St. Soldier Properties & Industries Ltd., New Delhi v. ACIT, New Delhi

ITA 6256/DEL/2012 | 2002-2003
Pronouncement Date: 11-10-2013 | Result: Allowed

Appeal Details

RSA Number 625620114 RSA 2012
Assessee PAN AABCS6304D
Bench Delhi
Appeal Number ITA 6256/DEL/2012
Duration Of Justice 9 month(s) 23 day(s)
Appellant St. Soldier Properties & Industries Ltd., New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 11-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 11-10-2013
Date Of Final Hearing 09-10-2013
Next Hearing Date 09-10-2013
Assessment Year 2002-2003
Appeal Filed On 18-12-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL D.AGRAWAL D.AGRAWAL D.AGRAWAL VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NOS SS S. .. .6256/DEL/2012 6257/DEL/2012 & 6258/DEL/2012 6256/DEL/2012 6257/DEL/2012 & 6258/DEL/2012 6256/DEL/2012 6257/DEL/2012 & 6258/DEL/2012 6256/DEL/2012 6257/DEL/2012 & 6258/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2002 2002 2002 2002- -- -03 2003 03 2003 03 2003 03 2003- -- -04 & 2003 04 & 2003 04 & 2003 04 & 2003- -- -04 0404 04 M/S ST. M/S ST. M/S ST. M/S ST. SOLDIER PROPERTIES & SOLDIER PROPERTIES & SOLDIER PROPERTIES & SOLDIER PROPERTIES & INDUSTRIES LIMITED INDUSTRIES LIMITED INDUSTRIES LIMITED INDUSTRIES LIMITED J JJ J- -- -34 VIKAS PURI 34 VIKAS PURI 34 VIKAS PURI 34 VIKAS PURI NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 018. 110 018. 110 018. 110 018. PAN : PAN : PAN : PAN : AABCS6304D. AABCS6304D. AABCS6304D. AABCS6304D. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX INCOME TAX INCOME TAX INCOME TAX CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -7 7 7 7 ROOM NO.363 3 ROOM NO.363 3 ROOM NO.363 3 ROOM NO.363 3 RD RDRD RD FLOOR FLOOR FLOOR FLOOR ARA CENTRE E ARA CENTRE E ARA CENTRE E ARA CENTRE E- -- -2 JHANDEWALAN 2 JHANDEWALAN 2 JHANDEWALAN 2 JHANDEWALAN EXTN. EXTN. EXTN. EXTN. NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 055. 110 055. 110 055. 110 055. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VED JAIN ADVOCATE AND SHRI V.MOHAN CA. RESPONDENT BY : MS. Y.S.KAKKAR SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL D.AGRAWAL D.AGRAWAL D.AGRAWAL VP VPVP VP : : : : ITA NO.6256/DEL/2012 : ITA NO.6256/DEL/2012 : ITA NO.6256/DEL/2012 : ITA NO.6256/DEL/2012 :- -- - THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-I NEW DELHI DATED 16 TH OCTOBER 2012 FOR THE AY 2002- 03. 2. THE ONLY GROUND RAISED IN THIS APPEAL IS AGAINST THE LEVY OF PENALTY OF ` 1 25 000/- IMPOSED UNDER SECTION 271(1)(C) OF THE IN COME- TAX ACT 1961. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED THE RETURN DECLARING LOSS OF ` 44 37 933/-. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 143(3) ACCEPTING THE LOSS DECLAR ED BY THE ASSESSEE. LATER ON FROM A PERUSAL OF THE CASE RECORD I T WAS NOTICED ITA-6256 TO 6258/D/2012 2 BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD BOOK PROFIT OF ` 22 02 447/- WHICH WAS CHARGEABLE TO TAX UNDER SECTIO N 115JB THEREFORE THE ASSESSING OFFICER REOPENED THE ASSESSMENT BY ISSUING NOTICE UNDER SECTION 148. THEREAFTER THE ASSESSMENT W AS COMPLETED UNDER SECTION 143(3) READ WITH SECTION 147 IN WHICH THE LOSS DECLARED AT ` 44 37 933/- WAS ACCEPTED. HOWEVER THE BOOK PROFIT CHARGEABLE TO TAX UNDER SECTION 115JB WAS CALCULATED AT ` 14 48 929/-. THE ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271(1)(C) FOR FAILURE OF THE ASSESSEE TO DISCLOSE THE BOOK PROFIT WHICH WAS CHARGEABLE TO TAX UNDER SECTION 115J. THE SAME IS SUSTAINED BY THE CIT(A). H ENCE THIS APPEAL BY THE ASSESSEE. 4. AT THE TIME OF HEARING BEFORE US IT IS SUBMITTED B Y THE LEARNED COUNSEL THAT NON-DISCLOSURE OF BOOK PROFIT IN THE COM PUTATION OF INCOME WAS AN INADVERTENT OMISSION BECAUSE ALONGWITH THE RETU RN OF INCOME THE ASSESSEE HAD FURNISHED THE PROFIT & LOSS ACCOUNT AND B ALANCE SHEET WHICH CLEARLY SHOW THE BOOK PROFIT OF ` 22 02 447/-/ THUS THERE WAS NO CONCEALMENT OF THE PRIMARY FACT. IT WAS ONLY THE IN ADVERTENT MISTAKE OF THE ASSESSEES COUNSEL IN NOT CALCULATING THE BOOK PRO FIT CHARGEABLE UNDER SECTION 115JB IN THE COMPUTATION OF INCOME. HE SUBMITTED THAT THE OMISSION WAS NOT ONLY ON THE PART OF THE ASSESSEES CO UNSEL BUT ALSO ON THE PART OF THE ASSESSING OFFICER WHO THOUGH CO MPLETED THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) BUT DID NOT CHARGE TO TAX THE BOOK PROFIT UNDER SECTION 115JB. THAT FROM THE REASONS RECORDED FOR ISSUE OF NOTICE UNDER SECTION 148 AS REPRODUCED BY THE ASSESSING OFFICER IN THE ORDER PASSED UNDER SECTION 143(3)/147 IT IS EVIDENT THAT THE PRIMARY FACT THAT THE ASSESSEE HAD A BOOK PROFIT OF ` 22 02 447/- WAS ALREADY ON RECORD. HE THEREFORE SUBMITTED THAT FOR INADVERTENT OMISSION THE PENALTY MAY NOT BE LEVIED. IN SUPPORT OF THIS CONTENTION HE RELIED UPON THE FOLLOWING DECISIONS:- ITA-6256 TO 6258/D/2012 3 (I) CIT VS. ESCORTS FINANCE LTD. (2009) 28 DTR 293 (DELH I). (II) CIT VS. SANIA MIRZA 259 CTR 386 (AP). (III) CIT VS. SOCIETEX (2012) 259 CTR 325 (DELHI). (IV) PRICEWATERHOUSECOOPERS PVT.LTD. VS. CIT AND ANOTHER (2012) 348 ITR 306 (SC). (V) CIT VS. BENNETT COLEMAN & CO.LTD. (2013) 259 CTR 3 83 (BOMBAY). (VI) CIT VS. MTNL ITA NO.626/2011 (DELHI HIGH COURT). 5. LEARNED DR ON THE OTHER HAND STATED THAT THE ASSE SSEE IS DULY ASSISTED BY COMPETENT CHARTERED ACCOUNTANTS AND THEREF ORE IT CANNOT BE ACCEPTED THAT NON-DISCLOSURE OF BOOK PROFIT FOR TH E PURPOSE OF SECTION 115JB WAS AN INADVERTENT OMISSION. SHE STATED THAT ON THESE FACTS THE DECISION OF HON'BLE JURISDICTIONAL HIGH COU RT IN THE CASE OF CIT VS. ZOOM COMMUNICATION PVT.LTD. (2010) 327 ITR 510 WOULD BE SQUARELY APPLICABLE. SHE FURTHER SUBMITTED THAT LEAR NED CIT(A) HAS DISCUSSED THE FACTS AND LEGAL ISSUE IN DETAIL AND HAS RIG HTLY SUSTAINED THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE A CT. THE SAME SHOULD BE SUSTAINED. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND T HAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISI ON OF HONBLE APEX COURT IN THE CASE OF PRICEWATERHOUSECOOPERS PVT.L TD. (SUPRA) WHEREIN THEIR LORDSHIPS HELD AS UNDER:- 17. 17. 17. 17. HAVING HEARD LEARNED COUNSEL FOR THE PARTIES WE ARE OF THE VIEW THAT THE FACTS OF THE CASE ARE RATHER PEC ULIAR AND SOMEWHAT UNIQUE. THE ASSESSEE IS UNDOUBTEDLY A REPUTED FIRM AND HAS GREAT EXPERTISE AVAILABLE WITH IT. NOTWITHSTANDING THIS IT IS POSSIBLE THAT EVEN THE ASSESSEE COULD MAKE A 'SILLY' MISTAKE AND INDEED THIS HAS BEEN ITA-6256 TO 6258/D/2012 4 ACKNOWLEDGED BOTH BY THE TRIBUNAL AS WELL AS BY THE H IGH COURT. 18. 18. 18. 18. THE FACT THAT THE TAX AUDIT REPORT WAS FILED ALO NG WITH THE RETURN AND THAT IT UNEQUIVOCALLY STATED THAT THE PROVISION FOR PAYMENT WAS NOT ALLOWABLE UNDER SECTION 40A(7) OF THE ACT INDICATES THAT THE ASSESSEE MADE A COMPUTATION ERROR IN ITS RETURN OF INCOME. APART FRO M THE FACT THAT THE ASSESSEE DID NOT NOTICE THE ERROR IT WA S NOT EVEN NOTICED EVEN BY THE ASSESSING OFFICER WHO FRAMED T HE ASSESSMENT ORDER. IN THAT SENSE EVEN THE ASSESSING OFFICER SEEMS TO HAVE MADE A MISTAKE IN OVERLOOKING TH E CONTENTS OF THE TAX AUDIT REPORT. 19. 19. 19. 19. THE CONTENTS OF THE TAX AUDIT REPORT SUGGEST THAT THERE IS NO QUESTION OF THE ASSESSEE CONCEALING ITS INCOME . THERE IS ALSO NO QUESTION OF THE ASSESSEE FURNISHING ANY INACCURATE PARTICULARS. IT APPEARS TO US THAT ALL THA T HAS HAPPENED IN THE PRESENT CASE IS THAT THROUGH A BONA FI DE AND INADVERTENT ERROR THE ASSESSEE WHILE SUBMITTING ITS RETURN FAILED TO ADD THE PROVISION FOR GRATUITY TO ITS TOTAL INCOME. THIS CAN ONLY BE DESCRIBED AS A HUMAN ERROR WH ICH WE ARE ALL PRONE TO MAKE. THE CALIBRE AND EXPERTISE OF THE ASSESSEE HAS LITTLE OR NOTHING TO DO WITH THE INADVERTEN T ERROR. THAT THE ASSESSEE SHOULD HAVE BEEN CAREFUL CANNO T BE DOUBTED BUT THE ABSENCE OF DUE CARE IN A CASE SUC H AS THE PRESENT DOES NOT MEAN THAT THE ASSESSED IS GUILTY OF EITHER FURNISHING INACCURATE PARTICULARS OR ATTEMPTIN G TO CONCEAL ITS INCOME. 20. 20. 20. 20. WE ARE OF THE OPINION GIVEN THE PECULIAR FACTS OF THIS CASE THAT THE IMPOSITION OF PENALTY ON THE ASSESSEE IS NO T JUSTIFIED. WE ARE SATISFIED THAT THE ASSESSEE HAD COMMITT ED AN INADVERTENT AND BONA FIDE ERROR AND HAD NOT INTE NDED TO OR ATTEMPTED TO EITHER CONCEAL ITS INCOME OR FURNISH INACCURATE PARTICULARS. 21. 21. 21. 21. UNDER THESE CIRCUMSTANCES THE APPEAL IS ALLOWED AN D THE ORDER PASSED BY THE CALCUTTA HIGH COURT IS SET ASIDE . NO COSTS. ITA-6256 TO 6258/D/2012 5 7. THE FACTS OF THE ASSESSEES CASE ARE IDENTICAL TO THE FACTS BEFORE THE HONBLE APEX COURT IN THE CASE OF PRICEWATERHOUSE COOPERS PVT.LTD. (SUPRA). IN THAT CASE ALSO THE ASSESSEE DID NOT ADD THE PROVISION FOR GRATUITY WHICH IS DISALLOWABLE UNDER SECTION 40A(7) T HOUGH THE SAME WAS DISCLOSED IN THE AUDIT REPORT. BEFORE THE HONBLE APEX COURT IT WAS PLEADED ON BEHALF OF THE REVENUE THAT THE ASSESSEE I S A REPUTED FIRM OF CHARTERED ACCOUNTANTS AND THEREFORE ITS CLA IM THAT IT MADE A MISTAKE IN CLAIMING THE DEDUCTION FOR PROVISION OF GR ATUITY CANNOT BE ACCEPTED. HONBLE APEX COURT DID NOT ACCEPT THE AR GUMENT PUT FORTH ON BEHALF OF THE DEPARTMENT AND CANCELLED THE PENAL TY. THE FACTS OF THE ASSESSEES CASE ARE IDENTICAL TO THE FACTS BEFORE THE HONBLE APEX COURT IN THE CASE OF PRICEWATERHOUSECOOPERS PVT.LTD. ( SUPRA). WE THEREFORE RESPECTFULLY FOLLOWING THE SAME CANCEL T HE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. ITA NOS.6257/DEL/2012 & 6258/DEL/2012 : ITA NOS.6257/DEL/2012 & 6258/DEL/2012 : ITA NOS.6257/DEL/2012 & 6258/DEL/2012 : ITA NOS.6257/DEL/2012 & 6258/DEL/2012 :- -- - 8. IN ITA NO.6257/DEL/2012 THE ASSESSEE HAS RAISED THE F OLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LEARNED CIT(A) IS BAD AS THE SAME H AS BEEN PASSED WITHOUT GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD IN CLEAR VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N REJECTING THE APPLICATION OF THE ASSESSEE FOR CONDONATI ON OF DELAY. ITA-6256 TO 6258/D/2012 6 3(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N CONFIRMING THE ORDER PASSED UNDER SECTION 147 READ W ITH SECTION 148 IGNORING THE FACT THAT THE SAME WAS BAD IN THE EYE OF LAW AS THE CONDITION AND PROCEDURE PRESCRIBED UNDER THE STATUTE HAVE NOT BEEN SATISFIED AND COMPLIED WITH. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ORDER PASSE D BY A.O. AS THE REASSESSMENT PROCEEDINGS INITIATED BY THE LEARNED A.O. ARE BAD IN THE EYE OF LAW AS THE REASONS RECORDED FOR THE ISSUE OF NOTICE UNDER SECTION 148 AR E BAD IN THE EYE OF LAW AND ARE CONTRARY TO THE FACTS. 4(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LEARNED AO IS BAD BOTH IN THE EYE OF LAW AND ON FACTS AS THE SAME HAS BEEN REOPENED ON THE BASIS OF REASONS WITHOUT THERE BEING ANY WHISPER THAT T HE INCOME HAS ESCAPED DUE TO THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT AS THE SAME HAS BEEN REOPENED AFTER A PERIOD OF FOUR YEARS FROM THE END OF THE REL EVANT ASSESSMENT YEAR AND THE ASSESSMENT HAS ALREADY BEEN MADE UNDER SECTION 143(3) OF THE ACT. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N CONFIRMING THE ORDER DESPITE THE FACT THAT THE ASSESSEE HAS ALREADY DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF A.O. IN ASSESSING THE INCOME AT RS.14 48 929 UNDER SECTION 115JB OF THE ACT. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER DESPITE THE FACT THAT THE APPLI CATION OF THE ASSESSEE BEFORE THE HONBLE SETTLEMENT COMMISSION WAS ADMITTED FOR THE SAID ASSESSMENT YEAR AND AS SUCH THE PROCEEDINGS ARE BAD IN LAW. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. ITA-6256 TO 6258/D/2012 7 9. IN ITA NO.6258/DEL/2012 FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESSEE :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (CIT(A)) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING PENALTY OF RS.80 000/- LEVIED BY A.O. UND ER SECTION 271(1)(C) OF THE ACT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN IGNORING THE FACT THAT THE INCOME RETURNED IS ON THE BASIS OF PROVISIONS OF SECTION 115JB AND THE INCOME ASSESSED IS ALSO ON THE BASIS OF THE PROVISIONS OF SECTION 115JB AND THERE BEING NO DIFFERENCE IN THE RETURNED INCOME AN D THE ASSESSED INCOME PENALTY UNDER SECTION 271(1)(C) IS NOT LEVIABLE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LEARNED CIT(A) IS BAD AS THE SAME H AS BEEN PASSED WITHOUT GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD IN CLEAR VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN IGNORING THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE DISCLOSED ALL THE FACTS AND AS SUCH IT IS NEITHER A CASE O F CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ABOVE PENALTY DESPITE THE FACT THAT T HE ASSESSEE HAS MADE FULL AND TRUE DISCLOSURE WITH ALL THE FACTS AND FIGURES AND AS SUCH THERE WAS NO CONCEALMENT OF INCOME ON THE PART OF THE ASSESSEE. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN ITA-6256 TO 6258/D/2012 8 CONFIRMING THE PENALTY DESPITE THE FACT THAT THE APP LICATION OF THE ASSESSEE BEFORE THE HONBLE SETTLEMENT COMMISSION WAS ADMITTED FOR THE SAID ASSESSMENT YEAR AND AS SUCH THE PROCEEDINGS ARE BAD IN LAW. 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING PENALTY U/S 271(1)(C) AS NO FINDING HAS BEE N GIVEN ON MERIT REGARDING CONCEALMENT IN THE ORDER P ASSED BY THE A.O. 9. THE APPELLANT CRAVES LEAVE TO ADD AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 10. AT THE TIME OF HEARING BEFORE US IT WAS POINTED OUT BY THE LEARNED COUNSEL THAT FOR AY 2003-04 THE ASSESSEE HAS FIL ED THE PETITION BEFORE THE HONBLE SETTLEMENT COMMISSION WHICH ADMIT TED THE SAME VIDE ORDER DATED 18 TH SEPTEMBER 2006 PASSED UNDER SECTION 245D(1). HE STATED THAT AS PER PROVISIONS OF SECTION 245F(2) ON CE AN APPLICATION IS ADMITTED BY THE SETTLEMENT COMMISSION ALL JURISDICTION LIES WITH THE SETTLEMENT COMMISSION AND NOT WITH THE I NCOME TAX AUTHORITIES. THAT APPEAL IN ITA NO.6257/DEL/2012 HA S ORIGINATED FROM THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) READ WIT H SECTION 147 ON 31 ST DECEMBER 2009 WHILE THE APPEAL IN ITA NO.6258/DEL /2012 ORIGINATED FROM THE ORDER UNDER SECTION 271(1)(C) D ATED 30 TH JUNE 2010. THAT BOTH THE ABOVE ORDERS WERE PASSED AFTER TH E ORDER OF THE SETTLEMENT COMMISSION UNDER SECTION 245D(1) DATED 18 TH SEPTEMBER 2006. THAT AT THE RELEVANT TIME THE INCOME TAX AU THORITIES HAD NO JURISDICTION TO PASS SUCH ORDERS. THEREFORE THE SAME SH OULD BE QUASHED. 11. LEARNED DR ON THE OTHER HAND STRONGLY OBJECTED TO THE ASSESSEES SUBMISSION AND SHE STATED THAT IN THE ORDER OF T HE SETTLEMENT COMMISSION DATED 18 TH SEPTEMBER 2006 THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. 2003-04 IS NOT COVERED AND THEREFORE ITA-6256 TO 6258/D/2012 9 THE ASSESSEES PLEA IN THIS REGARD CANNOT BE ACCEPTED. SHE THEREFORE SUBMITTED THAT THE ORDER OF LEARNED CIT(A) SHOULD BE SUSTAINED. 12. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. AT PAGE 2 3 OF THE ASSESSEES PAPER BOOK THE ASSESSEE HAS FURNISHED THE COPY OF ORDER UNDER SECTION 245D(1) PASSED BY THE INCOME TAX SETTLE MENT COMMISSION. AT PAGE 1 THE NAME AND ADDRESS OF THE APP LICANT IS GIVEN IN COLUMN 1 WHICH INCLUDED THE NAME OF THE ASSE SSEE. AT COLUMN 4 ASSESSMENT YEARS ARE MENTIONED WHICH ALSO INCLUDED AY 2003-04. AT PAGE 5 OF THE ORDER OF THE SETTLEMENT COMMISSION THE SETTLEMENT COMMISSION HAS CONSIDERED THE PREVIOUS APPLICATION FILED BY THE ASSESSEE AND THE SUBSEQUENT APPLICATION WHICH IS TERMED A S SECOND APPLICATION FILED BY THE ASSESSEE. FOR READY REFERENCE THE SAME IS REPRODUCED BELOW:- ST. SOLDIER PROPERTIES & INDUSTRIES LTD. 1 ST APPLICATION U/S 245C(1) 2 ND APPLICATION U/S 245C(1) (I) ASSTT YEAR 1990-91 TO 2000-01 (1.4.89 TO 20.9.1999) AND (I) ASSTT. YEAR 1990-91 TO 2000-01 (1.4.89 TO 20.9.1999) (SAME) (II) ASSTT YEAR 2000-01 (21.9.1999 TO 31.3.2000) (II) ASSTT. YEAR 2000-01 (21.9.1999 TO 31.3.2000) (SAME) (III) ASSTT YEAR 1997-98 (III) NOT FILED (NOT SAME) (IV) ASSTT YEAR 1999-2000 (IV) ASSTT YEAR 1999-2000 (SAME) (V) NOT FILED (V) ASSTT YEAR 2003-04 (NOT SAME) 13. FROM THE ABOVE IT IS EVIDENT THAT WHILE IN THE FIRST APPLICATION THE ASSESSEE HAS COVERED THE BLOCK PERIOD AND ASSESSMENT YEARS 2 000-01 1997-98 AND 1999-2000. THE ABOVE APPLICATION WAS NO T ADMITTED BY THE SETTLEMENT COMMISSION. IN THE SECOND APPLICATION THE ASSESSEE COVERED THE BLOCK PERIOD AND ASSESSMENT YEARS 2000-01 1999-2000 AND 2003-04. THUS ASSESSMENT YEAR 2003-04 IS DULY COVER ED BY THE ITA-6256 TO 6258/D/2012 10 ORDER OF THE SETTLEMENT COMMISSION PASSED UNDER SECTION 245D(1) ON 19 TH JUNE 2006 WHEREIN THE ASSESSEES SECOND APPLICATION WA S ADMITTED. THAT SECTION 245F(2) OF THE INCOME-TAX A CT READS AS UNDER:- 245F. 245F. 245F. 245F. (2) WHERE AN APPLICATION MADE UNDER SECTION 24 5C HAS BEEN ALLOWED TO BE PROCEEDED WITH UNDER SECTION 245D THE SETTLEMENT COMMISSION SHALL UNTIL AN ORDER IS PASSED UNDER SUB-SECTION (4) OF SECTION 245D HAVE SUBJECT TO THE PROVISIONS OF SUB-SECTION (3) OF THAT SECT ION EXCLUSIVE JURISDICTION TO EXERCISE THE POWERS AND PERFO RM THE FUNCTIONS OF AN INCOME-TAX AUTHORITY UNDER THIS ACT IN RELATION TO THE CASE : [PROVIDED PROVIDED PROVIDED PROVIDED THAT WHERE AN APPLICATION HAS BEEN MADE UND ER SECTION 245C ON OR AFTER THE 1ST DAY OF JUNE 2007 T HE SETTLEMENT COMMISSION SHALL HAVE SUCH EXCLUSIVE JURISDICTION FROM THE DATE ON WHICH THE APPLICATION WAS MADE: PROVIDED FURTHER PROVIDED FURTHER PROVIDED FURTHER PROVIDED FURTHER THAT WHERE (I) AN APPLICATION MADE ON OR AFTER THE 1ST DAY OF JUNE 2007 IS REJECTED UNDER SUB-SECTION (1) OF SECTION 245D; OR (II) AN APPLICATION IS NOT ALLOWED TO BE PROCEEDED WITH UNDER SUB-SECTION (2A) OF SECTION 245D OR AS THE CASE MAY B E IS DECLARED INVALID UNDER SUB-SECTION (2C) OF THAT SECTIO N; OR (III) AN APPLICATION IS NOT ALLOWED TO BE FURTHER PR OCEEDED WITH UNDER SUB-SECTION (2D) OF SECTION 245D THE SETTLEMENT COMMISSION IN RESPECT OF SUCH APPLICATI ON SHALL HAVE SUCH EXCLUSIVE JURISDICTION UPTO THE DATE O N WHICH THE APPLICATION IS REJECTED OR NOT ALLOWED T O BE PROCEEDED WITH OR DECLARED INVALID OR NOT ALLOW ED TO BE FURTHER PROCEEDED WITH AS THE CASE MAY BE.]. 14. FROM THE ABOVE IT IS EVIDENT THAT ONCE THE SETT LEMENT COMMISSION ALLOWS UNDER SECTION 245D THE SETTLEMENT PET ITION TILL THE FINAL ORDER IS PASSED UNDER SECTION 245D(4) THE SETTL EMENT COMMISSION WILL HAVE EXCLUSIVE JURISDICTION TO EXERCISE THE POWERS AND ITA-6256 TO 6258/D/2012 11 PERFORM THE FUNCTIONS OF INCOME TAX AUTHORITIES UNDER THIS ACT IN RELATION TO THE SAID CASE. ADMITTEDLY THE ORDER OF THE SETTLEMENT COMMISSION UNDER SECTION 245D(1) IS DATED 18 TH SEPTEMBER 2006 AND THEREAFTER FOR THE YEARS COVERED BY THE SETTLEMENT P ETITION IT IS THE SETTLEMENT COMMISSION WHO HAS EXCLUSIVE JURISDICTION RE LATING TO ALL INCOME TAX MATTERS OF THOSE YEARS. THEREFORE THE ASSE SSING OFFICER WHO PASSED THE ORDER UNDER SECTION 143(3) READ WITH S ECTION 147 ON 31 ST DECEMBER 2009 AND THE ASSESSING OFFICER WHO PASSED THE ORDER UNDER SECTION 271(1)(C) ON 30TH JUNE 2010 HAD NO JURISDICTION TO PASS SUCH ORDERS. WE THEREFORE QUASH THE SAME. 15. IN THE RESULT ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 11 TH OCTOBER 2013. SD/- SD/- ( (( (I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 11.10.2013 VK. COPY FORWARDED TO: - 1. APPELLANT : M/S ST. SOLDIER PROPERTIES & INDUSTRIE S LIMITED M/S ST. SOLDIER PROPERTIES & INDUSTRIES LIMITED M/S ST. SOLDIER PROPERTIES & INDUSTRIES LIMITED M/S ST. SOLDIER PROPERTIES & INDUSTRIES LIMITED J JJ J- -- -34 VIKAS PURI NEW DELHI 34 VIKAS PURI NEW DELHI 34 VIKAS PURI NEW DELHI 34 VIKAS PURI NEW DELHI 110 018. 110 018. 110 018. 110 018. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TAX ASSISTANT COMMISSIONER OF INCOME TAX ASSISTANT COMMISSIONER OF INCOME TAX ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -7 ROOM NO.363 3 7 ROOM NO.363 3 7 ROOM NO.363 3 7 ROOM NO.363 3 RD RDRD RD FLOOR FLOOR FLOOR FLOOR ARA CENTRE ARA CENTRE ARA CENTRE ARA CENTRE E E E E- -- -2 JHANDEWALAN EXTN. 2 JHANDEWALAN EXTN. 2 JHANDEWALAN EXTN. 2 JHANDEWALAN EXTN. NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 055. 110 055. 110 055. 110 055. 3. CIT 4. CIT(A) 5. DR ITAT ASSISTANT REGISTRAR