Income Tax Officer, Ward-1, Rewa v. Shri Narayan Mishra, Rewa

ITA 40/JAB/2020 | 2013-2014
Pronouncement Date: 31-08-2021 | Result: Dismissed

Appeal Details

RSA Number 4022914 RSA 2020
Assessee PAN ADVPM3285H
Bench Jabalpur
Appeal Number ITA 40/JAB/2020
Duration Of Justice 8 month(s) 23 day(s)
Appellant Income Tax Officer, Ward-1, Rewa
Respondent Shri Narayan Mishra, Rewa
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2021
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 31-08-2021
Last Hearing Date 16-02-2021
First Hearing Date 19-07-2021
Assessment Year 2013-2014
Appeal Filed On 07-12-2020
Judgment Text
ITA NO. 40/JAB/2020 (AY 2013-14) ITO V. NARAYAN MISHRA 1 IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH JABALPUR (SMC) (THROUGH VIDEO CONFERENCING) BEFORE SH. SANJAY ARORA HON'BLE ACCOUNTANT MEMBER ITA NO.40/JAB/2020 ASSESSMENT YEAR: 2013-14 INCOME TAX OFFICER WARD -1 REWA VS. NARAYAN MISHRA REWA JABALPUR (M.P.) [PAN: ADVPM 3285H] (APPELLANT) (RESPONDENT) APPELLANT BY SH. S.K. HALDER SR. DR RESPONDENT BY SH. ABHIJEET SHRIVASTAVA ADV. DATE OF HEARING 30/08/2021 DATE OF PRONOUNCEMENT 31/08/2021 ORDER PER SANJAY ARORA AM THIS IS AN APPEAL BY THE REVENUE DIRECTED AGAINST T HE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-1 JABALPUR ( CIT(A) FOR SHORT) DATED 11/9/2020 PARTLY ALLOWING THE ASSESSEES APPEAL CO NTESTING HIS ASSESSMENT UNDER SECTION 147 READ WITH SEC.144 OF THE INCOME T AX ACT 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR 2013-14 VIDE O RDER DATED 13/11/2019. 2. AT THE OUTSET CONFIRMATION WAS SOUGHT BY THE BE NCH FROM SH. SRIVASTAVA THE LD. COUNSEL FOR THE ASSESSEE AS TO IF THE ASSE SSEE HAD FILED ANY APPEAL OR CROSS OBJECTION IN RESPECT OF THE IMPUGNED ORDER T O WHICH HE REPLIED IN THE NEGATIVE FURTHER CLARIFYING THAT THE SAME IS BEING CONTESTED ON MERITS I.E. QUA EACH OF THE GROUNDS OF APPEAL ASSUMED BY THE REVENU E WHICH ARE AS UNDER: ITA NO. 40/JAB/2020 (AY 2013-14) ITO V. NARAYAN MISHRA 2 (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.16 69 585/- ON ACCOUNT OF UNEXPLAINED INVESTMENT. (II) THE APPEAL IS BEING FILED AGAINST FALLS UNDER EXCEP TIONAL CLAUSE OF PARA 10(C) OF THE BOARDS INSTRUCTION NO. 3/2018 DATED TO 11/0 7/2018. 3. IT WAS TO BEGIN WITH OBSERVED THAT THE APPEAL STANDS PREFERRED BY THE REVENUE IN VIEW OF THE EXCEPTION VIDE PARA 10(C) OF THE BOARD INSTRUCTION NO. 03/2018 DATED 11/7/2018 ISSUED U/S. 268A OF THE A CT WHICH FORMS PART OF ITS LATEST INSTRUCTION I.E. 17/2019 DATED 08/8/2019. SEC. 268A MANDATES FOR AN APPELLATE AUTHORITY TO WHILE HEARING APPEALS BY TH E REVENUE BEFORE IT HAVE REGARD TO THE MONETARY LIMITS FIXED BY THE BOARD PE R ITS INSTRUCTIONS ORDERS OR DIRECTIONS TO THE INCOME-TAX AUTHORITIES ISSUED FR OM TIME TO TIME FOR THE PURPOSE OF REGULATING THE FILING OF APPEALS & REFER ENCES BY THE REVENUE AND WHICH AS PER THE LATEST INSTRUCTION DATED 08/8/201 9 IS AT RS. 50 LACS FOR THE APPEALS BEFORE THE APPELLATE TRIBUNAL WHILE THE TA X-EFFECT OF THE INSTANT APPEAL IS ADMITTEDLY BELOW THE SAID LIMIT. EXCEPTIONS TO T HE SAME SO THAT APPEALS COULD BE VALIDLY FILED EVEN WHERE THEY ENTAIL A TAX-EFFEC T BELOW THE SAID LIMIT/S ARE LISTED AT PARAS 10 & 11 TO THE INSTRUCTION DATED 11 /7/2018. PARA 10 (C) READS AS UNDER: 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISS UES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LE SS THAT THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT : (A) .. OR (B) .. OR (C) WHERE THE REVENUE AUDIT OBJECTION IN THE C ASE HAS BEEN ACCEPTED BY THE DEPARTMENT OR . CLEARLY THEREFORE THE AUDIT OBJECTION BY THE REVE NUE AUDIT PARTY HAS TO BE ACCEPTED BY THE REVENUE FOR ITS APPEAL TO FALL WIT HIN THE AMBIT OF THE EXCEPTION STATED AT PARA 10(C) AND ACCORDINGLY BE ADMISSIBL E. TOWARD THIS SH. SRIVASTAVA WOULD DRAW MY ATTENTION TO THE AUDIT OBJECTION DATE D 12/4/2016 (APB PGS. 10- ITA NO. 40/JAB/2020 (AY 2013-14) ITO V. NARAYAN MISHRA 3 12) BENEATH WHICH ITSELF THE ASSESSING OFFICER (AO ) I.E. ITO WARD 1 REWA HAS VIDE HIS RESPONSE THERETO DATED 13/4/2016 STA TED THAT THE AUDIT OBJECTION IS NOT ACCEPTABLE AS THE ASSESSEE HAD EXPLAINED THE IN VESTMENT UNDER REFERENCE I.E. FOR RS. 16.69 LACS FOR WHICH EXPLANATION WAS SOUGHT FROM HIM AND ADDITION QUA WHICH IS THE SUBJECT MATTER OF THE INSTANT APPEAL. HE HAS IN FACT HE WOULD FURTHER SUBMIT ALSO STATED IT TO BE A CASE OF CHAN GE OF OPINION. THE AUDIT OBJECTION HE CONCLUDED HAS NOT BEEN ACCEPTED BY T HE AO FOR THE REVENUE TO INVOKE THE EXCEPTION U/C. 10(C) SUPRA. THE REVENUES CASE IN THIS REGARD IS THAT THE VERY FACT THAT NOTICE U/S. 148 STANDS ISSUED BY THE AO WHICH IS ONLY AFTER RECORD ING REASONS U/S. 148(2) AND OBTAINING SANCTION FROM THE COMMISSIONER U/S. 151 IMPLIES THAT THE REVENUE HAD ACCEPTED THE AUDIT OBJECTION BY THE REVENUE AUD IT PARTY (RAP). ITS APPEAL IS THUS ADMISSIBLE UNDER EXCEPTION 10(C) SUPRA. 4. I HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD INSOFAR AS IS RELEVANT FOR THE REVENUES GD. # 2. THE AUDIT OBJECTION HAS BEEN GONE THROUGH. THERE IS NO REFERENCE THEREIN TO ANY MATERIAL NOT ALREADY BEFORE THE AO WHILE FRA MING THE ORIGINAL ASSESSMENT U/S. 143(3) ON 10/3/2016 WITHOUT MAKING THE IMPUGNE D ADDITION FOR RS. 16.69 LACS. TRUE THERE IS NO DISCUSSION IN RESPECT OF TH E SAID INVESTMENT OR EVEN A REFERENCE TO THE LETTER DATED 22/2/2016 TO THE ASSE SSEE DURING THE COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS SEEKING EXPLANATION IN RESPECT OF THE SAID INVESTMENT IN THE ASSESSMENT ORDER DATED 10/3/2016 WHICH IS BROUGHT FORTH FOR THE FIRST TIME ONLY IN THE AUDIT OBJECTION DATED 12 /4/2016. THAT HOWEVER CANNOT BY ITSELF BE READ AS AN OMISSION BY THE AO TO CONSI DER THE ASSESSEES REPLY TO THE SAID LETTER ALSO REFERRED TO IN THE AUDIT OBJECTIO N THE ONUS TO SHOW WHICH (I.E. THE SAID OMISSION) WOULD AGAIN BE ON THE REVENUE . THE AOS COMMENTS TO THE ITA NO. 40/JAB/2020 (AY 2013-14) ITO V. NARAYAN MISHRA 4 AUDIT OBJECTION RATHER CLARIFY THAT TO BE NOT THE CASE AND PUT PAYS ANY CLAIM THAT THE REVENUE MAY MAKE IN THE MATTER. IT COULD BE ARGUED AS INDEED IT WAS BEFORE ME TH AT THE VERY FACT OF THE REVENUE HAVING ISSUED NOTICE U/S. 148 ON 29/3/2019 IS BY ITSELF A PROOF OF IT HAVING ACCEPTED THE AUDIT OBJECTION AND THUS FALL ING WITHIN THE EXCEPTION U/C. 10(C). THE ARGUMENT IMPRESSIVE AT FIRST BLUSH IS HOWEVER FACILE AND IN ANY CASE NOT BORNE OUT BY THE RECORD. THE AO IS CATEGO RICAL IN HIS COMMENTS DATED 13/4/2016 TO THE AUDIT OBJECTION MAKING IT ABUNDAN TLY CLEAR THAT THE SAME IS UNWARRANTED INASMUCH AS THE ASSESSEE HAD EXPLAINED THE INVESTMENT UNDER REFERENCE AND WOULD IN ANY CASE BE A CHANGE OF O PINION. THE SUBSEQUENT ISSUE OF THE NOTICE U/S. 148 IN MARCH 2019 IS THEREFOR E AND ON THE CONTRARY A NON- ACCEPTANCE OF THE AOS NON-ACCEPTANCE OF THE AUDIT OBJECTION BY THE RAP WHICH CLEARLY HAS PREVAILED IN THE MATTER LEADING T O THE ISSUE OF NOTICE U/S. 148(1) AFTER THREE YEARS OF THE RAISING OF THE AUDI T OBJECTION. THE LAW CONFERS PLENARY POWERS TO THE AO IN THE MATTER OF ASSESSMEN T WHICH HE EXERCISED WHILE FRAMING THE ORIGINAL ASSESSMENT IN MARCH 2016. FUR THER IT IS ONLY ON A REASON TO BELIEVE ESCAPEMENT FROM ASSESSMENT OF ANY INCOME CHARGEABLE TO TAX THAT HE ASSUMES JURISDICTION U/S. 147 TO MAKE AN ASSESSMENT BRINGING TO TAX SUCH INCOME/S. THERE IS NO REFERENCE TO ANY SUBSEQUENT F ACTS I.E. SUBSEQUENT TO ASSESSMENT OF MARCH 2016 OR INFORMATION COMING TO THE POSSESSION OF THE AO EVEN IF AVAILABLE ON RECORD THOUGH DISCOVERED LATER I.E. AFTER 10/3/2016 GIVING RISE TO THE REASON TO BELIEVE ESCAPEMENT AFORESAID AND WHICH IS A CONDITION PRECEDENT FOR THE ISSUE OF NOTICE U/S. 148 AND ASSU MPTION OF JURISDICTION U/S. 147. THE REASONS RECORDED U/S. 148(2) REFER TO THE AOS LETTER DATED 22/2/2016 AND THE ASSESSEES REPLY THERETO BOTH EVENTS OCCUR RING PRIOR TO 10/3/2016 I.E. DURING THE COURSE OF THE ORIGINAL ASSESSMENT PROCEE DINGS. FURTHER THE AOS COMMENTS TO THE AUDIT OBJECTION MAKE IT AMPLY CLEAR THAT THE ASSESSEES REPLY TO HIS LETTER DATED 22/2/2016 WAS ACCEPTED BY THE AO. THE REVENUE HAS NOT SHOWN ITA NO. 40/JAB/2020 (AY 2013-14) ITO V. NARAYAN MISHRA 5 THE SAID ACCEPTANCE TO BE INFIRM MUCH LESS PERVERS E EVEN AS THE COURSE AVAILABLE IN THE FORMER CASE WOULD BE A REVISION U/ S. 263. IT IS ALSO NOT THE REVENUES CASE THAT THE AOS OPINION ACCEPTING THE ASSESSEES REPLY WAS PERVERSE I.E. A VIEW NO PERSON PROPERLY INSTRUCTE D ON FACTS AND IN LAW COULD TAKE AS WHERE THE SAID REPLY IS IRRELEVANT OR DOES NOT MEET THE LETTER DATED 22/2/2016 BY THE AO. I AM CONSCIOUS WHILE SO DISCU SSING THAT THERE IS NO CHALLENGE TO THE NOTICE U/S. 148(1) BY THE ASSESSEE WHICH ASPECT I.E. THE VALIDITY OF THE REASONS RECORDED U/S. 148(2) OR OF THE ASSUMPTION OF JURISDICTION U/S. 147 MUST THEREFORE BE REGARDED AS HAVING AT TAINED FINALITY. THE PRESENT DISCUSSION ONLY SEEKS TO EMPHASIZE THE NON-SUSTAINA BILITY OF THE ARGUMENT ADVANCED BY THE LD. SR. DR INASMUCH AS THERE HAS BE EN BOTH FACTUALLY OR LEGALLY NO OMISSION TO CONSIDER THE ASSESSEES EXP LANATION QUA THE IMPUGNED INVESTMENT DURING THE ORIGINAL ASSESSMENT PROCEEDIN GS NOR THE AOS VIEW IN ACCEPTING THE SAID EXPLANATION PERVERSE IN WHICH E ITHER CASE THE AOS OBJECTION TO THE AUDIT OBJECTION WOULD BE RENDERED INVALID IN LAW. AND THE REVENUES SUBSEQUENT ACTION IN ISSUING NOTICE U/S. 148 INTERP RETED EVEN AS ARGUED BY THE LD. SR. DR AS AN ACCEPTANCE BY THE REVENUE OF THE REVENUE AUDIT OBJECTION. NEEDLESS TO ADD THE REVENUE HAS NOT SHOWN ME ANY C OUNTER BY THE RAP TO THE AOS COMMENTS DATED 13/4/2016 MEETING HIS OBJECTIO N SO AS TO EXHIBIT THEREBY THAT THE AUDIT OBJECTION WOULD SURVIVE THE AOS COM MENTS I.E. OBTAIN DESPITE THE SAME WHICH (COMMENTS) WOULD THUS STAND RENDERE D INCONSEQUENTIAL. EVEN AS AS WOULD BE APPARENT THE MATTER IS PRINCIPALLY FACTUAL THE VIEW TAKEN IN THIS CASE IS SUPPORTED BY THE DECISION BY THE APEX COURT IN LARSEN & TOUBRO LTD. VS. STATE OF JHARKHAND (IN C.A. NO.5390 OF 2007 DATED 21/03/2017). THE REVENUES APPEAL IS THUS NOT SAVED AS CONTENDE D BY THE EXCEPTION LISTED UNDER PARA 10(C) OF THE BOARD INSTRUCTION U/ S. 119 R/W S. 268A DATED 11/7/2018. ITA NO. 40/JAB/2020 (AY 2013-14) ITO V. NARAYAN MISHRA 6 5. THE REVENUES APPEAL IS ACCORDINGLY NOT MAINT AINABLE U/S. 268A(1) OF THE ACT. I DECIDE ACCORDINGLY. 6. IN THE RESULT THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 31 20 21 S D/- (SANJAY ARORA) A CCOUNTANT MEMBER DATED: 31/08/2021 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT: INCOME TAX OFFICER WARD- 1 REWA -4 86001 2. THE RESPONDENT: SHRI NARAYAN MISHRA 9/461 NIRALA NAGAR REWA - 486001 3. THE PR. CIT-1 JABALPUR 4. THE CIT(A)-1 JABALPUR 5. THE SR. DR ITAT JABALPUR 6. GUARD FILE // TRUE COPY //