Suzlon Gujarat Wind Park Ltd, Ahmedabad v. The Pr. CIT-4, Ahmedabad

ITA 719/AHD/2019 | 2015-2016
Pronouncement Date: 26-11-2019 | Result: Dismissed

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Appeal Details

RSA Number 71920514 RSA 2019
Assessee PAN AAICS2717D
Bench Ahmedabad
Appeal Number ITA 719/AHD/2019
Duration Of Justice 7 month(s)
Appellant Suzlon Gujarat Wind Park Ltd, Ahmedabad
Respondent The Pr. CIT-4, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 26-11-2019
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 26-11-2019
Last Hearing Date 19-11-2019
First Hearing Date 19-11-2019
Assessment Year 2015-2016
Appeal Filed On 25-04-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI PRADIP KUMAR KEDIA ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD JUDICIAL MEMBER) ITA. NO: 719/AHD/2019 (ASSESSMENT YEAR: 2015-16) SUZLON GUJARAT WIND PARK LTD. SUZLON 5 SHRIMALI SOCIETY NR. KRISHNA COMPLEX NAVRANGPURA AHMEDABAD-9 V/S PRINCIPAL COMMISSIONER OF INCOME-TAX-4 AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAICS 2717D APPELLANT BY : SHRI TUSHAR HEMANI SR. A DV. WITH SHRI P.B. PARMA R RESPONDENT BY : SHRI O.P. SHARMA CIT/ D.R. ( )/ ORDER DATE OF HEARING : 19 -11-201 9 DATE OF PRONOUNCEMENT : 26 -11-2019 PER MAHAVIR PRASAD JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. PR. CIT(A)-4 AHMEDABAD DATED 28.03.2019 PERTAINING TO A.Y. 2015-16. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: ITA NO. 719/ AHD/2019 . A.Y. 2015-1 6 2 1.THE ID. PCIT HAS GROSSLY ERRED IN LAW AND ON FACT S IN ASSUMING JURISDICTION U/S.263 OF THE ACT ON THE ERRONEOUS GROUND THAT TH E IMPUGNED ASSESSMENT ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 2.ASSESSMENT ORDER WHICH IS SOUGHT TO BE REVISED AS PER NOTICE ISSUED U/S 263 OF THE ACT BY LD PCIT IS NOT OF ASSESSEE AS EVIDENT FR OM THE PARA-5 OF THE SHOW CAUSE NOTICE WHICH MENTIONED THAT THE NOTICE IS GIV EN FOR REVISION OF ORDER PASSES BY LTO-WARD-4(2)(2) AHMEDABAD WHEREAS THE ASSE SSMENT OF APPELLANT IS DONE BY DCIT-4(1)(1) AHMEDABAD AND THEREFORE ENTIR E PROCEEDINGS IS NULL AND VOID BEING BASED ON THE ERRONEOUS FACTS. 3.LD. PCIT GROSSLY ERRED IN NOT APPRECIATING THAT I N ORDER TO INVOKE S.263 TWO CONDITIONS MUST BE FULFILLED VIZ. THE IMPUGNED ASSE SSMENT ORDER MUST BE ERRONEOUS AND THAT ERROR MUST BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN THE PRESENT CASE ID. AO HAS PASSED THE REASONED ASSESS MENT ORDER AFTER ANALYZING ALL DETAILS AND THEREFORE THERE WAS NO ERROR IN THE IMPUGNED ASSESSMENT ORDER SO AS TO JUSTIFY ACTION U/S.263 OF THE ACT. UNDER THE CIRCUMSTANCES THE VERY ASSUMPTION OF POWER U/S.263 OF THE ACT IS UNJUST IFIED AND BAD IN LAW AND THEREFORE ORDER U/S.263 OF THE ACT DESERVED TO BE QUASHED. 1) LD. PCIT HAS ERRED IN CONSIDERING ASSESSMENT ORDER PREJUDICIAL TO THE REVENUE PARTICULARLY WHEN THE TAX EFFECT BECAUSE OF AN ORDER TO BE PASSED BY THE ASSESSING OFFICER WOULD BE NIL IN VIEW OF SUBSTANTI AL LOSSES AND THEREFORE EVEN ONE ASSUMES SUCH ORDER TO BE ERRONEOUS BEING PR EJUDICIAL TO THE INTEREST OF THE REVENUE IS NOT OPEN TO REVISION UNDER SECTION 263 OF THE ACT. 4.THE SUBJECT ORDER U/S. 263 PASSED BY ID. PCIT IS ILLEGAL AND BAD IN LAW IN ABSENCE OF ANY FINDING OF ID. PCIT HOW THE ALLEGED ERROR OF AO HAS RESULTED IN LOSS OF REVENUE PARTICULARLY WHEN S.43CA OF THE ACT IS NOT APPLICABLE TO THE APPELLANT NOT BEING THE SELLER OF LAND. 1) THE ID PCIT HAS FURTHER ERRED IN LAW IN NOT COM ING TO ANY CONCRETE CONCLUSION MERELY DIRECTED THE AO TO FRAME THE ASSESSMENT ORDE R AFRESH. WITHOUT THERE BEING ANY POSITIVE FINDING ABOUT ORDER BEING ERRONE OUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE THE ACTION OF ID. PCIT OF GIVING GENERAL DIRECTION OF MAKING FRESH ASSESSMENT BY AO IS WITHOUT JURISDICTI ON AND ILLEGAL SINCE THE PROCEEDINGS U/S 263 ARE NOT SAME AS THAT OF REASSES SMENT U/S 148 WHICH LD. PCIT HAS FAILED TO APPRECIATE AND HENCE DESERVES TO BE Q UASHED. 2) LD PCIT HAS ERRED IN PASSING IMPUGNED ORDER ON A GROUND THAT AO HAS FAILED TO EXAMINE ADDITION U/S 43 CA WHEREAS HE ISSUES SHOW C AUSE NOTICE ON THE GROUND THAT AO HAS FAILED TO EXAMINE THE PROVISION OF SECT ION 50C AND ASSESSEE HAS SOLD CAPITAL ASSETS FOR WHICH WHILE COMPUTING CAPITAL GA IN PROVISION OF SECTION 50C HAVE NOT BEEN APPLIED WHICH IS ABSOLUTELY ERRONEOUS AND THEREFORE THE ITA NO. 719/ AHD/2019 . A.Y. 2015-1 6 3 PROCEEDINGS ITSELF BEING BASED ON THE WRONG PREMISE S IS VOID-AB-INITIO AND HENCE NEEDS TO BE QUASHED. 3) LD PCIT HAS FAILED TO APPRECIATE THE 'RECORD' AVA ILABLE AT THE TIME OF ISSUANCE OF NOTICE U/S 263 IN TOTALITY AND IGNORED THE FACT THAT ON THE VERY ISSUE ASSESSEE GOT NOTICE FROM LD AO BASED ON AUDIT QUERY AND ASSE SSEE SUBMITTED DETAIL RESPONSE AND AUDIT QUERY WAS DROPPED AS PER UNDERST ANDING OF APPELLANT. HENCE THE REVISION PROPOSAL BY LD. PCIT WAS VOID-AB-INITI O BEING BASED ON INCORRECT AND INCOMPLETE COMPREHENSION OF THE RECORDS. FURTHER TH E LD. PCIT HAS ALSO FAILED TO TAKE COGNIZANCE OF THE FACT THAT THE AUDIT QUERY HA S BEEN DROPPED ON THE SUBJECT ISSUE AND THEREFORE THERE WAS NO CASE FOR PASSING A NY ORDER U/S 263. 5. THE LD. PCIT HAS ERRED IN PASSING IMPUGNED ORDER WITHOUT APPRECIATING THE FACT THAT PROCEEDINGS U/S 263 CANNOT BE INITIATED TO REP LACE THE OPINION OF THE AO. 6. LD. PCIT HAS ERRED IN NOT CONSIDERING VARIOUS FA CTS SUBMISSIONS EXPLANATIONS AND CLARIFICATIONS AS GIVEN BY THE APPELLANT AND FU RTHER ERRED IN NOT APPRECIATING THE FACTS AND LAW IN THEIR PROPER PERSPECTIVE. 7. THE APPELLANT CRAVES LEAVE TO ADD AMEND ALTER EDIT DELETE MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL. 2. WHEN MATTER WAS TAKEN UP FOR HEARING LD. A.R. SHRI P.B. PARMAR MOVED AN APPLICATION ON BEHALF OF THE ASSESSEE AND REQUESTED THAT HE WANTS TO WITHDRAW THE PRESENT APPEAL. THE REQUEST OF THE LD. A.R. ACC EPTED AND THE APPEAL IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN OPEN COURT ON 26 - 11- 2019 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 26 /11/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT.