THE ACIT 17(3), MUMBAI v. M/S. K. MOHAN & CO. (EXPORTS), MUMBAI

ITA 1307/MUM/2008 | 1999-2000
Pronouncement Date: 24-02-2010 | Result: Dismissed

Appeal Details

RSA Number 130719914 RSA 2008
Assessee PAN AAAAK0022F
Bench Mumbai
Appeal Number ITA 1307/MUM/2008
Duration Of Justice 2 year(s) 2 day(s)
Appellant THE ACIT 17(3), MUMBAI
Respondent M/S. K. MOHAN & CO. (EXPORTS), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 24-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 24-02-2010
Date Of Final Hearing 16-02-2010
Next Hearing Date 16-02-2010
Assessment Year 1999-2000
Appeal Filed On 22-02-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI. BEFORE SHRI R.K. GUPTA J.M. AND SHRI J. SUDHAKAR REDDY A.M. I.T.A. NO. 13 07/MUM/2008 ASSESSMENT YEAR : 1999-2000. ASSTT. COMMISSIONER OF INCOME-TAX M/ S K. MOHAN & CO. 17(3) MUMBAI. VS. (EXPORTS) 61 ROSE COTTAGE DR. S.S. ROAD PAREL MUMBAI 400012 PAN AAAAK0022F APPELLANT RESPONDENT APPELLANT BY : SHRI MAHUA SARKAR RESPONDENT BY : SHRI VIJAY MEHTA. O R D E R PER J. SUDHAKAR REDDY A.M. THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED A GAINST THE ORDER OF THE CIT(APPEALS)-XXVII MUMBAI DATED 19-11 -2007 FOR THE ASSESSMENT YEAR 1999-2000 ON THE FOLLOWING GROUND : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT RE-ASSESSMENT PROCEEDINGS INITIATED BY THE A.O . BEYOND THE PERIOD OF 4 YEARS FROM THE END OF THE ASSESSMENT YE AR IN QUESTION IS BAD IN LAW AND WITHOUT JURISDICTION AND THEREFORE I NVALID. 2. WE HAVE HEARD MR. MAHUA SARKAR LEARNED DR AND MR. VIJAY MEHTA LEARNED COUNSEL FOR THE ASSESSEE. 3. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIR CUMSTANCES OF THE CASE WE ARE OF THE CONSIDERED OPINION THAT THE REOPENING OF THE CASE 2 BEYOND THE PERIOD OF 4 YEARS IS BAD IN LAW AS THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 21-03-2002 AND T HERE IS NO ALLEGATION WHATSOEVER THAT THE ASSESSEE HAS FAILED TO DISCLOSE THE MATERIAL FACTS NECESSARY FOR MAKING THE ASSESSMENT. THE REASONS RE CORDED FOR REOPENING READ AS FOLLOWS : THE AO HAS RECORDED THE FOLLOWING REASONS FOR REO PENING THE ASSESSMENT FOR THE ASSESSMENT YEAR 1999-2000. (A) IT IS SEEN THAT THE ASSESSEE HAS RECEIVED INT EREST OF RS.13 14 824. HOWEVER WHILE CLAIMING DEDUCTION U/S 80HHC THE ASSESSEE HAS NOT DEDUCTED 90% OF THE INTEREST FROM THE PROFITS OF THE BUSINESS THEREBY RESULTING IN EXCESS DEDUCTION OF RS.10 83 232 BEING ALLOWED TO THE ASSESSEE WITH A TAX EFFECT OF RS.3 79 131. (B) AS PER THE RECENT AMENDMENTS IN THE INCOME TAX ACT IN RESPECT OF 80HHC DEDUCTION I HAVE REASON TO BELIEV E THAT THE ASSESSEE HAS INCORRECTLY CLAIMED DEDUCTION U/S 80HH C ON THE DEPB CREDITS RESULTING IN UNDER ASSESSMENT OF INCOM E. 4. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF HI NDUSTAN LEVER LTD. VS. ACIT 268 ITR 332 HELD AS FOLLOWS : HELD THAT THE NOTICE WAS CLEARLY BEYOND THE PERI OD OF FOUR YEARS. THE REASONS RECORDED BY THE ASSESSING OFFICER NOWHE RE STATED THAT THERE WAS FAILURE ON THE PART OF THE ASSESSEE TO DI SCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT F OR THAT ASSESSMENT YEAR. HENCE THE ASSESSING OFFICER HAD NO JURISDICTI ON TO REOPEN THE ASSESSMENT PROCEEDINGS. THE NOTICE WAS NOT VALID AN D WAS LIABLE TO BE QUASHED. RESPECTFULLY APPLYING THE SAME TO THE FACTS OF THE CASE WE UPHOLD THE ORDER OF THE CIT(APPEALS) WHEREIN AT PAGE 4 IT IS H ELD AS FOLLOWS : FROM THIS FACT IT CANNOT BE SAID THAT THE INCOME HAS ESCAPED ASSESSMENT DUE TO FAILURE OF THE APPELLANT TO DISCL OSE MATERIAL FACTS NECESSARY FOR MAKING ASSESSMENTS. KEEPING IN VIEW T HE JUDICIAL DECISIONS CITED BY THE APPELLANT AND ALSO FOLLOWING THE HONBLE 3 BOMBAY HIGH COURT DECISION IN THE CASE OF BHOR INDU STRIES LTD. VS. ACIT (267 ITR 161) (MUM) RE-ASSESSMENT PROCEEDING I NITIATED BY THE A.O. BEYOND THE PERIOD OF 4 YEARS FROM THE END OF THE ASSESSMENT YEAR IN QUESTION IS BAD IN LAW AND WITHO UT JURISDICTION AND THEREFORE INVALID. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED ON THIS 24 TH DAY OF FEBRUARY 2010. SD/- SD/- (R.K. GUPTA) (J. SUDHAKAR REDDY) JUDICIAL MEMBER. ACCOUNTANT MEMBER. MUMBAI DATED : 24 TH FEBRUARY 2010. WAKODE COPY FORWARDED TO : 1. APPELLANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR A-BENCH. (TRUE COPY) BY ORDER ASSTT. REGISTRAR ITAT MUMBAI BENCHES MUMBAI.