M/S. VAN OORD DREDGING AND MARINE CONTRACTORS BV ( FORMERLY KNOWN AS BALLAST HAM DREDGIND BV), MUMBAI v. THE ADIT (IT) 2(2), MUMBAI

ITA 6348/MUM/2007 | 2001-2002
Pronouncement Date: 22-12-2010 | Result: Partly Allowed

Appeal Details

RSA Number 634819914 RSA 2007
Bench Mumbai
Appeal Number ITA 6348/MUM/2007
Duration Of Justice 3 year(s) 2 month(s) 10 day(s)
Appellant M/S. VAN OORD DREDGING AND MARINE CONTRACTORS BV ( FORMERLY KNOWN AS BALLAST HAM DREDGIND BV), MUMBAI
Respondent THE ADIT (IT) 2(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-12-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted L
Tribunal Order Date 22-12-2010
Date Of Final Hearing 20-12-2010
Next Hearing Date 20-12-2010
Assessment Year 2001-2002
Appeal Filed On 12-10-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES L MUMBAI BEFORE SHRI R.S.SYAL AM AND SHRI V.DURGA RAO JM ITA NO.6348/MUM/2007 : ASST.YEAR 2001-2002 M/S.VAN OORD DREDGING AND MARINE CONTRACTORS BV (FORMERLY KNOWN AS BALLAST HAM DREDGING BV) C/O.S.R.BATLIBOI & CO. 18 TH FLOOR EXPRESS TOWARS NARIMAN POINT MUMBAI 400 021. PA NO.AAACH3500M. VS. THE ASSTT.DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION) 2(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PORUS KAKA RESPONDENT BY : SHRI HEMANT J.LAL O R D E R PER R.S.SYAL AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 14.08.2007 UPHOLDING THE PENALTY IMPOSED BY THE ASSESSSING OFFICER U/S 271(1) IN R ELATION TO THE ASSESSMENT YEAR 2001-2002. 2. AT THE VERY OUTSET THE LEARNED COUNSEL FOR THE A SSESSEE REQUESTED FOR THE ADMISSION OF ADDITIONAL GROUND RAISING THE QUESTIO N OF LIMITATION FOR THE FIRST TIME BEFORE THE TRIBUNAL AS UNDER:- THE LEARNED CIT(A) ERRED IN CONFIRMING LEVY OF PEN ALTY WHICH IS OTHERWISE BARRED BY LIMITATION VOID AND BAD IN LAW . 3. RELYING ON THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION VS. CIT [(1998) 229 ITR 383 (SC)] THE LEARNED A.R. CONTENDED THAT THE QUESTION OF LIMITAT ION RAISED THROUGH THIS ADDITIONAL GROUND WAS A PURE QUESTION OF LAW AND DESERVED TO B E ADMITTED. ON THE OTHER HAND ITA NO.6348/MUM/2007 M/S.VAN OORD DREDGING AND MARINE CONTRACTORS BV. 2 THE LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED THE ADMISSION OF ADDITIONAL GROUND. 4. ON A PERTINENT QUERY TO THE LEARNED DEPARTMENTAL REPRESENTATIVE AS TO WHETHER ANY FRESH INVESTIGATION OF FACTS FOR THE AD JUDICATION OF THE ISSUE RAISED THROUGH THE ADDITIONAL GROUND WAS NECESSARY HE R EPLIED IN NEGATIVE. IT THEREFORE BECOMES EVIDENT THAT NO FRESH INVESTIGATION OF FACT S IS REQUIRED FOR THE PURPOSES OF DECIDING THE QUESTION OF LIMITATION RAISED THROUGH THIS ADDITIONAL GROUND. IN SUCH CIRCUMSTANCES AND RESPECTFULLY FOLLOWING THE AFOREN OTED APEX COURT JUDGMENT IN THE CASE OF NTPC (SUPRA) WE ADMIT THIS ADDITIONAL GROUND. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTE D THAT THE QUESTION OF LIMITATION RAISED THROUGH THIS ADDITIONAL GROUND WA S NOT TAKEN UP EITHER BEFORE THE A.O. OR BEFORE THE LEARNED FIRST APPELLATE AUTHORIT Y. IT WAS THEREFORE CONTENDED THAT THE SAME SHOULD NOT BE DECIDED BY THE TRIBUNAL FOR THE FIRST TIME ON MERITS. THE LEARNED A.R. CANDIDLY ADMITTED THAT THIS ISSUE WAS NOT AGITATED BEFORE EITHER OF THE AUTHORITIES BELOW. THUS IT IS CLEAR THAT THE QU ESTION OF LIMITATION RAISED THROUGH THE INSTANT ADDITIONAL GROUND IS COMING UP BEFORE US FOR THE FIRST TIME. AS THIS ISSUE HAS NOT BEEN DECIDED BY THE AUTHORITIES BELOW IN OUR CONSIDERED OPINION THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE MATTER IS RESTORED TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR RENDERING HIS DECISION ON T HE QUESTION OF LIMITATION. WE ARE REMINDED OF THE JUDGEMENT OF THE HONBLE MADHYA PRA DESH HIGH COURT IN CIT VS. TOLLARAM HASOSMAL [(2008) 298 ITR 22 (MP)] IN WHICH THE TRIBUNAL PERMITTED THE ASSESSEE TO RAISE ADDITIONAL GROUNDS TREATING THEM TO BE LEGAL GROUND IN APPEAL FOR THE FIRST TIME AND THEREAFTER ANNULLED THE ASSESSME NT ON THE BASIS OF SUCH ADDITIONAL GROUNDS. WHEN THIS ORDER WAS ASSAILED BEFORE THE H ONBLE HIGH COURT THEIR LORDSHIPS HELD THAT : THE TRIBUNAL HAVING PERMITTE D THE ASSESSEE TO RAISE FOUR ADDITIONAL GROUNDS TREATING THEM TO BE LEGAL GROUND S IN APPEAL FOR THE FIRST TIME SHOULD HAVE SET ASIDE THE ORDER OF THE CIT(A) AND R EMANDED THE CASE TO THE CIT(A) ITA NO.6348/MUM/2007 M/S.VAN OORD DREDGING AND MARINE CONTRACTORS BV. 3 FOR DECIDING THE APPEAL BY CIT(A) AFRESH. IN VIEW OF THE ABOVE JUDGEMENT WE REMIT THIS MATTER TO THE FILE OF THE LD. CIT(A) FOR TAKING A DECISION ON THIS ISSUE AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO CONTEN DED THAT THE LEARNED CIT(A) BE DIRECTED TO CONSIDER THE QUESTION ON MERITS AFRE SH IN VIEW OF THE TRIBUNAL PASSING ORDER ON THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IN QUANTUM PROCEEDINGS. IT WAS STATED THAT WHILE AFFIRMING T HE PENALTY THE LEARNED CIT(A) TOOK SUPPORT FROM THE ORDER PASSED BY THE TRIBUNAL IN QUANTUM PROCEEDINGS WHICH HAS BEEN PARTLY MODIFIED IN THE ORDER U/S 254(2) OF THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OBJECTED TO TH IS SUBMISSION ADVANCED ON BEHALF OF THE ASSESSEE BY STATING THAT THE REFERENC ES MADE BY THE LEARNED AUTHORISED REPRESENTATIVE TO CERTAIN PORTIONS OF THE ORDER U/ S 254(2) DID NOT REPRESENT THE REASONING OF THE TRIBUNAL BUT WAS REPRODUCTION FROM CERTAIN JUDGMENTS. 7. NOW THE ADDITIONAL GROUND TAKEN BY THE AS SESSEE FOR THE FIRST TIME BEFORE US GOES TO THE QUESTION OF LIMITATION AND THE RESULTAN T JURISDICTION TO PASS OR NOT TO PASS THE PENALTY ORDER. AS WE HAVE NOT HEARD THE PARTIE S ON MERITS OF THE CASE IN VIEW OF OUR PROPOSED DECISION IN THE OPEN COURT TO WHICH B OTH THE SIDES AGREED FOR REMITTING THE MATTER TO THE LEARNED CIT(A) IN RESPE CT OF THE LIMITATION ISSUE WHICH WAS TAKEN UP BEFORE US FOR THE FIRST TIME WE REFRA IN OURSELVES FROM GIVING ANY FURTHER DIRECTION TO THE LD. CIT(A) EXCEPT FOR DECI DING THE QUESTION OF LIMITATION. THE SITUATION WOULD HAVE BEEN OTHERWISE IF THE ASSE SSEE HAD NOT TAKEN ADDITIONAL GROUND OR HAD NOT PRESSED THE SAME BEFORE US IN WHICH CASE WE WOULD HAVE DEALT WITH THE CASE ON MERITS. HAVING NOT DONE SO WE AR E UNABLE TO DIRECT THE LEARNED CIT(A) TO CONSIDER THE MERITS OF THE CASE AFRESH. I T IS NOT POSSIBLE TO HEAR THE APPEAL IN A TRUNCATED MANNER. IT IS THEREFORE MADE CLEA R THAT THE LEARNED CIT(A) WILL DECIDE ONLY THE QUESTION OF LIMITATION IN THE FRES H PROCEEDINGS TO BE TAKEN UP ITA NO.6348/MUM/2007 M/S.VAN OORD DREDGING AND MARINE CONTRACTORS BV. 4 BEFORE HIM. IF THE SAME IS DECIDED IN ASSESSEES F AVOUR NATURALLY THE MATTER WOULD COME TO AN END AS THE PENALTY ORDER WOULD AUT OMATICALLY COME TO NAUGHT. IF HOWEVER THE QUESTION OF LIMITATION IS DECIDED AGA INST THE ASSESSEE THERE WOULD NOT BE ANY IMPEDIMENT ON ASSESSEE IN ASSAILING THE QUES TION OF LIMITATION AS WELL AS MERITS BEFORE THE TRIBUNAL. 8. IN THE RESULT THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 22 ND DAY OF DECEMBER 2010. SD/- SD/- ( V.DURGA RAO ) ( R.S.SYAL ) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI : 22 ND DECEMBER 2010. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXXI MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI.