Shri. Murugharajendra Oil Industry Pvt. Ltd., Chitradurga v. ACIT, Davangere

ITA 828/BANG/2008 | 2004-2005
Pronouncement Date: 29-01-2010 | Result: Allowed

Appeal Details

RSA Number 82821114 RSA 2008
Bench Bangalore
Appeal Number ITA 828/BANG/2008
Duration Of Justice 1 year(s) 7 month(s) 19 day(s)
Appellant Shri. Murugharajendra Oil Industry Pvt. Ltd., Chitradurga
Respondent ACIT, Davangere
Appeal Type Income Tax Appeal
Pronouncement Date 29-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 29-01-2010
Date Of Final Hearing 08-07-2013
Next Hearing Date 08-07-2013
Assessment Year 2004-2005
Appeal Filed On 09-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI K.P.T. THANGAL VICE PRESIDENT AND SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER ITA NO. 828/BANG/2008 ASSESSMENT YEAR : 2004-05 SRI MURUGHARAJENDRA OIL INDUSTRY PVT. LTD. P.B.NO.86 DAVANGERE ROAD (N.H. 4) CHITRADURGA 577 502. : APPELLANT VS. THE ASST. COMMISSIONER OF INCOME TAX CIRCLE 1 DAVANGERE. : RESPONDENT APPELLANT BY : SHRI S. RAMASUBRAMANIAN RESPONDENT BY : SMT. JACINTA ZIMIK VASHAI O R D E R PER K.P.T. THANGAL VICE PRESIDENT THIS APPEAL BY THE ASSESSEE IS FOR THE ASSESSMENT YEAR 2004-05. WHEN THE MATTER WAS TAKEN UP FOR HEARING THE LD. R EPRESENTATIVE FOR THE ASSESSEE SOUGHT OUR PERMISSION TO RAISE ADDITIONAL GROUND. THE ADDITIONAL GROUND READS AS UNDER: WITHOUT PREJUDICE TO GROUND NO.2 THAT THE LEARNED ASSESSING OFFICER ERRED IN LAW AND ON FACTS IN INITIATING ASS ESSMENT U/S. 147 OF THE ACT THOUGH THE TIME-LIMIT FOR ISSUANCE OF NO TICE U/S. 143(2) ITA NO.828/BANG/ 2005 PAGE 2 OF 4 FOR ASSESSMENT U/S. 143(3) HAD NOT EXPIRED ON THE D ATE OF ISSUANCE OF NOTICE U/S. 148. 2. THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTE D THIS ADDITIONAL GROUND IS A QUESTION OF JURISDICTION AND OF LAW AND THEREFORE IT COULD BE URGED AT ANY TIME AND HE FURTHER SUBMITTED THERE IS NO REQUIREMENT OF ANY ADDITIONAL FACTS TO BE BROUGHT ON RECORD SO AS TO C ONSIDER THIS GROUND AND IT COULD BE DISPOSED OF ON THE BASIS OF MATERIAL ALREA DY AVAILABLE. FOR THE ABOVE PROPOSITION OF URGING ADDITIONAL GROUND AT AN Y POINT OF TIME THE ASSESSEES REPRESENTATIVE RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION V. CIT [1998] 22 9 ITR 383 AND JUTE CORPORATION OF INDIA LTD. V. CIT 187 ITR 688. 3. WE HAVE HEARD THE LD. DR. CONSIDERING THE ABOVE FACTS SINCE THIS IS AN ISSUE OF JURISDICTION AND NO ADDITIONAL FACT IS TO BE BROUGHT ON RECORD TO DECIDE THE ISSUE WE ADMIT THE ADDITIONAL GROUND. 4. THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTE D IN THIS CASE RETURN OF INCOME ORIGINALLY WAS FILED ON 1.11.04 AND CASE WAS PROCESSED U/S. 143(1) ON 8.3.05. NOTICE U/S. 143(2) WAS ISSUED ON 17.1.05 POSTING THE CASE FOR HEARING ON 28.10.05. THE CASE WAS REOPENE D BY ISSUING NOTICE U/S. 148 ON 8.9.05 I.E. ABOUT TWO MONTHS PRIOR TO T HE COMPLETION OF REGULAR ASSESSMENT U/S. 143(3). ACCORDING TO THE ASSESSEE S REPRESENTATIVE THE TIME FOR COMPLETING REGULAR ASSESSMENT WAS AVAILABL E WITH THE REVENUE AUTHORITIES UPTO 30.10.2005. WHILE THE MATTER WAS PENDING THE IMPUGNED NOTICE OF REOPENING WAS ISSUED WHICH THE ASSESSEE S REPRESENTATIVE SUBMITTED IS WITHOUT JURISDICTION. IN SUPPORT OF T HE ABOVE CONTENTION THE LD. ITA NO.828/BANG/ 2005 PAGE 3 OF 4 ASSESSEES REPRESENTATIVE RELIED ON THE DECISION OF THE MADRAS HIGH COURT IN THE CASE OF K.M. ACHAYAPPAN 304 ITR 264. IN THIS CASE THE HONBLE HIGH COURT HELD THAT THE REOPENING OF THE ASSESSMEN T WHILE A VALID RETURN FILED IS PENDING IS IMPERMISSIBLE. THE ASSESSEES REPRESENTATIVE ALSO RELIED ON THE DECISION OF THE MADRAS HIGH COURT AGAIN IN T HE CASE OF CIT V. QATALYS SOFTWARE TECHNOLOGIES LTD. 308 ITR 249 FOR THE SAME PROPOSITION. IN THIS CASE THE HONBLE HIGH COURT HELD IF THE PE RIOD OF NOTICE U/S. 143(2) HAS NOT EXPIRED REASSESSMENT DURING THIS PERIOD IS WITHOUT JURISDICTION. NO REASSESSMENT PROCEEDINGS COULD BE INITIATED SO LONG AS ASSESSMENT PROCEEDING IS PENDING ON THE BASIS OF RETURN FILED IS NOT TERMINATED. THE FACTS IN THE INSTANT CASE ARE IDENTICAL TO THE DECI SIONS OF THE MADRAS HIGH COURT (SUPRA) . IT IS AN UNDISPUTED FACT THAT THE TIME FRAME FOR COMPLETING THE REGULAR ASSESSMENT HAD NOT EXPIRED. THE NOTICE ISSUED BY THE AO U/S. 143(2) WAS STILL PENDING AND THE DATE FOR HEARING W AS FIXED FOR 28.10.05 WHEREAS THE NOTICE U/S. 148 WAS ISSUED ON 8.9.05 AN D STILL THE DATE FOR REGULAR ASSESSMENT PROCEEDING WAS NOT OVER. IN VIE W OF THE ABOVE FACTS WE ARE OF THE VIEW THAT THE ASSESSMENT COMPLETED U/ S. 143(3) R.W.S. 147 IS INVALID AND WE SET ASIDE THE REOPENED ASSESSMENT OR DER. 5. SINCE WE HAVE DECIDED THE ISSUE IN ASSESSEES FA VOUR ON THE POINT OF JURISDICTION OF REOPENING IT IS NOT NECESSARY F OR US TO DECIDE THE ISSUE ON MERITS. 6. IN THE RESULT THE APPEAL BY THE ASSESSEE IS ALL OWED. ITA NO.828/BANG/ 2005 PAGE 4 OF 4 PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JANUARY 2010. SD/- SD/- (A. MOHAN ALANKAMONY ) ( K.P.T. THANGAL ) ACCOUNTANT MEMBER VI CE PRESIDENT BANGALORE DATED THE 29 TH JANUARY 2010. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT BANGALORE.