ACIT 9(3), MUMBAI v. TECHNIMONT P. LTD, MUMBAI

ITA 4613/MUM/2010 | 2003-2004
Pronouncement Date: 22-07-2011 | Result: Dismissed

Appeal Details

RSA Number 461319914 RSA 2010
Assessee PAN AAACI2628B
Bench Mumbai
Appeal Number ITA 4613/MUM/2010
Duration Of Justice 1 year(s) 1 month(s) 19 day(s)
Appellant ACIT 9(3), MUMBAI
Respondent TECHNIMONT P. LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 22-07-2011
Assessment Year 2003-2004
Appeal Filed On 03-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI PRAMOD KUM AR (AM) I.T.A.NO.4613/MUM/2010 ASSESSMENT YEAR :2003-04 THE ASST. COMMISSIONER OF INCOME- TAX CIRCLE 9(3) MUMBAI. VS. M/S. TECHNIMONT ICB PVT. LTD. BLDG. NO.2 TECHNIMONT ICB HOUSE CHINCHOLI BUNDER 504 LINK ROAD MALAD (W) MUMBAI. 400 064 PAN: AAACI 2628 B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBACHAN RAM RESPONDENT BY : SHRI NIKHIL PANJAN O R D E R PER D.K. AGARWAL JM: THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER DATED 17.3.2010 PASSED BY THE LEARNED COMMISSIONER OF INC OME-TAX (APPEALS) FOR THE ASSESSMENT YEAR 2003-04. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF ENGINEERING DESIGN AND C ONSTRUCTION ACTIVITIES FILED ITS RETURN DECLARING TOTAL LOSS OF ` 1 38 32 014/-. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE INCOME-TAX A CT 1961 (THE ACT) ACCEPTING THE LOSS RETURNED. SUBSEQUENTLY THE LEA RNED COMMISSIONER OF INCOME- TAX EXERCISING HIS JURISDICTION UNDER SECTION 263 O F THE ACT PASSED AN ORDER SETTING ASIDE THE ASSESSMENT TO BE MADE DENOVO. ACCORDINGL Y THE ASSESSING OFFICER PASSED A FRESH IMPUGNED ASSESSMENT ORDER DETERMININ G THE TOTAL INCOME AT ` 3 77 09 391/- VIDE ORDER DATED 29.12.2008 PASSED UN DER SECTION 143(3) READ WITH SECTION 263 OF THE ACT. AGAINST THE SAID ASSESSMEN T ORDER THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME-TA X (APPEALS). THE COMMISSIONER OF INCOME-TAX (APPEALS) FOLLOWING THE ORDER OF THE TRIBUNAL IN ITA ITA NO.4613/MUM/2010 SMT. SMITA V MADLANI 2 NO. 3667/MUM/2008 DATED 29.10.2009 WHEREIN THE TR IBUNAL HAS HELD THAT THE ORDER OF THE COMMISSIONER OF INCOME-TAX WAS UNSUSTA INABLE IN LAW AND THEREFORE SET ASIDE THE SAME ANNULLED THE CONSEQUENTIAL ASSE SSMENT ORDER PASSED BY THE ASSESSING OFFICER AND ALLOWED THE APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT( A) THE REVENUE IS IN APPEAL BEFORE US TAKING THE FOLLOWING GROUNDS OF AP PEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN ANNULLING THE ORDER PASSED U/S.1 43(3) R.W.S.263 OF IT ACT BY ASSESSING OFFICER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD.CIT(A) HAS FURTHER ERRED IN RELYING ON HONBLE I .T.A.TS ORDER ITA NO.3667/M/08 DATED 29.10.2009 AGAINST WHICH THE DEPARTMENT HAS PREFERRED APPEAL U/S.260A OF IT ACT BEFORE BOMBAY HIGH COURT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD.CIT(A) HAS FURTHER ERRED IN RELYING ON DECISION OF HONBLE I.T.A.T WHO ERRED IN HOLDING THAT IN ORDER U/S.263 OF THE INCOME TAX THERE IS NO CATEGORICAL FINDING BY THE COMMISSI ONER OF INCOME-TAX THAT THE ORDER OF ASSESSING OFFICER IS E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE EVEN THOUGH THE COMMISSIONER OF INCOME-TAX HAS GIVEN A CATEGORICAL FINDING IN THE SHOW CAUSE NOTICE AND ORDER U/S.263 IS CONSEQUENTIA L TO THE SAME. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD.CIT(A) HAS FURTHER ERRED IN RELYING ON DECISION OF HONBLE I.T.A.T WHO ERRED IN HOLDING THAT IN ORDER U/S.263 OF THE INCOME- TAX THERE IS NO CATEGORICAL FINDING BY THE COMMISS IONER OF INCOME-TAX THAT THE ORDER OF ASSESSING OFFICER IS E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE EVEN THOUGH THE COMMISSIONER OF INCOME-TAX VIDE POINT NO. 2 OF ORD ER U/S.263 OF THE INCOME TAX ACT HAS ENUMERATED THE REASONS FOR W HICH THE ORDER OF ASSESSING OFFICER WAS ERRONEOUS AND PREJUD ICIAL TO THE INTEREST OF REVENUE. 4. AT THE TIME OF HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT IN VIEW OF THE PLEA TAKEN IN THE GROUNDS OF A PPEAL THE ORDER PASSED BY THE LEARNED CIT(A) BE SET ASIDE AND THAT OF THE ASSESSI NG OFFICER BE RESTORED. 5. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE A SSESSEE SUBMITS THAT SINCE THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX UNDER SECTION 263 OF THE ACT HAS BEEN CANCELLED BY THE TRIBUNAL THEREFORE THE CONSEQUENTIAL ITA NO.4613/MUM/2010 SMT. SMITA V MADLANI 3 ORDER PASSED BY THE ASSESSING OFFICER DOES NOT SUR VIVE AND HENCE THE ORDER PASSED BY THE LEARNED CIT(A) IN CANCELING THE SAME BE UPHELD. 6. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND MERIT IN THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT SINCE THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX UNDER SECTION 263 OF THE ACT HAS BEEN CA NCELLED BY THE TRIBUNAL AS UNSUSTAINABLE IN LAW VIDE ORDER DATED 29.10.2009 (S UPRA) THEREFORE WE ARE OF THE VIEW THAT THE CONSEQUENTIAL ORDER PASSED BY THE ASS ESSING OFFICER IN VIEW OF THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME- TAX UNDER SECTION 263 OF THE ACT HAS NO LEGS TO STAND AND ACCORDINGLY WE ARE IN CLINED TO UPHOLD THE ORDER OF THE LEARNED CIT(A) IN ANNULLING THE SAME. THE GROUN DS TAKEN BY THE REVENUE ARE THEREFORE REJECTED. 7. IN THE RESULT THE REVENUES APPEAL STANDS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 222 ND DAY OF JULY 2011. SD. SD. (PRAMOD KUMAR) (D.K. AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED THE 22 ND JULY 2011. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-9 MUMBAI. 4. THE CIT(A)-20 MUMBAI 5. THE DR F BENCH MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR ITAT MUMBAI