M/s Orissa Mining Corporation Ltd, Bhubaneswar v. ACIT, Bhubaneswar

ITA 30/CTK/2009 | 2000-2001
Pronouncement Date: 09-11-2011

Appeal Details

RSA Number 3022114 RSA 2009
Assessee PAN AAACO3324L
Bench Cuttack
Appeal Number ITA 30/CTK/2009
Duration Of Justice 2 year(s) 9 month(s) 16 day(s)
Appellant M/s Orissa Mining Corporation Ltd, Bhubaneswar
Respondent ACIT, Bhubaneswar
Appeal Type Income Tax Appeal
Pronouncement Date 09-11-2011
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 09-11-2011
Date Of Final Hearing 21-10-2011
Next Hearing Date 21-10-2011
Assessment Year 2000-2001
Appeal Filed On 23-01-2009
Judgment Text
IN THE INC O ME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE : SHRI K.K.GUPTA AM AND SHRI K.S.S.PRASAD RAO JM ITA NO. 30 AND 31/CTK/2009 (ASSESSMENT YEAR S 2000 - 01 AND 2001 - 02) M/S.ORISSA MINING CORPORATION LTD. OMC HOUSE BHUBANESWAR 01 PA NAAACO 3324 L VERSUS ASST.COMMISSIONER OF INCOME - TAX CIRCLE 1(1) BHUBANESWAR. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI V.JAIN/D.MOHANTY ARS FOR THE RESPONDENT SMT. PARAMITA TRIPATHY DR DATE OF HEARING : 21.10.2011 DATE OF PRONOUNCEM ENT : 09.11.2011 ORDER SHRI K.S.S.PRASAD RAO JM : THESE TWO APPEALS ARE FILED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE ORDERS OF THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE AYS 2000 - 01 AND 2001 - 02 IN THE CASE OF THE ASSESSEE. 2. IN BOTH THE APPEALS TH E ASSESSEE HAS RAISED COMMON GROUNDS AS FOLLOWS : 1. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE FIRST APPELLATE ORDER IS AGAINST LAW AND WEIGHT OF EVIDENCE. 2. FOR THAT THE ANNULMENT OF THE ASSESSMENT MADE BY THE LD. ASSESSING OFFICER U/S 143 (3)1147 OF THE ACT IS ARBITRARY AGAINST LAW AND WITHOUT JURISDICTION. 3. FOR THAT THE APPELLANT HAS FILED ITS TAX RETURN FOR ASST. YEAR 2000 - 01 BASED ON UN - AUDITED PROVISIONAL ACCOUNTS WITHIN THE PRESCRIBED DUE DATE AS IN THE PAST. THE LD. AO TOOK UP THE ASSESSMENT AFTER THE AUDITED ACCOUNTS WERE FILED BY INVOKING SEC.147 AS IN THE PAST WHICH IS IN ORDER. 4. FOR THAT THE APPELLANT HAS RETURNED A LOSS OF RS.9 94 59 775/ - AGAINST WHICH THE LD. AO HAS DETERMINED A LOSS OF RS.9 65 13 260/ - RESULTING IN REDUC TION OF LOSS WHICH IS IN FAVOUR OF REVENUE. IN VIEW OF THE FACTS CITED ABOVE OBSERVATION MADE BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 1 BHUBANESWAR THAT THE ASSESSMENT WAS RE - OPENED U/S 147 ONLY TO ACCOMMODATE THE ASSESSEE IS INCORRECT AND THE REFORE THE CASE OF CIT - VRS - SUN ENGINEERING WORK PVT. LTD. (198 ITR 297 SUPREME COURT) CITED BY THE LD. CIT (A) - 1 IS NOT APPLICABLE IN THE CASE OF THE APPELLANT AND THEREFORE THE ANNULMENT OF ASSESSMENT IS BAD IN LAW. 2 5. FOR THAT THE LD. CIT (A) - 1 IGNORE D THE COVERED ORDER OF THE HONBLE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK FOR THE IMMEDIATE PRECEDING YEAR (ASST. YEAR 1999 - 00) OF THE SAME APPELLANT (APPEAL NO. ITA NO.835/CTK/2004 DTD. 31ST JANUARY 2007) ALLOWING THE CARRY FORWARD OF ACCUM ULATED LOSSES UNDER EXACTLY SIMILAR CIRCUMSTANCES WHICH TANTAMOUNT TO CONTEMPT OF COURT. 6. THE APPELLANT CRAVES LEAVE TO ADD OR TO AMEND THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 7. FOR THAT THESE AND AMONG OTHER GROUND S TO BE URGED AT THE TIME OF HEARING ADEQUATE RELIEF AS MAY BE DEEMED FIT BE GRANTED IN THE MATTER. 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAISED IN THE RESPECTIVE APPEALS AND THEIR LEGAL IMPLICATIONS. 4. ON CAREFUL CONSIDERATION OF THE MATE RIAL MADE AVAILABLE TO THE TRIBUNAL AND ANALYZING THE SAME IN THE LIGHT OF THE SUBMISSIONS OF BOTH THE PARTIES IT IS FOUND THAT THE ASSESSEE HAS FILED ITS RETURNS FOR THESE TWO ASSESSMENT YEAR WITHIN TIME LIMIT PROVIDED U/S.139(1) BUT HOWEVER IT COULD NO T FILE THE AUDIT REPORT AS REQUIRED U/S.44AB SINCE THE ACCOUNTS OF THE ASSESSEE WERE AUDITED NOT WITHIN TIME OF FILING THE RETURN AS THE ASSESSEE IS A CENTRAL GOVERNMENT OF INDIA UNDERTAKING AND COMPTROLLER OF AUDIT GENERAL HAS TO AUDIT THE ACCOUNTS WHIC H IS NOT IN THE HANDS OF THE ASSESSEE. THE ASSESSING OFFICER HAS PICKED UP THESE RETURNS AFTER THE ASSESSEE HAS FURNISHED THE AUDITED ACCOUNTS BY INVOKING SECTION 147 OF THE I.T.ACT. THE ASSESSING OFFICER ACCORDINGLY HAS DONE THE REASSESSMENT AND DETERMIN E THE LOSSES FOR BOTH THE YEARS LESS THAN WHAT THE ASSESSEE HAS RETURNED. HAVING BEEN AGGRIEVED BY THESE ORDERS THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) AND THE LEARNED CIT(A) AFTER HEARING THE ASSESSEE AND CONSIDERING THE MATERIAL AVAILABLE N RECORD AND TAKING INTO CONSIDERATION THE VIEWS OF THE ASSESSING OFFICER HAS COME TO THE CONCLUSION THAT SECTION 147 CANNOT BE INVOKED TO ACCOMMODATE THE ASSESSEE. THEREFORE HE FOUND THAT THE INITIATION OF PROCEEDINGS U/S.147 OF THE 3 I.T.ACT BY THE ASSESSING OFFI CER IS INCORRECT AND ACCORDINGLY ANNULLED THE CONSEQUENTIAL ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER. AGGRIEVED BY THESE ORDERS THE ASSESSEE HAS COME IN APPEAL BEFORE THE TRIBUNAL. 5. DURING THE COURSE OF HEARING THE LEARNED AR OF THE ASSESSEE H AS ARGUED WHAT WERE CONTENDED BEFORE THE DEPARTMENTAL AUTHORITIES INTERALIA CONTENDING THAT THE ORDERS PASSED BY THE LEARNED CIT(A) IN ANNULLING THE ASSESSMENT ORDERS IS INCORRECT INSOFAR AS THE CIT(A) WOULD HAVE FOLLOWED THE DECISION OF ITAT CUTTACK BENC H IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1999 - 2000 WHERE SIMILAR ISSUE WAS CONSIDERED BY THE TRIBUNAL AND THE TRIBUNAL ALLOWED TO CARRY FORWARD THE ACCUMULATED LOSSES IN EXACTLY SIMILAR CIRCUMSTANCES. THEREFORE THE IMPUGNED ORDERS PASSED BY THE L EARNED CIT(A) ARE NOT SUSTAINABLE FOR LEGAL SCRUTINY. ACCORDINGLY HE PRAYED FOR ALLOWING THE APPEALS OF THE ASSESSEE IN SETTING ASIDE THE ORDERS OF THE LEARNED CIT(A). 6. CONTRARY TO THIS THE LEARNED DR HAS VEHEMENTLY ARGUED SUPPORTING THE ORDERS OF THE LEARNED CIT(A) AND SOUGHT FOR DISMISSAL OF THE APPEALS OF THE ASSESSEE BY UPHOLDING THE ORDERS OF THE LEARNED CIT(A). 7. ON CAREFUL ANALYSIS OF THE ORDERS PASSED BY THE LEARNED CIT(A) FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION IT IS SEEN THAT THE L EARNED CIT(A) FOUND FAULT WITH THE ACTION OF THE ASSESSING OFFICER IN INVOKING SECTION 147 OF THE I.T.ACT THEREBY REOPENING THE ASSESSMENTS AND PASSING THE IMPUGNED ASSESSMENTS BY RELYING NO THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CIT V. SUN ENGINEERING WORKS PVT. LTD. (198 ITR 297) WHEREIN IT WAS HELD THAT THE ASSESSMENT SHOULD NOT BE REOPENED TO ACCOMMODATE THE ASSESSEE U/S.147 OF THE I.T.ACT. HOWEVER THE LEARNED CIT(A) HAS NOT AT ALL CONSIDERED THE ORDER OF ITAT CUTTACK BENCH IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 1999 - 2000 UNDER SIMILAR CIRCUMSTANCES. IN THE SAID ORDER FOR THE ASSESSMENT YEAR 1999 - 2000 IT WAS CATEGORICALLY HELD BY THE 4 TRIBUNAL THAT THE RETURN FILED BY THE ASSESSEE IS A VALID ONE ALTHOUGH IT WAS NOT ACCOMPANIED BY STATUTORY AUDIT REPORT AS REQUIRED UNDER LAW IT IS TO BE TAKEN AS A VALID RETURN U/S.139(1) AND CONSEQUENTLY BENEFIT OF CARRYING FORWARD LOSSES HAS TO BE ALLOWED TO THE ASSESSEE. WHILE PASSING THIS ORDER THE TRIBUNAL HAS CONSIDERED TH E PROVISIONS OF SECTION 139 AS WELL AS THE RELEVANT CBDT CIRCULARS ISSUED ON THIS ASPECT WHEREIN IT WAS CLEARLY LAID DOWN THAT THOUGH THE ASSESSEE HAS NOT FILED THE AUDIT REPORT ALONG WITH THE RETURN THOUGH RETURN IS FILED IN TIME THE ASSESSEE COULD NOT B E DEPRIVED OF THE CARRY FORWARD OF LOSSES DETERMINED BY THE ASSESSING OFFICER PROVIDED THE NON - FURNISHING OF AUDIT REPORT IS NOT WILLFUL AND DELIBERATE ACT OF THE ASSESSEE. AS PER UNDISPUTED FACTS STATED SUPRA THE ASSESSEE WAS NOT ABLE TO FURNISH THE AUD IT REPORT ALONG WITH THE RETURNS THAT WERE FILED IN TIME AS CONTEMPLATED U/S.139(1) AND IT HAS FILED THE AUDIT REPORT SOON AFTER IT RECEIVED THE SAME BUT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENTS BY INVOKING THE PROVISIONS OF SECTION 147 OF THE AC T AND COMPLETED THE ASSESSMENTS DETERMINING LESSER LOSS ES THAN CLAIMED BY THE ASSESSEE BUT AT THE SAME TIME HE HAS NOT GIVEN CARRY FORWARD OF LOSSES AS THE RETURNS WERE FOUND TO BE DEFECTIVE THOUGH FILED IN TIME. AGGRIE VED BY THESE ORDERS THE ASSESS EE IS IN APPEAL BEFORE THE CIT(A)AND THE LEARNED CIT(A) HAS COME TO THE CONCLUSION THAT SECTION 147 CANNOT BE INVOKED FOR THE BENEFIT OF THE A SSESSEE AS WAS DONE IN THE CASE AND HE FOUND THAT THE ACTION OF THE ASSESSING OFFICER IS UNJUST AND NOT VALID. ACCORDINGLY HE ANNULLED THE CONSEQUENTIAL ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER WHILE PASSING THE IMPUGNED ORDERS. ON COMPARISON OF THE FACTUAL ASPECTS OF THESE TWO YEARS WITH THOSE OF ASSESSMENT YEAR 1999 - 2000 WHEREIN THE TRIBUNAL HAS OBSERVED THAT THE RE TURN FILED BY THE ASSESSEE WITHOUT AUDIT REPORT AND IT HAS FILED THE SAME IN TIME THE RETURN CANNOT BE TREATED AS INVALID AND BENEFIT U/S.139(3) TO CARRY 5 FORWARD THE LOSSES CANNOT BE DENIED TO THE ASSESSEE. THE FACTS AND CIRCUMSTANCES FOR THESE TWO AYS AL SO ARE BEING SIMILAR TO THOSE FOR THE ASSESSMENT YEAR 1999 - 2000 THE ASSESSING OFFICERS ACTION IN DENYING THE CARRY FORWARD LOSSES IS NOTHING BUT INVALID. THE LEARNED CIT(A) ALSO HAS NOT CONSIDERED THIS ASPECT OF THE CASE WHILE PASSING THE IMPUGNED ORDERS . THEREFORE UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT THE IMPUGNED ORDERS PASSED BY THE ASSESSING OFFICER AS WELL AS BY THE LEARNED CIT(A) ARE NOT TENABLE FOR LEGAL SCRUTINY AND HENCE THEY ARE HEREBY SET ASIDE BY DIRECTING THE ASSESSING OFFICER TO ALLOW THE CARRY FORWARD LOSSES FOR THESE TWO YEARS ALSO IN THE CASE OF THE ASSESSEE BY ALLOWING THE APPEALS OF THE ASSESSEE. 8. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. S D/ - S D/ - (K.K.GUPTA) ACCOUNTANT MEMBER ( K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 9 TH NOVEMBER 2011 H.K.PADHEE SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: M/S.ORISSA MININ G CORPORATION LTD. OMC HOUSE BHUBANESWAR 01 2. THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX CIRCLE 1(1) BHUBANESWAR. 3. THE CIT 4. THE CIT(A) 5. THE DR CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY.