9911796707
TMI Blog2009 (8) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... these sections can be invoked. Whether it is a rectification of a mistake, or initiation of proceedings for income escaping assessment, or even a revision proceeding everything must be completed within the prescribed time-limit. To suggest that even a proceeding before the Tribunal is a continuation of assessment proceedings and, therefore, the AO can be allowed to make up for his deficiencies will amount to rendering all these time-limits as nugatory and redundant. - - - - - Dated:- 6-8-2009 - Member(s) : PRAMOD KUMAR., MUKUL SHRAWAT. ORDER-PRAMOD KUMAR, A.M.: By way of this appeal, Revenue has challenged correctness of the order dt. 31st May, 2005 passed by the CIT(A), in the matter of assessment under s. 143(3) of the IT Act, 1961 for asst. yr. 2003-04 on the following grounds: "I. On the facts and in the circumstances of the case, the learned CIT(A)-I, Nasik, erred in granting deduction under s. 80-IB(10) in respect of profit earned on account of sale of shops (commercial project) to the tune of Rs. 11,58,704. 2, It is therefore, prayed that the order of the learned CIT(A) be vacated and that of the AO order be restored." 2. When this case was called up, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation amounted to enhancement of tax liability of the assessee. A lot of emphasis was placed on the 'cause of justice' and fact that decision of the Special Bench has as to be honoured in its letter and in spirit. It was learned Departmental Representative's case that the cause of substantial justice will be frustrated if the matter is not restored to the file of the AO so the fresh adjudication can be made in the light of Special Bench decision in the case of Brahma Associates. We were also urged to respect the Special Bench decision and hold that assessment is framed in accordance with the principles so laid down by the Special Bench decision. 4. On the other hand, Dr. Pathak, contended that in view of Hon'ble Supreme Court judgment in the case of Mcorp Global (P) Ltd. vs. CIT (2009) 222 CTR (SC) 110 : (2009) 19 DTR (SC) 153 : (2009) 309 ITR 434 (SC) the benefit which has been given by the AO cannot be taken away by the Tribunal. It was pointed out that, as observed by the Hon'ble Supreme Court "the Tribunal was not authorized to take back the benefit granted to the assessee by the AO", Dr. Pathak submitted that it was a conscious decision on the part of the AO to grant proport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal when the said issue is not even before the Tribunal. We were thus urged not to venture upon the course suggested by the learned Departmental Representative. 5. Learned Departmental Representative once again reiterated the submissions summarized earlier in this order. He also contended that he was not given an opportunity to revise the grounds. It was also pointed out that while it is an appeal filed by the Revenue, assessee's counsel was allowed to open the argument. Learned Departmental Representative once again submitted, possibly with all emphasis at his command that cause of substantial justice will stand frustrated if we do not remand the matter to the file of the AO so as to ensure that the assessment is framed in accordance with the decision of this very Tribunal in the case of Brahma Associates. 6. We have given very careful consideration to the rival submissions. The short issue which is raised before us in this appeal filed by the AO is the grievance against the CIT(A)'s granting deduction under s. 80-IB(10) in respect of profit on sale of commercial units in the project. As far as this issue is concerned, it is not in dispute that grievance of the AO is to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed by the provisions of ss. 147, 154 and 263, etc. but all these sections have certain time-limits within which these sections can be invoked. Whether it is a rectification of a mistake, or initiation of proceedings for income escaping assessment, or even a revision proceeding everything must be completed within the prescribed time-limit. To suggest that even a proceeding before the Tribunal is a continuation of assessment proceedings and, therefore, the AO can be allowed to make up for his deficiencies will amount to rendering all these time-limits as nugatory and redundant. As held by the Hon'ble Supreme Court in the case of Mcorp Global (P) Ltd. it is indeed not open for the Tribunal to take away the benefit given by the AO. When the AO decided to grant deduction under s. 80-IB(10) of the Act in respect of residential units it was a well-considered and conscious decision on his part to have granted the benefit of deduction. With the benefit of hindsight this benefit of deduction might have been little more generous than what is found to be admissible by the Tribunal, but then the decision of the Tribunal bas not yet reached finality and it is not an end of the route so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is a serious constriction on the exercise of power by the Tribunal. It can decide only the points or grounds raised before it whereas the IT authorities can travel beyond the grounds and consider the entire assessment. The Tribunal has no power for the enhancement of any penalty or assessment nor can it remand a case with the object of such enhancement." 8. As noted by the Hon'ble Gauhati High Court in the above observations the Tribunal's powers do not go beyond the points or grounds raised before it. It is not the scheme of the Act that entire assessment is open before the Tribunal and it must consider the same. Ground which was raised by be Revenue was confined to profits relatable to commercial units and therefore, it is not really open to the Tribunal to go beyond the said ground. 9. We have noted that Departmental Representative has also made a grievance about assessee's counsel being allowed to speak first even though it was an appeal filed by the AO. While we express our disappointment on such frivolous and procedural issues being raised, we may only add that it is a convention to allow, what is termed as, "mentions", before the regular cause list is taken up. This t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
