Green World Corporation, New Delhi v. ITO, New Delhi

ITA 1746/DEL/2009 | 2001-2002
Pronouncement Date: 14-05-2010 | Result: Allowed

Appeal Details

RSA Number 174620114 RSA 2009
Assessee PAN AAAFG6719Q
Bench Delhi
Appeal Number ITA 1746/DEL/2009
Duration Of Justice 1 year(s) 15 day(s)
Appellant Green World Corporation, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 14-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 14-05-2010
Date Of Final Hearing 04-05-2010
Next Hearing Date 04-05-2010
Assessment Year 2001-2002
Appeal Filed On 29-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C: NEW DELHI SHRI G.E. VEERABHADRAPPA HONBLE VICE-PRESIDENT AND SHRI C.L. SETHI JUDICIAL MEMBER ITA NO. 1746/DEL/2009 ASSESSMENT YEAR: 2001-02 GREEN WORLD CORPORATION M/S. PANKAJ JINDAL & CO. C.AS. 2 ND FLOOR 11/10 SHAKTI NAGAR NEW DELHI VS. THE INCOME TAX OFFICER WARD 19(3) NEW DELHI PAN: AAAFG 6719 Q APPELLANT RESPONDENT APPELLANT BY : SHRI ACHIN GARG ADVOCATE SHRI S.B. GARG CA RESPONDENT BY : SHRI A.K. PANDEY CIT DR O R D E R PER: C.L. SETHI J.M. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 13.03.2009 PASSED U/S. 263 OF THE INCOME TAX ACT 1961 (THE ACT) B Y THE CIT IN RESPECT OF THE ASSESSMENT ORDER DATED 15.11.2006 PASSED BY THE AO U/S. 143(3)/147 OF THE ACT FOR THE A.Y. 2001-02. 2. IN THE MEMORANDUM OF APPEAL THE ASSESSEE HAS RA ISED AS MANY AS NINETEEN GROUNDS OF APPEAL. HOWEVER AT THE TIME O F HEARING OF THIS APPEAL THE LD. COUNSEL FOR ASSESSEE SUBMITTED THAT ONLY GR OUND THAT THE ASSESSEE INTEND TO RAISE IS GROUND NO. 2 WHERE UNDER THE AS SESSEE HAS ASSAILED THE ITA NO. 1746/DEL/2009 PAGE 2 OF 7 ORDER OF THE CIT PASSED U/S. 263 OF THE ACT BY CONT ENDING THAT THE IMPUGNED ORDER DATED 13.03.2009 PASSED BY THE LD. CIT U/S. 2 63 OF THE ACT IS BAD IN LAW WITHOUT JURISDICTION AND VOID AB INITIO AND I S THUS LIABLE TO QUASHED. WE ARE THEREFORE CONCERNED WITH THE ISSUE AS TO WH ETHER THE IMPUGNED ORDER PASSED BY THE CIT IS VALID AND IS WITHIN HIS JURISD ICTION. 3. IN THIS CASE THE ASSESSEE FILED ITS RETURN OF I NCOME ON 24.10.2001 DECLARING A LOSS OF RS. 36 310/- AFTER CLAIMING THE DEDUCTION U/S. 80IB OF THE ACT. THE RETURN FILED BY THE ASSESSEE WAS PROCESSE D U/S. 143(1) ACCEPTING THE TOTAL INCOME AT RS. NIL. THEREAFTER THE CASE WAS REOPENED BY THE AO BY ISSUING A NOTICE DATED 19.07.2004 U/S. 148 OF TH E ACT AND THE ASSESSMENT CAME TO BE MADE U/S. 143(3)/147 ON 15.11.2006. DUR ING THE COURSE OF ASSESSMENT MADE U/S. 143(3)/147 OF THE ACT SOME AD DITIONS WERE MADE TO THE RETURNED INCOME SHOWN BY THE ASSESSEE. 4. AGGRIEVED BY THE AFORESAID OF THE AO THE ASSESS EE PREFERRED AN APPEAL BEFORE THE CIT(A) WHERE THE ASSESSEE HAD TA KEN A GROUND CHALLENGING THE VALIDITY OF PROCEEDINGS INITIATED U /S. 147 OF THE ACT. 5. THE LD. CIT(A) VIDE HIS ORDER DATED 31.03.2008 D ISPOSED OFF THE APPEAL WHERE THE CIT(A) UPHELD THE INITIATION OF PR OCEEDINGS U/S. 147 OF THE ACT TO BE VALID. ITA NO. 1746/DEL/2009 PAGE 3 OF 7 6. AGAINST THE AFORESAID ORDER OF THE LD. CIT(A) DA TED 31.03.2008 THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL WHICH WAS REGISTERED AS ITA NO. 890/DEL/2009. THE TRIBUNAL DECIDED THE SAID AP PEAL VIDE ORDER DATED 11.09.2009 BY HOLDING THAT THE REOPENING OF THE ASS ESSMENT MADE U/S. 147 OF THE ACT WAS WITHOUT JURISDICTION. THE TRIBUNAL THE N QUASHED THE ORDER MADE BY THE AO. IN THE MEAN TIME THE CIT VIDE HIS ORDE R U/S. 263 OF THE ACT DATED 13.03.2009 REVISED THE ASSESSMENT ORDER MADE BY THE AO WHICH IS APPEALED AGAINST BY THE ASSESSEE BEFORE US. NOW T HE QUESTION ARISES AS TO WHETHER THE CITS ORDER U/S. 263 OF THE ACT DATED 1 3.03.2009 IN THE LIGHT OF THE AFORESAID FACTS AND CIRCUMSTANCES IS SUSTAINAB LE IN THE EYES OF LAW. 7. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE MATE RIAL ON RECORD. 8. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT THE ORDER PASSED BY THE CIT U/S. 263 OF THE ACT ON 13.03.2009 IS INV ALID AND WITHOUT JURISDICTION IN THE LIGHT OF THE FACT THAT THE ASSE SSMENT ORDER DATED 15.11.2006 IN RESPECT OF WHICH THE CIT HAS PASSED T HE ORDER U/S. 263 IS NO LONGER SURVIVED AS THE SAME HAS BEEN QUASHED BY THE TRIBUNAL VIDE ORDER DATED 11.09.2009 BY HOLDING THE REASSESSMENT PROCE EDINGS U/S. 147 AS INVALID AND WITHOUT JURISDICTION. THE LD. COUNSEL FOR THE ASSESSEE PLEADED THAT WHEN THE ASSESSMENT ORDER IN RESPECT OF WHICH THE LD. CIT HAS EXERCISED ITA NO. 1746/DEL/2009 PAGE 4 OF 7 HIS REVISIONARY POWERS U/S. 263 OF THE ACT REMAINS NO MORE IN FORCE THE ORDER PASSED BY THE LD. CIT U/S. 263 BECOMES NULLIT Y AND INFRUCTUOUS. HE FURTHER INVITED OUR ATTENTION TO THE ORDER DATED 13 .11.2009 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES C N EW DELHI IN THE ASSESSEES OWN CASE PERTAINING TO THE A.Y. 2002-03 WHERE ALSO UNDER THE SIMILAR CIRCUMSTANCES THE ORDER OF THE LD. CIT DAT ED 13.03.2009 PASSED U/S. 263 OF THE ACT HAS BEEN HELD TO BE INVALID AND HAS BEEN QUASHED BY THE TRIBUNAL. 9. THE LD. DR ON THE OTHER HAND SUBMITTED THAT WH EN THE AOS ORDER PASSED U/S. 143(3)/147 ON 15.11.2006 HAS BEEN STAND S REVISED BY THE IMPUGNED ORDER U/S. 263 OF THE ACTDATED 13.03.2009 BY THE LD. CIT THE APPEAL PREFERRED BY THE ASSESSEE AGAINST THE SAME A SSESSMENT ORDER PENDING BEFORE THE TRIBUNAL SHOULD HAVE BEEN DISMISSED BY T REATING THE SAME AS INFRUCTOUS IN AS MUCH AS AT THE TIME WHEN THE TRIB UNAL PASSED THE ORDER ON 11.09.2009 THE ASSESSMENT ORDER PASSED BY THE AO D ID NOT SURVIVE ANY MORE. HE THEREFORE SUBMITTED THAT THE ORDER OF R EVISION PASSED BY THE LD. CIT U/S. 263 ON 13.03.2009 IS VALID AND WITHIN JURI SDICTION. 10. IT IS NOT IN DISPUTE THAT THE ASSESSMENT ORDER PASSED BY THE AO U/S. 143(3)/147 ON 15.11.2006 WAS APPEALED AGAINST BEFOR E THE LD. CIT(A) AND THEREAFTER AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE TRIBUNAL ITA NO. 1746/DEL/2009 PAGE 5 OF 7 AGAINST THE CIT(A)S ORDER DATED 31.03.2008 PASSED IN THE MATTER OF THE AFORESAID ASSESSMENT ORDER MADE U/S. 143(3)/147 OF THE ACT ON 15.11.2006 BY THE AO. IT IS ALSO AN ADMITTED POSITION THAT IN AN APPEAL SO FILED BY THE ASSESSEE BEFORE THE TRIBUNAL THE TRIBUNAL HAS QUAS HED THE ASSESSMENT BY HOLDING THAT REOPENING OF THE ASSESSMENT WAS WITHOU T JURISDICTION. THIS ORDER OF THE TRIBUNAL DATED 11.09.2009 QUASHING THE ASSESSMENT BY HOLDING THAT THE REOPENING OF THE ASSESSMENT WAS WITHOUT JU RISDICTION HAS NOT YET BEEN MODIFIED OR REVISED OR SET ASIDE OR HAS BEEN S TAYED BY ANY HIGHER APPELLATE FORUM. THEREFORE IN SO FAR THE POSITION AS IT STANDS TODAY THE TRIBUNALS ORDER DATED 11.09.2009 CARRIES ITS EFFEC T IN THE EYES OF LAW. AN IDENTICAL SITUATION HAD ARISEN IN THE A.Y. 2002-03 WHERE ALSO THE ASSESSMENT ORDER PASSED BY THE AO U/S. 143(3)/147 ON 15.11.200 6 WAS QUASHED BY THE TRIBUNAL VIDE ORDER DATED19.06.2009 IN ITA NO. 950/ DEL/2009 AND THE REVISIONAL ORDER PASSED BY THE LD. CIT U/S. 263 ON 13.03.2009 WAS HELD TO BE INVALID VIDE ORDER DATED 13.11.2009 IN ITA NO. 1854 /DEL/2009. THE RELEVANT OPERATIVE PORTION OF THE TRIBUNAL ORDER DATED 13.11 .2009 IN ITA NO. 1854/DEL/2009 PERTAINING TO THE A.Y. 2002-03 RUNS A S UNDER:- 9. IF WE READ THE ABOVE OBSERVATIONS AND ABOVE PARA IT IS CLEAR THAT THE IMPUGNED ASSESSMENT DOES NOT SURVIVE AS IT HAS BEEN QUASHED BY THE TRIBUNAL VIDE ITS ORDER DATED 19.06.2009. THE POWER U/S. 263 HAS BEE N EXERCISED BY LD. COMMISSIONER IN RESPECT OF IMPUGNE D ASSESSMENT WHICH IS NO MORE IN EXISTENCE. IF THE V ERY BASIS ITA NO. 1746/DEL/2009 PAGE 6 OF 7 IS REMOVED THEN THE ORDER U/S. 263 DOES NOT HAVE AN Y LEGS TO STAND. LD. CIT(DR) HAS ARGUED BEFORE US TO POST PONE THE HEARING OF THIS APPEAL ON THE GROUND THAT DEPAR TMENT HAS FILED A REVIEW PETITION BEFORE HONBLE SUPREME COURT FOR SEEKING CERTAIN CLARIFICATION IN RESPECT OF DEC ISION OF HONBLE SUPREME COURT IN THE CASE OF ASSESSEE NAMEL Y CIT VS. GREEN WORLD CORPORATION (SUPRA). HERE WE MENTI ON THAT APPEAL CANNOT BE KEPT PENDING BEFORE TRIBUNAL AS ON TODAY THE EXISTENCE ORDER OF HONBLE SUPREME COURT IN AN ORDER DATED 6 TH MAY 2009. IF DEPARTMENT IS ABLE TO GET CERTAIN CLARIFICATION WHICH MAY EFFECT THE ORDER OF THE TRIBUNAL DATED 19.06.2009 IN WHICH IMPUGNED ASSESS MENT HAS BEEN QUASHED THEN THE SAID ORDER OF THE TRIBUN AL HAS TO BE AMENDED ACCORDINGLY. THEREFORE THERE IS NO POINT IN KEEPING PENDING THE PRESENT APPEAL AS THE ORDER OF THE TRIBUNAL HAS TO BE AMENDED ACCORDING TO THE DECISIO N OF HONBLE SUPREME COURT. AS ON TODAY THE POSITION IS THAT THE IMPUGNED ASSESSMENT HAS ALREADY BEEN QUASHED ON THE GROUND OF INVALIDITY OF REASSESSMENT PROCEEDING. THEREFORE THERE IS NO ROOM FOR SUBSISTENCE OF ORDE R PASSED BY CIT U/S. 263 IN RESPECT OF AN REASSESSMENT WHI CH HAS ALREADY QUASHED BY ITAT CANNOT BE HELD TO BE VALID AND HAS TO BE QUASHED. ACCORDINGLY ORDER U/S. 263 IS QUASHED. 12. RESPECTFULLY FOLLOWING THE AFORESAID DECISION O F CO-ORDINATE BENCH IN THE ASSESSEES OWN CASE WE HOLD THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT U/S. 263 ON 13.03.2009 IN RESPECT OF THE ASSESS MENT ORDER MADE BY THE AO U/S. 143(3)/147 OF THE ACT ON 15.11.2006 IS INVA LID AND WITHOUT JURISDICTION IN AS MUCH AS THE ASSESSMENT ORDER IN RESPECT OF WHICH THE LD. CIT HAS EXERCISED HIS POWERS U/S. 263 OF THE ACT D OES NOT SURVIVE ANY MORE IN THE LIGHT OF THE TRIBUNALS ORDER 11.09.2009 QU ASHING THE REASSESSMENT PROCEEDINGS AS INVALID. THE TRIBUNALS ORDER DATED 11.09.2009 QUASHING THE ITA NO. 1746/DEL/2009 PAGE 7 OF 7 PROCEEDINGS INITIATED BY THE AO U/S. 147 OF THE ACT GOES BACK TO THE DATE WHEN THE AO ASSUMED HIS JURISDICTION U/S. 147 OF TH E ACT AND ISSUED NOTICE U/S. 148 OF THE ACT. WE THEREFORE QUASH THE ORDE R PASSED BY THE LD. CIT U/S. 263 ACCORDINGLY. 13. THE OTHER ISSUES RAISED IN THIS APPEAL WERE NOT ADDRESSED. THEREFORE WE DO NOT ADJUDICATE THE SAME. 14. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AS INDICATED ABOVE. 15. THIS DECISION IS PRONOUNCED IN THE OPEN COURT O N 14 TH MAY 2010. SD/- (G.E. VEERABHADRAPPA) VICE-PRESIDENT SD/- (C.L. SETHI) JUDICIAL MEMBER DATED: 14 TH MAY 2010 *NITASHA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT NEW DELHI. BY ORDER DEPUTY REGISTRAR