M/s. Burns Philp India Pvt. Ltd., v. ACIT, C.C. - XXVIII, Kolkata,

ITA 740/KOL/2009 | 2002-2003
Pronouncement Date: 23-11-2011 | Result: Allowed

Appeal Details

RSA Number 74021714 RSA 2009
Assessee PAN AAECA9923H
Bench Chennai
Appeal Number ITA 740/KOL/2009
Duration Of Justice 1 year(s) 11 month(s)
Appellant M/s. Burns Philp India Pvt. Ltd.,
Respondent ACIT, C.C. - XXVIII, Kolkata,
Appeal Type Income Tax Appeal
Pronouncement Date 23-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 23-11-2011
Date Of Final Hearing 16-11-2011
Next Hearing Date 16-11-2011
Assessment Year 2002-2003
Appeal Filed On 23-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C CHENN AI BEFORE DR.O.K.NARAYANAN VICE PRESIDENT AND SHRI HARI OM MARATHA JUDICIAL MEMBER .. ITA NO.740/KOL./2009 ASSESSME NT YEAR:2002-03 M/S.BURNS PHILP INDIA PVT. LTD. (NOW KNOWN AS AB MAURI INDIA PVT LTD.) 2/15 GANAPATHY COLONY TEYNAMPET CHENNAI 600 018. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX COMPANY CIRCLE XXVIII KOLKATA-20. PAN AAECA 9923 H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.VIJAYARAHGAVAN & SHRI SP CHIDAMBARAM ADVOCATE DEPARTMENT BY : SHRI A.C.JOSEPH C.I.T.DR DATE OF HEARING : 16.11.11 DATE OF PRONOUNCEMENT : 23.11 .11 O R D E R PER HARI OM MARATHA JUDICIAL MEMBER : THIS APPEAL FOR ASSESSMENT YEAR 2002-03 IS DIREC TED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (A) CENTRAL-I KOLKATA 700 001 DATED 20.08.2007. FOLL OWING PAGE 2 OF 9 ITA. 740/KOL./09 GROUNDS HAVE BEEN RAISED:- 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX(A) IS CONTRARY TO LAW FACTS AND CIRCUMSTANCES OF THE CAS E. 2. THE COMMISSIONER OF INCOME TAX(A) ERRED IN NOT ADJUDICATING ON THE SPECIFIC GROUNDS OF APPEAL RAIS ED QUESTIONING THE JURISDICTION OF THE ASSESSING OFFIC ER TO PASS AN ORDER UNDER SECTION 143(3) R.W.S. 147 DATED 6 TH MARCH 2009. 3. WITHOUT PREJUDICE TO THE ABOVE THE TRIBUNAL MA Y APPRECIATE THAT THE APPELLANT HAS SHIFTED ITS REGIS TERED OFFICE FROM KOLKATA TO CHENNAI AND AFTER INTIMATING THE INCOME-TAX DEPARTMENT KOLKATA THE APPELLANT HAS F ILED ITS THE RETURN OF INCOME FOR ASSESSMENT YEAR 2002- 03 IN CHENNAI. ACCORDINGLY THE ASSESSING OFFICER IN KOL KATA WILL NOT HAVE JURISDICTION TO ACT UPON/ INITIATE AS SESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2002-03. 4. THE LOWER AUTHORITIES OUGHT TO HAVE APPRECIATED THAT THEY SHOULD NOT HAVE PASSED ORDERS WHEN THEY DO NOT HAVE THE JURISDICTION TO DO SO. PAGE 3 OF 9 ITA. 740/KOL./09 5. THE ORDERS OF THE LOWER AUTHORITIES ARE AGAINST THE CANNONS OF NATURAL JUSTICE AND PRINCIPLES OF LEGITI MATE EXPECTATIONS. 6. WITHOUT PREJUDICE TO THE ABOVE THE COMMISSIONE R OF INCOME TAX(A) ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHICH SEEKS TO TAX THE INCOME WH ICH IS ALREADY SUBJECTED TO TAX IN THE RELEVANT JURISDI CTION. 7. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO HAVE APPRECIATED THAT THE RETURNED INCOME CANNOT BE TAXE D BY PASSING TWO ASSESSMENT ORDERS FOR THE SAME ASSESSMENT YEAR. 8. WITHOUT PREJUDICE TO THE ABOVE THE COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING THE DISALLOWANCE OF WRITE OFF OF RS.1 00 000 BEING DEPOSIT AGAINST RENT . 2. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE VE RY OUTSET OF THE HEARING OF THIS APPEAL IT WAS BROUGHT TO OU R NOTICE THAT THE ASSESSEE COMPANY WAS OPERATING AS BURN PHILIP I NDIA PVT LTD. KOLKATA WITH ITS REGISTERED OFFICE IN KOLKATA. ITS REGISTERED OFFICE WAS PERMITTED TO BE CHANGED TO CHENNAI WITH EFFECT FROM19.07.2002. THE COMPANY CHANGED ITS NAME TO A. B.MAURI INDIA PVT LTD. WITH EFFECT FROM 05.11.04. AS PER L D. AR PAGE 4 OF 9 ITA. 740/KOL./09 DCIT/A.O. WAS INFORMED ON 25.10.02 ABOUT THIS CHANG E OF REGISTERED OFFICE OF THE COMPANY AND THAT IT WAS AL SO INFORMED THAT THE ASSESSEE COMPANY HAD FILED ITS RETURN OF I NCOME FOR ASSESSMENT YEAR 2002-03 AT CHENNAI ON 30.10.02 IN THE OFFICE OF ITO CHENNAI. THE ITO CHENNAI SENT INTI MATION U/S.143(1) ON 08.04.03 TO THE ASSESSEE COMPANY. AN APPEAL AGAINST THIS INTIMATION ( AT THAT TIME APPEAL TO L D. C.I.T.(A) LIED AGAINST THE ORDER PASSED U/S.143(1) ) WAS FILED WH ICH WAS DECIDED ON 19.09.03. SUBSEQUENTLY ASSESSMENT ORDE R U/S.143(3) R.W.S.147 WAS PASSED ON 14.09.07 WHICH WAS ALSO SUBJECTED TO APPEAL BEFORE THE COMMISSIONER OF INCO ME TAX(A). LATER COMMISSIONER OF INCOME TAX CHENNAI O N THE BASIS OF RECORDS BEFORE HIM ISSUED A NOTICE U/S.26 3 ON 13.03.06 AND PASSED AN ORDER ON 30.03.06 FOR ASSESS MENT YEAR 2001-02 WHICH SHOWS THAT THE RECORDS OF ASSES SMENT OF THE ASSESSEE HAD ALREADY BEEN TRANSFERRED FROM KOLK ATA TO CHENNAI. THIS ORDER WAS FURTHER SUBJECTED TO APPEA L BEFORE THE TRIBUNAL. TRIBUNAL HAS PASSED ITS JUDGEMENT AGA INST REVISIONAL ORDER PASSED U/S.263 FOR ASSESSMENT YEAR 2001-02 VIDE ITS ORDER DATED 23.11.07. PAGE 5 OF 9 ITA. 740/KOL./09 3. SIMULTANEOUSLY A NOTICE U/S.148 WAS ISSUED TO THE ASSESSEE ON 16.06.04 REQUIRING ASSESSEE TO FILE THE RETURN FOR ASSESSMENT YEAR 2002-03 THAT IS VERY SAME ASSESSM ENT YEAR FOR WHICH ASSESSMENT ORDER HAS ALREADY BEEN P ASSED U/S.143(1) ON 08.04.03. TO THIS NOTICE THE ASSESS EE REPLIED VIDE LETTER DT.15.05.04 AND AGAIN VIDE LETTER DT.12 .08.04 STATING THAT THE REGISTERED OFFICE OF THE ASSESSEE-COMPANY HAS BEEN CHANGED AND RETURNED FOR THE YEAR HAS ALREADY BEEN FILED IN CHENNAI. THE COMPANY PRODUCED A COPY OF INTIMATION ON 26.08.04 ISSUED BY THE CHENNAI OFFICE TO ESTABLISH ITS CASE OF CHANGE OF REGISTERED OFFICE BUT THE ASSESSING OFFI CER KOLKATA STILL FRAMED ASSESSMENT ORDER ON 06.03.06 AGAINST W HICH APPEAL WAS FILED BEFORE THE COMMISSIONER OF INCOME TAX(A) OBJECTING TO THE JURISDICTION OF ITO KOLKATA. THE COMMISSIONER OF INCOME TAX(A) DID NOT DECIDE THE ISSUE OF JURISD ICTION OF THE ASSESSING OFFICER BUT ONLY PASSED HIS ORDER. THE COMMISSIONER OF INCOME TAX(A) REMITTED THE MATTER B ACK TO THE ASSESSING OFFICER DESPITE THE FACT THAT THE COM MISSIONER OF INCOME TAX(A) HAD OBSERVED THAT ISSUE OF ASSESSABIL ITY CAN BE TAKEN UP WITH THE ASSESSING OFFICER BUT THE ASSESS ING OFFICER AGAIN IGNORED THE SUBMISSION OF THE ASSESSEE COMPAN Y IN THIS REGARD AND PASSED AN ORDER GIVING EFFECT TO THE ORD ER OF THE PAGE 6 OF 9 ITA. 740/KOL./09 COMMISSIONER OF INCOME TAX(A) ON 16.03.09 WHICH WA S RECEIVED BY THE ASSESSEE ON 03.04.09. THE ADDRESS IN ASSESSMENT ORDER HAS BEEN WRITTEN THAT OF CHENNAI. THEREAFTER THE ASSESSEE APPROACHED THE TRIBUNAL AG AINST THE ORDER OF COMMISSIONER OF INCOME TAX(A) ON 04.05.09. IN THE BACKGROUND OF THE ABOVE FACTS IT HAS BEEN PRAYED T HAT SINCE THE ASSESSMENT ORDER PASSED BY ITO CHENNAI HAS AP PEALS UPTO TRIBUNAL LEVEL AND THE INTIMATION WAS PASSED P RIOR TO THE NOTICE ISSUED BY KOLKATA ITO; AND SINCE THE COMMI SSIONER OF INCOME TAX CHENNAI HAS REVISED THE ASSESSMENT ORDE R FOR ASSESSMENT YEAR 2001-02 FOR THE IMMEDIATELY PRECED ING ASSESSMENT YEAR THE YEAR IN WHICH THE JURISDICTION LIED WITH ITO KOLKATA. ONE CAN PRESUME THAT ALL THE RECORDS O F THE ASSESSEE MUST HAVE BEEN TRANSFERRED TO CHENNAI JURI SDICTION. 4. IT WAS NOTICED THAT THIS APPEAL IS TIME BARRED B Y 564 DAYS FOR THAT CONDONATION PETITION HAS BEEN FILED. KEEP ING IN VIEW THE REASON MENTIONED IN THE PETITION WHICH ARE SU PPORTED BY AN DULY NOTARISED AFFIDAVIT WE HOLD THAT A REASONA BLE AND SUFFICIENT CAUSE HAD PREVENTED THE ASSESSEE TO FILE THIS APPEAL AS IN TIME. THEREFORE WE CONDONE THIS DELAY IN FI LING THIS APPEAL KEEPING IN LINE WITH THE FACTUM OF HONBLE S UPREME PAGE 7 OF 9 ITA. 740/KOL./09 COURT WHO HAS REITERATED THAT SUBSTANTIAL JUSTICE SHOULD NOT BE DEFEATED ON ACCOUNT OF PEDANTIC REASONS. 5. AT THE TIME OF HEARING LD. DR COULD NEITHER C ONFIRM THE ABOVE FACTS NOR COULD DENY THE SAME WITH CONFIDENCE . THIS MATTER BEING VERY OLD AND A PIQUANT SITUATION HAVIN G BEEN ARISEN THEREIN BUT AT ANY RATE WE ARE OF THE CONSI DERED OPINION THAT IN A GIVEN CASE TWO ASSESSMENT ORDERS CANNOT B E PASSED FOR ONE ASSESSMENT YEAR. IT IS AN UNDENIABLE FACT T HAT THE ASSESSMENT PASSED BY THE CHENNAI ITO HAS RAISED MO RE TAX DEMAND THAN THE KOLKATA ITO. IN THIS SITUATION IT BECOMES NECESSARY THAT ONE OF THE ASSESSMENT ORDERS SHOULD BE TREATED AS NULL AND VOID AND NON-EST IN THE EYES OF LAW. SINCE EVEN AFTER MANY ADJOURNMENTS WE COULD NOT ASCERTAI N THE CORRECT FACTS IN THIS REGARD BUT BY BELIEVING THE CHRONOLOGICAL EVENTS PRODUCED BEFORE US IN THE FORM OF A CHART BY LD. AR AND A COPY OF WHICH HAS BEEN PROVIDED TO LD DR ALSO WE BELIEVE THAT NO AUTHORIZED REPRESENTATIVE/ ADVOCATE HAVING CONSIDERABLE STANDING WOULD MAKE AN INCORRECT STATE MENT. THEREFORE KEEPING IN ALL THE FACTS AND CIRCUMSTANC ES OF THE CASE WE ARE OF THE CONSIDERED OPINION THAT THIS MA TTER HAS TO BE RESTORED TO THE FILE OF THE CHENNAI ITO /ASSES SING OFFICER PAGE 8 OF 9 ITA. 740/KOL./09 OF THE ASSESSEE COMPANY. IN CASE THE FACTS AND FI GURES DETAILED IN THE CHRONOLOGICAL CHART AND ALSO INCOR PORATED BY US IN OUR ORDER IS FOUND TO BE INCORRECT HE CAN HEAR THE ASSESSEE AND TAKE A JUDICIOUS VIEW. HOWEVER IF TWO ASSESSM ENT ORDERS ARE FOUND TO EXIST FOR ONE ASSESSMENT YEAR ONE M ADE BY KOLKATA ITO AND ONE BY CHENNAI ITO THEN IN THAT CA SE THIS ASSESSMENT ORDER PASSED BY KOLKATA ITO SHALL BE TRE ATED AS NULL AND VOID AND WILL HAVE NO EFFECT IN LAW. WITH THE ABOVE OBSERVATION WE ALLOW THIS APPEAL ON THE TECHNICAL ISSUE FOR STATISTICAL PURPOSES. 6. IN RESULT THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES ALONE. ORDER PRONOUNCED ON 23 RD NOVEMBER 2011. SD/- SD/- (DR.O.K.NARAYANAN ) ( HARI OM MARATHA ) VICE PRESIDENT JUDICIAL MEMBER CHENNAI DATED THE 23 RD NOVEMBER 2011. K S SUNDARAM COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE PAGE 9 OF 9 ITA. 740/KOL./09 DATE INITIALS 1. DRAFT DICTATED ON 2. DRAFT PLACED BEFORE AUTHORITY 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S. 6. KEEP FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE 9. DATE OF DISPATCH OF ORDER