Gujarat Industrial Security Force Society,, Ahmedabad v. The DIT(Exemp.), Ahmedabad

ITA 2725/AHD/2010 | 2004-2005
Pronouncement Date: 30-04-2015 | Result: Allowed

Appeal Details

RSA Number 272520514 RSA 2010
Assessee PAN AAAAG0372L
Bench Ahmedabad
Appeal Number ITA 2725/AHD/2010
Duration Of Justice 4 year(s) 7 month(s) 8 day(s)
Appellant Gujarat Industrial Security Force Society,, Ahmedabad
Respondent The DIT(Exemp.), Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 30-04-2015
Date Of Final Hearing 27-04-2015
Next Hearing Date 27-04-2015
Assessment Year 2004-2005
Appeal Filed On 21-09-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER ./ ITA NO. 2725/AHD/2010 / ASSESSMENT YEAR: 2004-05 GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY NEAR NEW MENTAL HOSPITAL MEGHANINAGAR AHMEDABAD PAN : AAAAG 0372 L . APPELLANT VS. DCIT (EXEMPTION) AHMEDABAD . RESPONDENT ASSESSEE(S) BY : SHRI TUSHAR P. HEMANI AR REVENUE BY : SMT SONIA KUMAR SR. DR !'/ DATE OF HEARING : 27/04/2015 $% !' /DATE OF PRONOUNCEMENT: 30/04/2015 &' &' &' &'/ // / O R D E R PER SHAILENDRA KUMAR YADAV JUDICIAL MEMBER: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S)-XXI AHMEDABAD DATED 15.07.2010 FOR ASSESSMENT YEAR 2004 -05 ON THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT (A) HAS GROSSLY ERRED IN JAW AND ON THE FACTS IN NOT ADJUDICATING THE GROUND CHALLENGING AC TION OF AO IN FRAMING ASSESSMENT U/S.143 (3) R.W.S. 147 OF THE ACT ITA NO. 2725/AHD/2010 GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY V. DCIT AY 2004-05 - 2 - WITHOUT DISPOSING OFF THE OBJECTIONS RAISED BY THE APPELLANT BY PASSING A SPEAKING ORDER AND ERRED FURTHER IN NO T APPRECIATING THE FACT THAT ALL THE RELEVANT MATERIA L WAS DISCLOSED IN THE ORIGINAL RETURN OF INCOME AND MERE CHANGE OF OPINION DOES NOT EMPOWER THE ASSESSING OFFICER T O REOPEN CONCLUDED ASSESSMENT. THE ORDER OF ID CIT ( A) BEING UNJUST UNFAIR AND AGAINST PRINCIPLES OF NATU RAL JUSTICE DESERVES TO BE QUASHED. 2. THE LEARNED CTT (A) HAS GROSSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING ACTION OF THE AO IN DISALLOWING A SUM O F RS. 43 12 725A UNDER THE PROVISIONS OF SECTION 2(24)(X) R .W.S. 36(1)(VA) OF THE ACT. BOTH THE LOWER AUTHORITIES HA VE ERRED IN NOT CORRECTLY APPRECIATING THE FACT THAT OUT OF TOT AL DISALLOWANCE A SUM OF RS. 1 97 618/- WAS EMPLOYER'S CONTRIBUTION THAT FALLS UNDER THE PROVISIONS OF SEC TION 43B OF THE ACT. BOTH THE LOWER AUTHORITIES ERRED IN NOT APPRECIATING THE FACT THAT THE CONTRIBUTIONS DISALL OWED WERE DEPOSITED BEFORE DUE DATE OF FILING OF RETURN OF IN COME AND FURTHER ERRED IN NOT FOLLOWING THE RATIO OF VARIOUS JUDGMENTS AND DECISIONS RELIED UPON BY THE APPELLANT. THE ORD ER OF LD. CIT (A) OUGHT BE QUASHED AND DISALLOWANCE DESERVES TO BE DELETED. 3. THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING ACTION OF AO IN DISALLOWING PROVISION OF RS. 90 2127- MADE FOR PAYMENT OF BONUS BY THE APPELLANT. L D. CIT (A) OUGHT TO HAVE ALLOWED THE SAME. 4. THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING ACTION OF AO IN DISALLOWING RS.1 16 910/ - AS PRIOR PERIOD EXPENSES OF ESIC CONTRIBUTION WITHOUT APPRECIATING THE FACT THAT OUT OF THE TOTAL A SUM O F RS. 94 0277- PERTAINING TO FEBRUARY & MARCH 2003 WERE ALLO WABLE ON PAYMENT BASIS UNDER PROVISIONS OF SECTION 43B OF THE ACT. THE ORDER OF ID. CIT (A) OUGHT TO BE QUASHED A ND EXPENSES BE ALLOWED. 5. INITIATION OF PENALTY U/S 271(L)(C) OF THE ACT IS NOT JUSTIFIED. ITA NO. 2725/AHD/2010 GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY V. DCIT AY 2004-05 - 3 - 2. WITH REGARD TO GROUND NO.1 THE LD. AUTHORIZED REPRESENTATIVE POINTED OUT THAT THE ASSESSING OFFIC ER HAS ERRED IN NOT DISPOSING OFF THE OBJECTIONS RAISED BY THE A SSESSEE BEFORE PASSING THE RE-ASSESSMENT ORDER AS PER LAW AS LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFT S (INDIA) LTD VS. ITO REPORTED IN [2003] 259 ITR 19 (SC). TH E STAND OF THE ASSESSEE HAS BEEN THAT THE REASSESSMENT ORDER W ITHOUT DEALING WITH THE OBJECTIONS IS A NULLITY AND THEREF ORE SAME IS TO BE QUASHED. HE FURTHER SUBMITTED THAT SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT MOTORS INDIA LTD V. DCIT (354 ITR 244) (GUJ.). SUB SEQUENTLY THE SAME ISSUE HAS BEEN DECIDED BY HONBLE ITAT B BENCH AHMEDABAD IN THE CASE OF M/S. BHARUCH ENVIRO INFRAS TRUCTURE LTD VS. DCIT IN ITA NOS. 731 & 732/AHD/2007 FOR ASS ESSMENT YEARS 2000-01 & 2001-02 BY OBSERVING AS UNDER:- 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE REASONS FOR RE-OPENING OF ASSESSMENT U/S. 147 OF TH E ACT WAS RECORDED ON 31.03.2005 AND THE SAME WERE COMMUNICATED TO THE ASSESSEE BY ACIT VIDE LETTER DA TED 09.01.2006. IN RESPONSE TO THE NOTICE FOR REOPENING ASSESSEE VIDE ITS LETTER DATED 11.01.2006 HAD OBJEC TED TO INITIATION OF RE-ASSESSMENT. BEFORE US LD. A.R. SU BMITTED THAT THAT THE ASSESSEE'S OBJECTION TO REASSESSMENT PROCEEDINGS WERE NOT PASSED BY A SEPARATE ORDER BUT WERE DISPOSED BY THE A.O IN THE ASSESSMENT ORDER DATED 22.03.2006 PASSED U/S. 143(3) R.W.S. 147 OF THE ACT AND THIS FACT HAS NOT BEEN CONTROVERTED BY REVENUE. WE FIND THAT THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA PVT. LTD. (SUPRA) HAS HELD AS UNDER:- ITA NO. 2725/AHD/2010 GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY V. DCIT AY 2004-05 - 4 - 23 ....... A.O IS MANDATED TO DECIDE THE OBJECTION TO THE NOTICE U/S. 148 AND SUPPLY OR COMMUNICATE IT TO THE ASSESSEE. THE ASSESSEE GETS AN OPPORTUNITY TO CHALLENGE THE ORDER IN A WRIT PETITION. THEREAFTER THE A.O MAY PASS THE RE-ASSESSMENT ORDER. WE HOLD THAT IT WAS NOT OPEN TO THE A.O TO DECIDE THE OBJECTION TO NOTICE U/S/ 148 BY A COMPOSITE ASSESSMENT ORDER. ASSESSING OFFICER WAS REQUIRED TO FIRST DECIDE THE OBJECTION OF THE ASSESSEE FILED U/S. 148 AND SERVE A COPY OF THE ORDER OF THE ASSESSEE AND AFTER GIVING REASONABLE TIME TO THE ASSESSEE FOR CHALLENGING HIS ORDER IT WAS OPEN TO HIM TO PASS AN ASSESSMENT ORDER. THIS WAS NOT DONE BY THE A.O THEREFORE THE ORDER ON THE OBJECTION TO THE NOTICE U/S. 148 OF TH E ASSESSMENT ORDER PASSED UNDER THE ACT DESERVED TO BE QUASHED'. 9. BEFORE US REVENUE HAS NOT BROUGHT ANY CONTRARY BINDING DECISION OF HON'BLE APEX COURT OR HON'BLE JURISDICTIONAL HIGH COURT IN SUPPORT OF 5 ITA NO 73 1 & 732/AHD/2007 . A.YS. 2000-01 & 2001-02 ITS CONTENTI ON THAT THE ORDER DISPOSING OF THE OBJECTIONS OF THE A SSESSEE TO REASSESSMENT PROCEEDINGS ALONG WITH THE ASSESSMENT ORDER IS IN ORDER AND THEREFORE VALID AS PER LAW. W E THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID DEC ISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF GENERAL M OTOR INDIA PVT. LTD. (SUPRA) QUASH THE ASSESSMENT ORDER DATED 22.03.2006. SINCE THE RE-ASSESSMENT ITSELF HAS BEEN QUASHED THE GROUNDS RAISED ON MERITS ARE NOT DECID ED. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWED. 2.1 IN THIS REGARD THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT HE HAS RAISED THIS LEGAL SUBMISSION BY WAY OF WRITTEN SUBMISSIONS FILED ON 15.07.2010 WHICH READS AS UND ER:- (I) THE LD. ASSESSING OFFICER HAS ERRED IN LAW AND FACTS OF THE CASE IS REOPENING OF ASSESSMENT U/S 147 OF THE ACT. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE A CTION OF REOPENING IS WITHOUT JURISDICTION AND NOT PERMISSIB LE EITHER ITA NO. 2725/AHD/2010 GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY V. DCIT AY 2004-05 - 5 - IN LAW OR ON FACT. THE PRESENT PROCEEDINGS THEREFO RE ARE REQUIRED TO BE QUASHED. (II) THE LD. ASSESSING OFFICER HAS ERRED IN LAW AN D ON FACTS OF THE CASE BY NOT FOLLOWING LAW LAID DOWN BY THE S UPREME COURT IN GKN DRIVESHAFT (INDIA) LTD. BY NOT DISPOSI NG OFF THE OBJECTION RAISED BY THE APPELLANT AND THEREFORE ALS O THE PRESENT PROCEEDINGS ARE REQUIRED TO BE QUASHED. (III) (IV). 2.2 THE LD. COUNSEL FOR THE ASSESSEE FURTHER POINTE D OUT THAT INSPITE OF THE FACT THAT THE LEGAL ISSUE WAS RAISED THE SAME HAS NOT BEEN DISPOSED OFF BY THE CIT(A) BEFORE UPHOLDIN G THE RE- ASSESSMENT ORDER WHICH IS CONTRARY TO THE RATIO LA ID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVES HAFT (INDIA) LTD (SUPRA) AND THE SAME HAS BEEN FOLLOWED BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA LTD (SUPRA). FURTHER THE SAME RATIO HAS BEEN FOLLOWED BY ITAT AHMEDABAD BENCH IN THE CASE OF BHARUCH ENVIRO INFRASTRUCTURE LTD (SUPRA). AGREEING TO THE CONTE NTION OF THE ASSESSEE WE ARE OF THE VIEW THAT THE OBJECTIONS RA ISED BY THE ASSESSEE SHOULD BE DISPOSED OFF BY THE LOWER AUTHOR ITIES WHICH HAS NOT BEEN DONE SO IN THIS CASE WHICH IS NOT JUST IFIED. THEREFORE IN THE INTEREST OF JUSTICE WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORE THE MATTER BACK T O THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THIS ISSUE AS PER FACTS AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NO. 2725/AHD/2010 GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY V. DCIT AY 2004-05 - 6 - 2.3 SINCE WE ARE RESTORING THE APPEAL ON PRELIMINAR Y LEGAL ISSUE WE ARE ALSO RESTORING OTHER ISSUES RAISED ON MERIT IN THE ASSESSEES APPEAL TO THE FILE OF THE ASSESSING OFFI CER WITH THE DIRECTION TO DECIDE THE SAME AS PER FACTS AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSE E. 2.4 SINCE WE ARE SETTING ASIDE THE ISSUE TO THE FIL E OF ASSESSING OFFICER ON PRELIMINARY OBJECTION SO WE ARE REFRAIN ING TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. 3. AS A RESULT THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 30 TH OF APRIL 2015 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 30/04/2015 *BT &' (!) *&)! &' (!) *&)! &' (!) *&)! &' (!) *&)!/ COPY OF THE ORDER FORWARDED TO : 1. + / THE APPELLANT 2. (-+ / THE RESPONDENT. 3. ! . / CONCERNED CIT 4. . ( ) / THE CIT(A) 5. )12 (! / DR ITAT AHMEDABAD 6. 2 3 / GUARD FILE. &' &' &' &' / BY ORDER //TRUE COPY// 4 44 4/ // / 5 5 5 5 (DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD