ACIT, Bangalore v. M/s Gopalan Enterprises, Bangalore

ITA 370/BANG/2011 | 2005-2006
Pronouncement Date: 14-02-2012 | Result: Dismissed

Appeal Details

RSA Number 37021114 RSA 2011
Assessee PAN AABFG0682M
Bench Bangalore
Appeal Number ITA 370/BANG/2011
Duration Of Justice 10 month(s) 7 day(s)
Appellant ACIT, Bangalore
Respondent M/s Gopalan Enterprises, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 14-02-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 14-02-2012
Assessment Year 2005-2006
Appeal Filed On 06-04-2011
Judgment Text
PAGE 1 OF 3 ITA NO.37 0/BANG/2011 1 INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES A BEFORE SHRI N K SAINI ACCOUNANT MEMBER AND SHRI GEORGE GEORGE K JUDICIAL MEMBER ITA NO.370/BANG/2011 (ASST. YEAR 2005-06) THE ASST. COMMISSIONER OF INCOME TAX CIRCLE-1(1) BANGALORE. VS M/S GOPALAN ENTERPRISES NO.5 RICHMOND ROAD BANGALORE-560025. PA NO.AABFG0682M (APPELLANT) (RESPONDENT) DATE OF HEARING 14.02.2012 DATE OF PRONOUNCEMENT 14.02.2012 APPELLANT BY : SHRI S K AMBASTHA CIT-I RESPONDENT BY : NONE O R D E R PER GEORGE GEORGE K : THIS APPEAL INSTITUTED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-IV BANGALORE DATED 01.02.2 011. THE RELEVANT ASSESSMENT YEAR IS 2005-06. 2. BRIEFLY STATED THE FACTS ARE AS FOLLOWS:- THE ASSESSEE IS A FIRM. IT IS ENGAGED IN THE BUS INESS OF REAL ESTATE. FOR THE CONCERNED ASSESSMENT YEAR RETURN O F INCOME WAS FILED ON 31/10/2005 DECLARING AN INCOME OF RS.8 01 620/-. T HE ASSESSEE AS A DEVELOPER CLAIMED DEDUCTION UNDER SECTION 80IB(10) IN RESPECT OF TWO PROJECTS NAMELY MILLENNIUM HABITAT AND ARISTOCRAT. THE ASSESSING OFFICER PAGE 2 OF 3 ITA NO.37 0/BANG/2011 2 PASSED ORDER UNDER SECTION 143(3) OF THE ACT ON 26/ 12/2007 DISALLOWING THE CLAIM OF THE ASSESSEE FIRM OF RS.1 53 16 049/- UNDE R SECTION 80IB(10) FOR THE MILLENNIUM HABITAT. LATER THE COMMISSIONER OF INCOME TAX INVOKED HIS REVISIONARY JURISDICTION UNDER SECTION 263 OF THE AC T AND VIDE ORDER DATED 6/3/2009 SET ASIDE THE ASSESSMENT ORDER DIRECTING THE ASSESSING OFFICER TO VERIFY THE CORRECTNESS OF CLAIM OF THE ASSESSEES DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 3. PURSUANT TO 263 ORDER OF THE COMMISSIONER THE ASSESSMENT WAS COMPLETED VIDE ORDER DATED 29/12/2009 UNDER SECTION 143(3) RWS 263 OF THE I T ACT. IN THE ASSESSMENT COMPLETED UNDER SEC TION 143(3) RWS 263 OF THE ACT THE TOTAL INCOME WAS FIXED AT RS.5 92 23 6 60/-. 4. ON FURTHER APPEAL THE CIT(A) NOTICED THAT THE 263 ORDER WAS QUASHED BY THE ITAT IN ITA NO.1024/09 VIDE ORDER DAT ED 10/2/2010. IT WAS HELD BY THE CIT(A) THAT SINCE THE 263 ORDER HAS BEEN QUASHED BY THE TRIBUNAL THE ASSESSMENT ORDER PURSUANT TO 263 ORDE R DOES NOT SURVIVE AND ACCORDINGLY ALLOWED THE APPEAL OF THE ASSESSEE. 5. THE REVENUE BEING AGGRIEVED IS IN APPEAL BEFORE US. 6. THE LEARNED DR SUBMITTED THAT THE ORDER OF THE TRIBUNAL QUASHING THE REVISIONARY ORDER UNDER SECTION 263 HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND AN APPEAL HAS BEEN FILED BEFORE THE HONBLE HIGH COURT UNDER SECTION 260A OF THE ACT. PAGE 3 OF 3 ITA NO.37 0/BANG/2011 3 7. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HO WEVER AN ADJOURNMENT APPLICATION WAS FILED WHICH WAS DISMISS ED AND WE PROCEEDED TO DISPOSE OFF THE MATTER EX-PARTY. 8. WE HAVE HEARD THE SUBMISSIONS OF THE LEARNED DR AND PERUSED THE MATERIALS ON RECORD. WE FIND THAT THE REVISION ARY ORDER PASSED UNDER SECTION 263 HAS BEEN CANCELLED BY THE TRIBUNAL VIDE ITS ORDER DATED 10.2.2010 IN ITA NO.1024/2009. THIS APPEAL ARISES OUT OF THE ASSESSMENT ORDER GIVING EFFECT TO THE REVISIONARY ORDER PASSED UNDER SECTION 263 OF THE ACT. SINCE THE REVISIONAL JURISDICTION HAS BEEN QU ASHED THE ASSESSMENT ORDER PURSUANT TO THE SAME HAS NO LEGS TO STAND. T HE LEARNED DR HAS NOT BROUGHT ANYTHING ON RECORD TO SUGGEST THAT THE TRIBU NAL ORDER CANCELLING THE REVISIONARY ORDER UNDER SECTION 263 HAS BEEN REVERSE D BY THE HONBLE HIGH COURT. THEREFORE WE ARE OF THE VIEW THAT THE ASS ESSMENT PURSUANT TO 263 ORDER IS WITHOUT THE SANCTION OF LAW AND ACCORDINGL Y WE HOLD THE CIT(A)S ORDER IN CANCELLING THE ASSESSMENT IS JUSTIFIED AND IN ACCORDANCE WITH LAW. 9. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DAY OF FEBRUARY 2012 SD/- SD/- (N K SAINI) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER COPY TO:- 1. THE REVENUE 2. THE ASSESSEE 3. T HE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR 6. GF MSP/- BY ORDER ASST. REGISTRAR ITAT BANGALORE.