Shri M.M. Talpada, Kheda v. The Income tax Officer,Ward-4,, Nadiad

ITA 179/AHD/2013 | 1995-1996
Pronouncement Date: 14-11-2014 | Result: Allowed

Appeal Details

RSA Number 17920514 RSA 2013
Assessee PAN ABDPT8326L
Bench Ahmedabad
Appeal Number ITA 179/AHD/2013
Duration Of Justice 1 year(s) 9 month(s) 27 day(s)
Appellant Shri M.M. Talpada, Kheda
Respondent The Income tax Officer,Ward-4,, Nadiad
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 14-11-2014
Date Of Final Hearing 10-11-2014
Next Hearing Date 10-11-2014
Assessment Year 1995-1996
Appeal Filed On 18-01-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI A.M.) I. T. A. NO. 179 / AHD/ 20 1 3 (A SSESSMENT YEAR: 1995 - 96) M.M. TALPADA Q - 3 GOVERNMENT COLONY MISSION ROAD NADIAD DIST: KHEDA V/S THE I.T.O. WARD - 4 NADIAD (APPELLANT) (RESPOND ENT) PAN: ABDPT 8326 L APPELLANT BY : SHRI K.C. THAKE R A.R. RESPONDENT BY : SHRI ROOP CHAND SR. D.R. ( )/ ORDER DATE OF HEARING : 10 - 11 - 2014 DATE OF PRONOUNCEMENT : 14 - 11 - 2014 PER SHRI ANIL CHATURVEDI A.M. 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - IV BARODA DATED 25.10.2012 FOR A.Y. 1995 - 96. 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS A N INDIVIDUAL STATED TO B E HAVING INCOME FROM SALARY. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 95 - 96 ON 21.03.1997 DECLARING TOTAL INCOME OF RS. 28 000/ - . THE ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DATED 28.03.1998 WHEREBY THE ADDITION OF RS. 5 97 000/ - WAS MADE TO THE RE TURN ED TOTAL INCOME. ITA NO 179/AHD/2013 . A.Y. 1995 - 96 2 AGGRIEVED BY THE ORDER OF A.O ASSESSEE CARRIED THE MATTER BEFORE CIT(A) AND SUBSEQUENTLY THE MATTER WAS CARRIED BEFORE HON BLE TRIBUNAL. HON BLE TRIBUNAL VIDE ORDER DATED 19.10.2007 GRANTED PARTIAL RELIEF AND SET ASIDE THE ORDER TO TH E FILE OF A.O FOR DECIDING THE ISSUE AFRESH AS PER THE DIRECTIONS CONTAINED THEREIN. PURSUANT TO THE DIRECTIONS OF TRIBUNAL A.O PASSED ORDER U/S 144 R.W.S. 250 OF THE ACT VIDE ORDER DATED 27.12.2010 AND THE TOTAL INCOME WAS DETERMINED AT RS. 5 28 100/ - . AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFOR E CIT(A) WHO VIDE ORDER DATED 25.10 2 012 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE A FORESAID ORDER OF CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GRO UNDS; - 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSMENT UNDER APPEAL BEFORE HIM WAS NOT MADE AFTER EXPIRY OF LIMITATION AND THAT THE SAME WAS NOT VOID - AB - INITIO THEREBY REJECTING THE JURISDICTIONAL GROUND RAISED BEFORE HIM. 2. THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACTS IN NOT INFORMING THE APPELLANT ABOUT HIS VIEW ON THE JURISDICTIONAL GROUND TAKEN BY THE APPELLANT AND IN NOT GIVING OPPORTUNITY TO MAKE SUBMISSIONS ON MERITS WITH REGARD TO THE ADDITION OF RS. 5 LACS AS A SPECIFIC GROUND CONTESTING THE ADDITION WAS TAKEN BEFORE HIM THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) OUGHT TO HAVE ANNULLED THE ASSESSMENT HAVING BEEN MADE AFTER EXPI RY OF LIMITATION AND/OR OUGHT TO HAVE GRANTED REASONABLE OPPORTUNITY TO THE APPELLANT TO MAKE SUBMISSIONS ON MERITS IN RESPECT OF THE ADDITION OF RS. 5 LACS . 4. BEFORE US LD. A.R. SUBMITTED THAT THE ASSESSEE IN THE PRESENT CASE CHALLENGES THE VALIDITY OF THE ORDER PASSED BY A.O. BEFORE US THE LD. A.R. SUBMITTED THAT THE HON BLE ITAT VIDE ORDER DATED 19.10.2007 HAD RESTORED THE ISSUE TO THE FILE OF A.O TO DECIDE THE ISSUE AFRESH AS PER THE DIRECTIONS GIVEN THEREIN. THE ORDER OF THE HON BLE TRIBUNAL WAS RE CEIVED BY CIT BARODA ON 13.03.2008 AND PURSUANT TO THE ORDER OF HON BLE TRIBUNAL T HE A.O PASSED A FRESH ASSESSMENT ORDER ON 27.12.2010. HE SUBMITTED THAT THE ORDER PASSED BY THE A.O WAS WITHOUT JURISDICTION AS IT WAS PASSED AFTER THE EXPIRY OF THE LIMIT ATION AVAILABLE AS PER SECOND PROVISO TO SECTION 153(2A). HE SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 153(2A ) T HE FRESH ASSESSMENT WAS REQUIRED TO BE PASSED BY A.O BEFORE THE EXPIRY OF 9 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER U/S 250 WAS RECEIVED BY THE COMMISSIONER AND THE REFORE THE FRESH ASSESSMENT ORD ER SHOULD HAVE BEEN PASSED ON OR BEFORE 31.12.2008. HE SUBMITTED THAT IN THE PRESENT CASE SINCE THE ORDER WAS PASSED ON 27.12.2010 I.E. BEYOND A PERIOD OF 2 YEARS AFTER THE EXP IRY OF L IMITATION PRESCRIBED UNDER THE ACT THE ORDER OF THE ITA NO 179/AHD/2013 . A.Y. 1995 - 96 3 A.O WAS VOID AB INITIO. IN SUPPORT OF THE AFORESAID CONTENTION HE ALSO PLACED RELIANCE ON THE DECISION IN THE CASE OF POORAN SINGH VS. ACIT ( 2006) 100 TTJ AGRA 1121 AND PLACED ON RECORD THE COPY OF THE AFORESAID ORDER. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE I T IS AN UNDISPUTED FACT THAT THE CO - ORDINATE BENCH OF TRIBUNAL VID E ORDER DATED 19.10.2007 HAD SET ASIDE THE ISSUE TO A.O AND HAD DIRECTED THE A.O TO DECIDE THE ISSUE AFRESH AS PER DIRECTIONS CONTAINED THEREIN. THE AFORESAID ORDER WAS RECEIVED BY THE COMMISSIONER ON 13.03.2008 AND THE FRESH ASSESSMENT U/S 144 R.W.S. 250 OF T HE ACT WAS PASSED BY THE A.O. ON 27.12.2010. AT THIS MOMENT SUB.SEC(2A) TO SECTION 153 OF THE ACT 2 ND PROVISO AS WELL AS EXPLANATION 1 TO SECTION 153 OF THE ACT WHICH ARE RELEVANT FOR THE PURPOSE OF DECIDING THE ISSUE READS AS UNDER: - 'SEC. 153. TIM E - LIMIT FOR COMPLETION OF ASSESSMENTS AND REASSESSMENTS X XXXX (2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SS. (1) (1A) (1B) AND (2) IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL 1971 AND ANY SUBSEQUENT ASSESSMENT YEAR AN ORD ER OF FRESH ASSESSMENT IN PURSUANCE OF AN ORDER UNDER S. 250 OR S. 254 OR S. 263 OR S. 264 SETTING ASIDE OR CANCELLING AN ASSESSMENT MAY BE MADE AT A NY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER S. 25 0 OR S. 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER OR AS THE CASE MAY BE THE ORDER UNDER S. 263 OR S. 264 IS PASSED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRIN CIPAL COMMISSIONER OR COMMISSIONER XX XXXX PROVIDED FURTHER THAT WHERE THE ORDER U/S. 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER OR AS THE CASE MAY BE THE ORDER U/S 263 OR SECTION 26 4 IS PASSED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER ON OR AFTER THE 1 ST DAY OF APRIL 2005 BUT BEFORE THE 1 ST DAY OF APRIL 2011 THE PROVISIONS OF THIS SUB - SECTION SHALL HAVE EFFECT AS IF FOR THE WORDS ONE YEAR THE WORDS NINE MONTHS HAD BEEN SUBST ITUTED. EXPLANATION 1 : IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF THIS SECTION (I) XXXXX (II) (II) THE PERIOD DURING WHICH THE ASSESSMENT PROCEEDING IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT OR.' 6. A PLAIN READING OF SUB - S. (2A) OF S. 153 O F THE ACT WOULD SHOW THAT WHERE AN ORDER UNDER S. 250 OF THE ACT IS PASSED IN APPEAL CANCELLING THE ASSESSMENT AN ORDER OF FRESH ASSESSMENT CAN BE PASSED AT ANY TIME BEFORE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER S. 250 OF THE ACT IS RECEIVED. 2 ND PROVISO STATES THAT WHEN T HE ORDER U/S 254 IS RECEIVED AFTER 1 ST APRIL ITA NO 179/AHD/2013 . A.Y. 1995 - 96 4 2005 BUT BEFORE 1 ST APRIL 2011 THE FRESH ASSESSMENT HAS TO BE MADE BEFORE THE EXPIRY OF NINE MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORD ER IS RECEIVED. EXPLANATION L(II) TO S. 153 OF THE ACT QUOTED ABOVE STATES THAT IN COMPUTING THE PERIOD OF SUCH LIMITATION FOR THE PURPOSE OF THIS SECTION THE PERIOD DURING WHICH THE ASSESSMENT PROCEEDING IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT S HALL BE EXCLUDED. THUS WHERE FRESH ASSESSMENT PROCEEDING HAS NOT BEEN STAYED BY AN ORDER OR INJUNCTION OF ANY COURT A FRESH ASSESSMENT ORDER PURSUANT TO AN APPELLATE ORDER UNDER S. 250 OF THE ACT CANCELLING THE ASSESSMENT HAS TO BE PASSED WITHIN NINE MON THS FROM THE END OF FINANCIAL YEAR IN WHICH ORDER UNDER S. 250 OF THE ACT IS RECEIVED. 7. IN THE PRESENT CASE THE UNDISPUTED FACTS ARE THAT THE ORDER OF CIT(A) FOR THE YEAR UNDER CONSIDERATION WAS SET ASIDE BY HON BLE ITAT ON 19.10.2007 AND IT WAS RECEIVED BY CIT ON 13.03.2008. IT IS ALSO A FACT THAT THE AFORESAID ORDER OF TRIBUNAL WAS NOT STAYED BY AN ORDER OR INJUNCTION OF ANY COURT. IN SUCH CIRCUMSTANCES THE TIME LIMIT FOR PASSING THE FRESH ASSESSMENT WAS BY 31.12.2008 BUT HOWEVER THE FRESH ASSESSMENT OR DER U/S 144 R.W.S. 250 OF THE ACT WAS PASSED BY THE A.O ON 27.12.2010 AND THEREFORE THE ORDER WAS PASSED WELL BEYOND THE TIME LIMIT PRESCRIBED U/S 153(2A) O F THE ACT. 8. W ALSO FIND THAT IN THE CASE OF POORA N SINGH VS. ACIT (2006) 100 TTJ (AGRA) 1121 THE C O - ORDINATE BENCH OF TRIBUNAL HAS HELD AS UNDER: - ASSESSMENT LIMITATION APPLICABILITY OF S. 1 53(2A) CLT(A) NOT SETTING ASIDE THE ASSESSMENT COMPLETELY BUT TWO ISSUES SENT BACK TO THE AO SO THAT THE AO CAN DETERMINE THE INCOME RELATING TO THOSE TWO ISSUES AN D THEREBY WORK OUT THE ASSESSED INCOME OF THE ASSESSEE PROVISIONS OF S. 153(2A) WILL APPLY TO SUCH A CASE IT IS NOT ESSENTIAL THAT THE WORD 'SET ASIDE' SHOULD BE WRITTEN IN THE ORDER WHERE THE DIRECTIONS OF APPELLATE AUTHORITY ARE SUCH THAT THEY CANNOT BE FOLLOWED BY THE AO WITHOUT CALLING THE ASSESSEE AND WITHOUT APPRECIATING THE VARIOUS EVIDENCES/DOCUMENTS THIS TANTAMOUNTS TO SETTING ASIDE THE ISSUE TO THE FILE OF THE AO FOR FRESH DECISION AND THE PROVISIONS OF S. 153(2A) ITA NO 179/AHD/2013 . A.Y. 1995 - 96 5 WILL APPLY CIT(A) HAVING RESTORE D THE ISSUES TO THE AO BY ORDER DT. 1ST JUNE 1989 ORDERS PASSED BY THE AO ON 31ST AUG. 1995 ARE BARRED BY LIMITATION UNDER S. 153(2A) 9. BEFORE US REVENUE HAS NEITHER BROUGHT ANY MATERIAL ON RECORD TO CONTROVERT THE SUBMISSIONS OF THE ASSESSEE NOR HAS BR OUGHT ANY BINDING DECISION IN ITS SUPPORT. SINCE THE FRESH ASSESSMENT ORDER HAS BEEN PASSED BY THE A.O AFTER 2 YEARS FROM THE EXPIRY OF THE TI ME LIMIT PRESCRIBED U/S 153(2A) W E ARE OF THE VIEW THAT THE ORDER PASSED BY T HE A.O WAS BARRED BY LIMITATION AND THUS THIS GROUND OF THE ASSESSEE IS ALLOWED. SINCE THE FRESH ASSESSMENT ORDER PASSED ITSELF HAS BEEN HELD TO BE BARRED BY LIMITATION T HE OTHER GROUNDS RAISED BY THE ASSESSEE ARE NOT ADJUDICATED. THUS THIS GROUND OF ASSESSEE IS ALLOWED. 10. IN THE RESULT T HE APPEAL OF THE ASSESSEE IS ALLOWED. ORD ER PRONOUNCED IN OPEN COURT ON 14 - 11 - 201 4 . SD/ - SD/ - (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEP UTY/ASSTT.REGISTRAR ITAT AHMEDABAD