TATA COMMUNICATIONS LTD ( FORMERLY VIDESH SANCHAR NIGAM LTD), MUMBAI v. JCIT SP. RG-1, MUMBAI

ITA 2201/MUM/2009 | 1988-1989
Pronouncement Date: 18-11-2011 | Result: Allowed

Appeal Details

RSA Number 220119914 RSA 2009
Assessee PAN AAACV2808C
Bench Mumbai
Appeal Number ITA 2201/MUM/2009
Duration Of Justice 2 year(s) 7 month(s) 10 day(s)
Appellant TATA COMMUNICATIONS LTD ( FORMERLY VIDESH SANCHAR NIGAM LTD), MUMBAI
Respondent JCIT SP. RG-1, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 18-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted I
Tribunal Order Date 18-11-2011
Date Of Final Hearing 03-11-2011
Next Hearing Date 03-11-2011
Assessment Year 1988-1989
Appeal Filed On 08-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI B.R. MITTAL (JUDICIAL MEMBER) AND SHRI P.M. JAGTAP (ACCOUNTANT MEMBER) ITA NO. 2201/MUM/2009 ASSESSMENT YEAR-1988-89 M/S. TATA COMMUNICATIONS LTD. (FORMERLY VIDESH SANCHAR NIGAM LTD) VIDESH SANCHAR BHAVAN M.G. ROAD FORT MUMBAI-400 001 PAN-AAACV 2808C VS. THE JCIT SPECIAL RANGE-1 AAYAKAR BHAVAN MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI DINESH VYAS RESPONDENT BY: SHRI SHANTAM BOSE DATE OF HEARING :03.11.2011 DATE OF PRONOUNCEMENT: 18.11.2011 O R D E R PER B.R. MITTAL JM : THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 1988-89 AGAINST ORDER OF LD. CIT(A) DT.30.01.2009. 2. ONE OF THE GROUND TAKEN BY ASSESSEE IS DISPUTING THE ACTION OF AO TO INVOKE PROCEEDINGS U/S. 147 OF THE I.T. ACT FOR REO PENING THE ASSESSMENT ON THE GROUND THAT THE CONDITION PRECEDENT FOR DOING S O ARE NOT SATISFIED AND THEREFORE ASSESSMENT MADE PURSUANT THERE TO SUFFERS FROM WANT OF JURISDICTION. 3. AT THE TIME OF HEARING LD. AR SUBMITTED THAT AO INITIATED THE REASSESSMENT PROCEEDINGS FOR ASSESSMENT YEARS 1988- 89 AND 1994-95 BY ISSUING NOTICE U/S. 148 OF THE ACT. THE ASSESSEE F ILED RETURN PURSUANT TO SAID NOTICE ISSUED U/S. 148 OF THE ACT AND REFERRED TO P AGE-4 OF THE PAPER BOOK WHICH IS A COPY OF LETTER DT. 3 RD MAY 1999 EVIDENCING THAT ASSESSEE FILED RETURNS FOR BOTH ASSESSMENT YEARS 1988-89 AND 1994- 95 WITH REFERENCE TO ITA NO. 2201/M/2009 2 NOTICES ISSUED U/S. 148 OF THE ACT ON 3 RD MAY 1999. THE LD. AR SUBMITTED THAT AO DID NOT GIVE COPY OF REASONS RECORDED TO AS SESSEE. HE SUBMITTED THAT THE SAME VERY ISSUE HAD BEEN CONSIDERED BY TRI BUNAL BY ITS ORDER DT. 30 TH OCTOBER 2009 IN ITA NO. 7626/M/2004 FOR ASSESSMENT YEAR 1994-95 AND TRIBUNAL VIDE PARA-16 OF SAID ORDER HAS HELD THAT A O HAS NOT FURNISHED THE REASONS TO ASSESSEE BEFORE CONCLUDING THE ASSESSME NT PROCEEDINGS MUCH LESS WITHIN THE REASONABLE PERIOD OF TIME AS MANDAT ED BY HONBLE SUPREME COURT AND ACCORDINGLY TRIBUNAL HELD THAT THE PROCEE DINGS ARE NULL AND VOID. THE LD. AR HAS FILED COPY OF SAID ORDER OF TRIBUNAL TO SUBSTANTIATE HIS SUBMISSION. HE SUBMITTED THAT DEPARTMENT FILED AP PEAL AGAINST SAID ORDER OF TRIBUNAL BEFORE HONBLE BOMBAY HIGH COURT BEING ITA NO. 4235 OF 2010. THE HONBLE BOMBAY HIGH COURT VIDE ITS ORDER DT. 20 TH JULY 2011 BY FOLLOWING THE ORDER IN THE CASE OF CIT VS FOMENTO RESORTS & HOTEL S LTD. INCOME TAX APPEAL NO. 71 OF 2006 HAS CONFIRMED THE ORDER OF TR IBUNAL. THE LD. AR SUBMITTED THAT THEIR LORDSHIPS HAS ALSO STATED IN T HE SAID ORDER DT. 20 TH JULY 2011 THAT SPECIAL LEAVE PETITION FILED BY REVENUE A GAINST THE DECISION IN THE CASE OF CIT VS FOMENTO RESORTS & HOTELS LTD. HAS A LSO BEEN DISMISSED BY HONBLE APEX COURT VIDE ORDER DT. 16 TH JULY 2007. THE LD. AR FURNISHED THE COPY OF SAID HONBLE JURISDICTIONAL HIGH COURT TO S UBSTANTIATE HIS SUBMISSION. LD. AR FURTHER SUBMITTED THAT FOLLOWING THE ORDER O F ASSESSMENT YEAR 1994- 95 APPEAL FILED BY ASSESSEE BE ALLOWED BY QUASHING THE REASSESSMENT FOR ASSESSMENT YEAR UNDER CONSIDERATION I.E. ASSESSMENT YEAR 1988-89. 4. HOWEVER LD. DEPARTMENTAL REPRESENTATIVE FILED C OPY OF LETTER DT. 1 ST JULY 2011 FROM OFFICE OF DY. COMMISSIONER OF INCOME TAX AND SUBMITTED THAT NO DOCUMENTS ARE AVAILABLE WITH RESPECT TO CORRESPO NDENCE REGARDING REASONS FOR REOPENING. HOWEVER IT COULD BE PRESUMED FROM ASSESSMENT ORDER THAT ASSESSEE WAS AWARE OF THE REASONS FOR REOPENING DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS. IN THE SAID IMPUGNED LETTER PARA 3.4 OF THE ORDER OF LD. CIT(A) HAS ALSO BEEN STATED VIDE WHICH LD. C IT(A) REJECTED GROUND OF APPEAL TAKEN BY ASSESSEE BEFORE HIM AND HELD THAT P ROCEEDINGS U/S. 147 HAS ITA NO. 2201/M/2009 3 BEEN VALIDLY INITIATED. HOWEVER LD. DR SUBMITTED THAT COPY OF REASONS RECORDED BY AO IS NOT AVAILABLE AND THEREFORE SAME COULD NOT BE PRODUCED. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSION OF L D. REPRESENTATIVES OF THE PARTIES AND THE ORDERS MENTIONED BY LD. AR (SUP RA) AND HAVE ALSO CAREFULLY CONSIDERED THE CONTENTS OF LETTER DT. 1 ST JULY 2011 FILED BY LD. DEPARTMENTAL REPRESENTATIVE. THERE IS NO DISPUTE TO THE FACT THAT FACTS AND ISSUE INVOLVED IN ASSESSMENT YEAR UNDER CONSIDERATI ON ARE IDENTICAL TO ASSESSMENT YEAR 1994-95. WE OBSERVE THAT IN RESPEC T OF ASSESSMENT YEAR 1994-95 TRIBUNAL HAS ALREADY CONSIDERED THIS ISSUE AND AFTER CONSIDERING THE SUBMISSION OF DEPARTMENT HAS HELD THAT NON FURNISHI NG OF REASONS TO ASSESSEE MAKES ASSESSMENT PROCEEDINGS NULL AND VOID. WE CON SIDER IT PRUDENT TO STATE PARAS 16 AND 17 OF THE SAID ORDER DT. 30 TH OCTOBER 2009 WHICH ARE AS UNDER: 16. THUS IN VIEW OF THE ABOVE DISCUSSION AND IN VI EW OF THE BINDING PRECEDENTS RESPECTFULLY APPLYING THESE PRO POSITIONS TO THE FACTS OF THE CASE AND AS THE AO HAS NOT FURNISH ED THE REASONS TO THE ASSESSEE BEFORE CONCLUDING THE ASSES SMENT PROCEEDINGS MUCH LESS WITHIN THE REASONABLE PERIOD OF TIME AS MANDATED BY THE HONBLE SUPREME COURT WE HAVE NO OT HER ALTERNATIVE BUT TO HOLD THAT THE PROCEEDINGS ARE NU LL AND VOID. 17. AS WE HAVE HELD THAT THE REOPENING IS BAD IN LA W FOR THE REASON OF NON FURNISHING OF REASONS RECORDED WE DO NOT GO INTO ALL OTHER ARGUMENTS RAISED IN THIS CASE ON THE ISSU E OF REOPENING AS THEY WOULD BE ACADEMIC IN NATURE. 5. WE ALSO OBSERVE THAT DEPARTMENT FILED APPEAL AGA INST SAID ORDER OF TRIBUNAL BEFORE HONBLE JURISDICTIONAL HIGH COURT B EING ITA NO. 4235 OF 2010 THE HONBLE JURISDICTIONAL HIGH COURT VIDE IT S ORDER DT. 20.7.2011 HAS CONFIRMED THE ORDER OF TRIBUNAL BY DISMISSING THE A PPEAL OF DEPARTMENT. WE CONSIDER IT PRUDENT TO REPRODUCE THE SAID ORDER OF HONBLE JURISDICTION HIGH COURT WHICH READS AS UNDER: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO;. 4235 OF 2010 ITA NO. 2201/M/2009 4 THE CIT-1 MUMBAI APPELLANT VS VIDESH SANCHAR NIGAM LTD. RESPONDENT MR. VIMAL GUPTA FOR THE APPELLANT MR. DINESH VYAS SENIOR ADVOCATE WITH MR. AJIT SHA H I/BY MR. SRIHARI IYER FOR THE RESPONDENT. CORAM : J.P. DEVADHAR & A.A. SAYED JJ DATE : 20 TH JULY 2011 P.C. 1. WHETHER THE TRIBUNAL WAS JUSTIFIED IN CANCELLING TH E REOPENING OF THE ASSESSMENT IS THE QUESTION RAISED IN THIS APPEAL. 2. THE FINDING OF FACT RECORDED BY THE INCOME TAX APPEL LATE TRIBUNAL IS THAT IN THE PRESENT CASE THE REASONS RE CORDED FOR REOPENING OF THE ASSESSMENT THOUGH REPEATEDLY A SKED BY THE ASSESSEE WERE FURNISHED ONLY AFTER COMPLETIO N OF THE ASSESSMENT. THE TRIBUNAL FOLLOWING THE JUDGMEN T OF THIS COURT IN THE CASE OF CIT VS FOMENTO RESORTS & HOTELS LTD. INCOME TAX APPEAL NO. 71 OF 2006 DECIDED ON 2 7 TH NOVEMBER 2006 HAS HELD THAT THOUGH THE REOPENING O F THE ASSESSMENT IS WITHIN THREE YEARS FROM THE END O F RELEVANT ASSESSMENT YEAR SINCE THE REASONS RECORDE D FOR REOPENING OF THE ASSESSMENT WERE NOT FURNISHED TO T HE ASSESSEE TILL THE COMPLETION OF ASSESSMENT THE REASSESSMENT ORDER CANNOT BE UPHELD. MOREOVER SPE CIAL LEAVE PETITION FILED BY THE REVENUE AGAINST THE DEC ISION OF THIS COURT IN THE CASE OF FOMENTO RESORTS & HOTE LS LTD. HAS BEEN DISMISSED BY THE APEX COURT VIDE ORDER DT. 16 TH JULY 2007. 3. IN THIS VIEW OF THE MATTER THE PRESENT APPEAL IS AL SO DISMISSED WITH NO ORDER AS TO COSTS. SD/- SD/- (A.A. SAYED J.) (J.P. DEVADHAR J) ITA NO. 2201/M/2009 5 6. CONSIDERING THE ABOVE FACTS AND THE FACTS THAT D EPARTMENT VIDE ITS LETTER DT. 1 ST JULY 2011 HAS CONFIRMED THAT NO CORRESPONDENCE IS AVAILABLE WITH RESPECT TO REASONS FOR REOPENING WE RESPECTFU LLY FOLLOWING THE EARLIER ORDER OF TRIBUNAL AND ORDER OF HONBLE JURISDICTION AL HIGH COURT DT. 12 TH JULY 2011 (SUPRA) HELD THAT FOR THE REASONS OF NON FURNI SHING REASONS RECORDED REASSESSMENT PROCEEDINGS ARE NULL AND VOID. THEREF ORE GROUND NO. 1 OF APPEAL TAKEN BY ASSESSEE DISPUTING REASSESSMENT PRO CEEDINGS IS ALLOWED. 7. SINCE ASSESSMENT HAS BEEN QUASHED WE DO NOT GO INTO ALL OTHER GROUNDS TAKEN BY ASSESSEE AS THEY WOULD BE ACADEMIC IN NATURE. 8. IN THE RESULT APPEAL FILED BY ASSESSEE IS ALLOWE D. ORDER PRONOUNCED ON THIS 18 TH DAY OF NOVEMBER 2011 SD/- SD/- ( P.M. JAGTAP) (B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 18 TH NOVEMBER 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR I BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR I.T.A.T MUMBAI