN AN ILLEGAL ORDER AND AN IRREGULAR ORDER. IN THE PRESENT CASE THESE IMPUGNE D ASSESSMENT ORDERS ARE ONLY IRREGULAR ORDERS AND THEY ARE NOT ILLEGAL ORDERS. 12. IRREGULARITIES CAN BE RECTIFIED AND MADE GOOD AND THE ASSESSMENTS COULD BE RESUSCITATED. 13. THEREFORE EVEN IF WE HOLD THAT THE IMPUGNED ASSESSMENTS ARE NOT SUSTAINABLE IN LAW THESE ASSESSMENT ARE NOT QUASHED. THEY ARE ONLY SET ASIDE. THE FILES ARE REMITTED BACK TO THE ASSESSING AUTHORITY AT SALEM WHO HAD THE ORIGINAL JURISDICTI ON OVER THIS ASSESSEE. THE ASSESSING AUTHORITY AT SALEM WHO HAD THE ORIGINAL JURISDICTION SHALL PLA CE THESE FILES BEFORE THE COMPETENT AUTHORITY FOR ITA NO.1330 TO 1337/MDS//2013 6 DECLARING THE JURISDICTION OF AN AUTHORITY UNDER TH E ACT TO MAKE ASSESSMENTS UNDER SECTION 143(3) READ WITH SECTION 153C OF THE ACT. THE COMPETENT AUTHORITY ONCE DECLARES THE JURISDICTION THE AUTHORIZED OFFICER SHALL PASS ASSESSMENT ORDERS UNDER SECTION 153C AFRESH AFTER HEARING THE ASSESSEE. IN SHORT WE ARE GIVING DIRECTION TO THE REVENUE TO REDO THE ASSESSMENTS AFTER DETERMINATION OF THE JURISDICTION OF THE AUTHORITY TO DO THE ASSESSMENTS IN THESE CASES. 14. WHILE GIVING THE ABOVE DIRECTION WE ARE CONCERNED ABOUT THE LIABILITY OF THE ASSESSEE UNDER SECTION 234B. IN THESE CASES THE FINAL CULMINATION OF ASSESSMENTS HAS BEEN DELAYED BY THE FACTORS CONTRIBUTED BY THE REVENUE ITSELF. THEREFORE THE ASSESSEE CANNOT BE CALLED UPON TO PAY INTEREST UNDER SECTION 234B FOR THE PERIOD OF DELAY CAUSED BY THE ACTIONS OF THE REVENUE. THEREFORE THE ASSESSING OFFICER ON COMPLETION OF THE ASSESSMENTS SHALL NOT LEVY INTEREST UNDER SECTION 234 IN A MECHANICAL WAY. HE SHALL GIVE THE ASSESSEE THE BENEFIT OF THE DELAY CAUSED BY THE ACTIONS OF THE REVENUE. 6. RESPECTFULLY FOLLOWING THE CO-ORDINATE BENCH DEC ISION WE DIRECT THE REVENUE TO REDO THE ASSESSMENTS AFTER DETERMINATION OF THE JURISDICTION OF THE AUTHORITY TO DO ASSESSMENTS IN THESE CASES ALSO. THE REVENUE MAY A LSO CONSIDER CHARGEABILITY OF INTEREST UNDER SECTION 23 4B IN THESE CASES ALSO IN LINE WITH THE DIRECTIONS GIVEN BY THE CO-ORDINATE ITA NO.1330 TO 1337/MDS//2013 7 BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. MKR PALA NISAMY & SONS (SUPRA). 7. IN THE RESULT ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY THE 22 ND DAY OF OCTOBER 2013 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY ) (CHALLA NAGENDRA PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI DATED THE 22 ND OCTOBER 2013. SOMU COPY TO: (1) APPELLANT (4 ) CIT(A) (2) RESPONDENT (5 ) D.R. (3) CIT (6 ) G.F.