The ACIT,(OSD) Circle-5,, Ahmedabad v. M/s. Purnima Advertising Agency Pvt.Ltd.,, Ahmedabad

ITA 3172/AHD/2010 | 2001-2002
Pronouncement Date: 25-10-2013 | Result: Dismissed

Appeal Details

RSA Number 317220514 RSA 2010
Assessee PAN AAACP9266G
Bench Ahmedabad
Appeal Number ITA 3172/AHD/2010
Duration Of Justice 2 year(s) 10 month(s) 25 day(s)
Appellant The ACIT,(OSD) Circle-5,, Ahmedabad
Respondent M/s. Purnima Advertising Agency Pvt.Ltd.,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 25-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 25-10-2013
Date Of Final Hearing 10-10-2013
Next Hearing Date 10-10-2013
Assessment Year 2001-2002
Appeal Filed On 30-11-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SRI D.K. TYAGI JUDICIAL MEMBER AND SHRI T.R. MEENA ACCOUNTANT MEM BER ACIT (OSD) CIRCLE-5 AHMEDABAD (APPELLANT) VS PURNIMA ADVERTISING AGENCY PVT. LTD. 35 SHRIMALI SOCIETY NR. NAVRANGPURA POLICE STATION NAVRANGPURA AHMEDABAD PAN: AAACP9266G (RESPONDENT) PURNIMA ADVERTISING AGENCY PVT. LTD. 35 SHRIMALI SOCIETY NR. NAVRANGPURA POLICE STATION NAVRANGPURA AHMEDABAD PAN: AAACP9266G (CROSS OBJECTOR) VS ACIT (OSD) CIRCLE-5 AHMEDABAD (RESPONDENT) REVENUE BY: SRI O.P. BATHEJA SR.D.R. ASSESSEE BY: SRI ROHAN THAKKAR A.R. DATE OF HEARING : 10-10-2013 DATE OF PRONOUNCEMENT : 25-10-20 13 ITA NO. 3172/AHD/2010 ASSESSMENT YEAR 2001-02 C.O. NO. 339/AHD/2010 (ITA NO. 3172/AHD/2010) ASSESSMENT YEAR 2001-02 I.T.A NO.3172/AHD/2010 & CO NO. 339/AHD/2010 A.Y. 2001-02 PAGE NO ACIT VS. PURNIMA ADVERTISING AGENCY PVT. LTD. 2 / ORDER PER : D.K. TYAGI JUDICIAL MEMBER:- THESE ARE THE REVENUES APPEAL AND CO OF ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-XI AHMEDABAD DATED 31-07-2012. 2. BRIEF FACTS OF THE CASE OF THE CASE ARE THAT THE ORIGINAL ASSESSMENT U/S. 143(3) OF THE ACT WAS FINALIZED IN THIS CASE ON 24- 11-2013 DETERMINING THE TOTAL INCOME OF RS. 1 18 87220/-. THEREAFTER THE CASE WAS RE-OPENED U/S. 147 OF THE ACT AND THE ORDER U/S. 143(3) R.W.S. 147 OF THE ACT WAS PASSED BY THE AO ON 20-12-2007 DETERMINING THE ASSESSEES TOT AL INCOME OF RS. 1 50 611/- AFTER MAKING DISALLOWANCE ON ACCOUNT OF BAD DEBT OF RS. 13 17 246/- AND DISALLOWANCE OF PROVISIONS FOR ADVE RTISEMENT EXPENSES OF RS. 24 12 200/-. THIS ORDER OF AO WAS CHALLENGED BY THE ASSESSEE BEFORE LD. CIT(A) IN WHICH REOPENING U/S. 147 WAS QUESTION ED AND ALSO ADDITIONS MADE WERE ALSO CHALLENGED ON MERITS. LD. CIT(A) HO WEVER HELD THAT RE- OPENING OF ASSESSMENT U/S. 147 WAS IN ORDER AND CON FIRMED THE DISALLOWANCE OF BAD DEBT. WITH REGARD TO DISALLOWANCE OF ADVERT ISEMENT EXPENSES HE DIRECTED THE AO TO VERIFY THE RELEVANT DETAILS AFTE R GIVING THE OPPORTUNITY OF BEING HEARD AND ALLOW THE EXPENSES CLAIMED BY THE A SSESSEE. IN THE SET ASIDE PROCEEDINGS THE AO AGAIN DISALLOWED PROVISION FOR ADVERTISEMENT EXPENSES OF RS. 24 12 200/-. LD. CIT(A) VIDE ITS ORDER DATE D 24-09-2010 DELETED THIS ADDITION. 3. AGAINST THIS ORDER OF LD. CIT(A) REVENUE HAS C OME IN APPEAL AND CO HAS BEEN FILED BY THE ASSESSEE. I.T.A NO.3172/AHD/2010 & CO NO. 339/AHD/2010 A.Y. 2001-02 PAGE NO ACIT VS. PURNIMA ADVERTISING AGENCY PVT. LTD. 3 4. IN THE MEAN TIME APPEAL FILED BY THE ASSESSEE A GAINST THE ORDER PASSED BY LD. CIT(A) IN THE FIRST INNING REACHED THE HON BLE TRIBUNAL IN WHICH INTERALIA THE REOPENING U/S. 147 OF THE ACT WAS ALS O CHALLENGED BY THE ASSESSEE. HONBLE ITAT VIDE ITS ORDER DATED 17-06- 2011 IN ITA NO. 2331/AHD/2008 HAS QUASHED THE REASSESSMENT ORDER DA TED 20-12-2007 BY OBSERVING AS UNDER:- 8. IN THE INSTANT CASE AS IS APPARENT FROM THE FA CTS NARRATED IN ED ORDERS THE AO REOPENED THE ASSESSMENT COMPLETED ON 24.11.2003 MERELY ON THE BASIS THAT THE ASSESSEE CLAIMED CERTA IN DEDUCTIONS ON ACCOUNT OF BAD DEBTS AND PROVISIONS FOR ADVERTISEME NT EXPENSES OR DEPRECIATION INCORRECTLY IN THEIR ORIGINAL RETURN EVEN WHEN QUERIES WERE RAISED BY THE AO IN THE ORIGINAL ASSESSMENT PR OCEEDINGS REGARDING CLAIM FOR BAD DEBTS AND ADVERTISEMENT EXP ENSES. NOT EVEN A WHISPER IS EVIDENT FROM THE REASONS RECORDED OR T HE FACTS NARRATED IN THE IMPUGNED ORDERS AS TO WHETHER OR NOT THERE W AS ANY FAILURE ON THE PART OF THE ASSESSEE IN DISCLOSING FULLY AND TR ULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. WE ARE OF THE OPINION THAT ANY SUCH FAILURE AS IS ENVISAGED IN THE PROVISO TO SEC. 147 OF THE ACT IS A MATTER OF FACT ALONE AND THERE CAN BE NO DEEMED FAILURE. I N THESE CIRCUMSTANCES IN ABSENCE OF ANY FAILURE ON THE PAR T OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR ITS ASSESSMENT FOR THE ASSESSMENT YEARS UNDER CONSIDERATION THE N OTICE UNDER SECTION 148 OF THE ACT HAVING BEEN ISSUED AFTER THE EX PIRY OF A PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR THE VERY INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE ACT STANDS VITIATED AND AS SUCH CANNOT BE SUSTAINED THE INGREDIENTS OF SECTION 147 HAVING NOT BEEN FULFILLED. IN VIEW OF T HE FOREGOING ESPECIALLY IN THE LIGHT OF CONSISTENT VIEW TAKEN IN AFORESAID DECISIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT AND OTHER COURTS CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE C ASE WE ARE OF THE OPINION THAT THERE IS NOTHING TO SUGGEST THAT ALL THE PRIMARY FACTS WERE NOT DISCLOSED BY THE ASSESSEE NOR ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MATER IAL FACTS HAS BEEN ASCRIBED IN THE FACTS NARRATED BEFORE US. IT CANNO T BE SAID THAT THE ASSESSEE SUPPRESSED ANY MATERIAL FACTS. IT IS WELL -SETTLED THAT IF A I.T.A NO.3172/AHD/2010 & CO NO. 339/AHD/2010 A.Y. 2001-02 PAGE NO ACIT VS. PURNIMA ADVERTISING AGENCY PVT. LTD. 4 NOTICE UNDER SECTION 148 OF THE ACT HAS BEEN ISSUED WITHOUT THE JURISDICTIONAL FOUNDATION U/S 147 OF THE ACT BEING AVAILABLE TO THE ASSESSING OFFICER THE NOTICE AND THE SUB SEQUENT PROCEEDINGS WILL BE WITHOUT JURISDICTION AND THUS LIABLE TO BE STRUCK DOWN . IN THESE CIRCUMSTANCES WE VACATE THE FINDINGS OF THE LD. CIT(A) AND QUASH THE IMPUGNED ORDER. CONSEQUENTLY GROUND NO S 1(I) & (II) RAISED IN THE APPEAL OF THE ASSESSEE ARE ALLOWED. AS A COROLLARY THE OTHER GROUNDS IN THE APPEAL OF THE ASSESSEE AS ALSO IN THE APPEAL OF THE REVENUE DO NOT SURVIVE FOR OUR ADJUDICATION AND ARE THEREFORE TREATED AS INFRUCTUOUS. SINCE THE PRESENT APPEAL OF REVENUE AND CO OF ASSE SSEE ARE ARISING OUT OF THAT ORDER ONLY THE SAME HAVE NOW BECOME INFRUCTUO US AND ARE DISMISSED AS INFRUCTUOUS. 3. IN THE RESULT REVENUES APPEAL AS WELL AS CO OF ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (T.R. MEENA) ( D.K. TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 25/10/2013 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER/ /