9911796707
TMI Blog2020 (2) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2018 passed by the Ld. CIT(A)-18, New Delhi relating to Assessment Year 2011-12 on the following grounds:- "1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not quashing the impugned reassessment order passed by Ld. AO u/s 143(3)/147 and that too without assuming jurisdiction as per law and without complying the mandatory conditions of section 147 to 151 of the Income Tax Act, 1961. 2. That in any case and in any view of the matter, Ld. CIT(A) has erred in law and on facts in not quashing the impugned reassessment order passed by Ld. AO u/s 147/143(3) and that too without assuming jurisdiction as per law and without serving the mandatory notice u/s 148, 143(2) and 142( 1) of the Income Tax Act, 1961. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in not allowing the deduction of interest paid on Housing Loan amounting to ₹ 8,01,501/- while calculating Income under the head House property and that too by recording incorrect facts and findings and without observing the principles of natural justice. 4. That in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the assessee stated that the issue in dispute has already been adjudicated and decided in favour of the assessee by various Benches of the ITAT and requested that respectfully following the orders passed by the ITAT, the addition in dispute may be deleted and appeal filed by the assessee may be allowed. In support of his contention he filed a copy of common dated 20.02.2018 order passed by the ITAT Jaipur Benches, Jaipur in ITA No. 92/JP/2015 for Assessment Year 2008-09 in the case of M/s Rajasthan State Industrial Development & Investment Corp. Ltd., Udyog Bhawan, Tilk Marge, C-Scheme, Jaipur vs. The ACIT, Circle-6, Jaipur and ITA No. 206/JP/2015 for Assessment Year 2008-09, in the case of The DCIT Circle-6, Jaipur vs. M/s Rajasthan State Industrial Development & Investment Corp. Ltd., Udyog Bhawan, Tilak Marge, C-Scheme, Jaipur and Indira Exports Private Limited vs. ACIT in ITA Nos. 391/2007, 338/2007 and 294/2006 dated 31.10.2011 (Indore) which the assessee has attached in the paper book at pages 11 to 16 and also the decision of Delhi Bench in the case of Anil Gupta vs. AO, (2005) 96 TTJ 0798 (Delhi) which the assessee has attached at pages 17 to 25 of the paper b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as under:- S. No. Unit Initial Year Profit of the year 08-09 Loss of the A.Y. 07-08 1. EPIP Sitapura-1st A.Y. 2005-06 ₹ 16770973 ₹ 5020008 2. Borhada A.Y. 2005-06 ₹ 38561187 ₹ 8614556 Total 1,36,34,564 It is apparent from the notice u/s 154 of the Act that the AO proposed to rectify the mistake in respect of the loss of Rs. ₹ 1,36,34,564/- to be adjusted against the profits of the eligible undertaking for deduction u/s 80IA of the Act. In response to the said notice issued u/s 154 the assessee filed its reply dated 15.06.2012 as under:- "We are in receipt of your aforesaid notice in which you have propose to reduce deduction u/s 80IA by ₹ 1,36,34,564/-, in this connection we are to submit that during the year assessee has claimed deduction u/s 80IA in respect of various industrial area and for which audit certificate u/s 80IA has also been submitted during the course of as assessment proceedings completed u/s 143(3). Total eligible profit u/s 80I A of all these industrial area works out to ₹ 98,13,07,585/- against which assessee has claimed deduction u/s 80IA at ₹ 95,1 1,66,037/-. If the loss of tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,36,34,564/-. The assessee has raised a legal objection against the initiation of proceeding u/s 147/148 while the proceeding u/s 154 of the Act were pending and not reached to the finality either by dropping the same or passing any order u/s 154 of the Act, the initiation of proceeding u/s 147/148 is not permissible. The Bench asked the ld. CIT DR to produce the assessment record to show that the status of the proceeding u/s 154 on the date of initiating of proceedings u/s 147/148 of the Act. It was found that the AO has not passed any order either for dropping the proceeding or concluding the proceeding u/s 154 prior to issuing notice u/s 148 of the Act. Thus, it is not disputed that there is no record of closing the proceeding u/s 154 of the Act. There is no quarrel that the doctrine of estoppel is not applicable against the initiation of proceedings u/s 147/148 even when the AO initiated the proceedings u/s 154 of the Act. However, when the issue in the two proceedings initiated u/s 154 as well as u/s 147of the Act is the same than without considering the proceeding u/s 154 of the Act the AO cannot initiate parallel proceeding u/s 147/148 of the Act on the same issue. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and with the doubt in the mind of the Officer as to which direction he has to go, I have no hesitation in holding that the notice lacks the very basis for assumption of jurisdiction under Section 147 of the Act. For the reasons that there cannot be two parallel proceedings on the self same issue as one based on the view that there were materials available on record which warranted exercise of jurisdiction under Section 154 and the other initiated under Section 147 that there was escapement of income from tax on account of the failure of the assessee from disclosing the full and correct particulars, I have no hesitation in quashing the notice on reassessment." The Hon'ble High Court as held that then cannot be two parallel proceedings on the self same issue as are based on the view that there were materials available on record which warranted exercise of jurisdiction u/s 154 and the other initiated u/s 147 that there was escapement of income from tax. The Mumbai Bench of the Tribunal in case of Mahinder Freight Carrier vs. DCIT 129 ITD 278 has held in para 10 as under:- "10. In this case, the Assessing Officer initiated the proceeding under section 154 of the Act and said procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed u/s 143(3) of the Act and further the claim of deduction allowed while passing the order u/s 143(3) would not be excessive even if proposed adjustment of loss of previous year is made against the profit of the current year. The assessee reminded the AO in its reply to the notice u/s 154 that even after the adjustment of loss of ₹ 1.36 Crores allowable deduction would be more than ₹ 95.11 Crores allowed in the original assessment. Thereafter, the AO without bringing the proceedings u/s 154 of the IT Act to a logical conclusion had initiated the proceedings u/s 147 of the Act on the basis of the same fact and material available on the assessment record. Thus, reopening on the basis of the material available on assessment record is nothing but based on change of opinion. The Hon'ble Calculta High Court in case of Berger Paints India Ltd. vs. DCIT (supra) has held in paras 42 to 53 are as under:- "42. However, if the Assessing Officer is of the view that income has escaped assessment by reason of a mistake apparent from records, and takes recourse to section 154, but finds later, that there is no apparent mistake, then he cannot, in the absence of any other ground on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedent for exercise of jurisdiction to reassess existed. The Supreme Court, inter alia, held as follows (page 207 and 208) "The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. In the present case, the company contends that the conditions precedent for the assumption of jurisdiction under section 34 were not satisfied and came to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal or proper relief under article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons." 48. Moreover, in this case, where the writ petition had been entertained and kept pending for about six years and directions issued for filing of affidavits, this court is not inclined to decline relief only on the ground of existence of an alternative remedy of filing an objection before the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the other grounds raised on the merits becomes infructuous. In the result, the appeal of the assessee is allowed and Revenue appeal is dismissed. Order pronounced in the open court on 20/02/2018." 6. Keeping in view the facts of the present case and the order dated 20.02.2018 by the ITAT Jaipur Benches as reproduced above, I am of the view that the Assessing Officer has reopened the case of the assessee when the proceedings under section 154 of the I.T. Act, 1961 were pending on the same issue. The ITAT Jaipur Benches has decided this issue in favour of the assessee and set aside initiation of proceeding u/s 147/148 of the Act and consequential reassessment order, as a result thereof the grounds on merits have become infructuous. 7. Keeping in view the facts and circumstances of the present case, I am of the view that the issue in dispute has already been adjudicated and decided in favour of the assessee by the ITAT Jaipur Benches (supra). Therefore, I have no other alternative except to respectfully following the above said order and cancel the proceedings initiated u/s 147/148 and consequential reassessment order. Since I have cancelled the proceeding initiated u/s 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
