9911796707
TMI Blog2022 (7) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome for the AY.2006-07, declaring loss of Rs.33,19,28,249/-, Short Term Capital Gains of Rs.3,48,886/- and Long Term Capital Gains of Rs.20,71,49,940/-. Finally, the assessee admitted net business loss of Rs.12,44,29,420/. The return was processed u/s.143(1) of the Income Tax Act, 1961 [Act]. Subsequently, the Assessing Officer re-opened the assessment u/s.147 of the Act on the ground that income chargeable to tax in the form of Long Term Capital Gains has escaped assessment. Accordingly, notice u/s. 148 of the Act was issued. In response to the same, the assessee submitted that the return already filed may be treated as return filed in response to notice u/s.148 of the Act. Subsequently, the Assessing officer issued statutory notices u/s.143(2) of the Act, to which the assessee filed requisite details from time to time. Thereafter, the Assessing Officer completed the assessment determining the total income of the assessee at Rs.74,58,05,465/-, wherein he determined the Long Term Capital Gains at Rs.107,69,25,428/-. 3. Assessee filed appeal before the Ld.CIT(A), who deleted the addition made by the AO. Aggrieved by the order of the Ld.CIT(A) the Revenue is in appeal before the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inguished and no creditors of the erstwhile corporate debtor can claim anything other than the liabilities referred to in the plan. Referring to the order of the Tribunal in assessee's own case in ITA Nos.562 & 563/Hyd/2018, dt.25-04-2022 for the AYs.2008-09 & 2013- 14, copy of which is placed at Pg.43 to 47 of the paper book, he submitted that the Tribunal has decided identical issue and has held that Revenue is bound by the resolution plan accepted by the NCLT and not entitled to anything more than what is provided therein. He accordingly submitted that facts being similar, the order of the Tribunal should be followed and similar direction should be given. 5. Ld.DR, on the other hand, supported the order of the Assessing Officer. 6. We have heard the rival contentions made by both the sides, perused the orders of the AO and Ld.CIT(A) and the paper book filed on behalf of the assessee. We find identical issue had come up before the Co-ordinate Bench of the Tribunal in assessee's own case for AYs.2008-09 & 2013-14. We find the Tribunal vide ITA Nos.562 & 563/Hyd/2018 order dt.25-04-2022 while deciding the issue has observed as under: 2. At the outset, when the matter is called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority grants its approval under Section 31 could be continued. 4. We have gone through the record in the light of the submissions made on either side. It could be seen from the Form-B filed by the Revenue before the Insolvency Resolution Professional on 03/07/2020 (a copy of which forms part of record), Revenue preferred a claim to the tune of Rs.5,92,88,707/- before the Insolvency Resolution Professional basing on the demand notice/competition sheet and outstanding demand taken as on 03/07/2020, such a claim was considered by the committee of creditors and ultimately resulted in allocation of a sum of Rs.0.22 Crores to the Government vide Sr.No.3(b)(i) of paragraph No.3(C) of the order dt.25/06/2021 passed by the NCLT. Apart from this, the NCLT categorically observed vide paragraph Nos. 18 and 20 that under the Insolvency and Bankruptcy Code, 2016 that all crystalized liabilities and unclaimed liabilities of the Corporate Debtor as on the date of this order shall stand extinguished on the approval of the Resolution Plan and no creditors of the erstwhile Corporate Debtor can claim anything other than the liabilities referred to in para 3(C) to para 5. 5. Further, the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue cannot have any grievance in disposing of these appeals in tune with the orders of the NCLT. This appeal is disposed-of accordingly. 7. In the result, appeal of Revenue in ITA No.1039/Hyd/2018 (AY.2006-07) is partly allowed. ITA No.1963/Hyd/2018 (AY.2009-10): C.O.No.41/Hyd/2018 (AY.2009-10): 8. After hearing both the sides, we find the grounds raised by Revenue are as under: "1. The order of the Ld CIT(Appeals) is bad both on facts and in law. 2. Whether, on the facts and in circumstances of the case the Ld.CIT(A) is correct in granting legal relief by holding that the assessment is invalid as it is done following the directions of Tribunal as per Section 150(1) as held by the Hon'ble Supreme Court in the case of Rajindernath Vs CIT 120 ITR 14. It was held by the Supreme Court that: "A finding given in an appeal, revision or reference arising out of an assessment must be a finding necessary for the disposal of the particular case, that is to say, in respect of the particular assessee and in relation to the particular assessment year. To be a necessary finding it must be directly involved in the disposal of the case" The finding of the Long Term Capital Gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n treating the issue of notice u/s 148 as bad in law. 6. Any other additional ground that may be urged at the time of appeal hearing". 8.1. Grounds raised by assessee in C.O.No.41/Hyd/2018 are as under: "1. The order of the CIT(A) is factually and legally valid not only in law but also in the facts and circumstances of the case. 2. The order of the CIT(A) is legally valid in holding that mere observation or passing remark of Hon'ble ITAT cannot be treated as direction for the purposes of section 149 r.w.s 150(1) & 150(2) of the Act as held by Apex court in Rajinder Nath vs. CIT 120 ITR 14 (SC) which was followed by ITAT in [2016] 179 TTJ (Chennai) (TM) 393 Emgeeyar Pictures P Ltd vs DCIT and by jurisdictional tribunal in ITA No. 554/Hyd/2017 for AY 2005-06 dated 13.09.2017 in the case R Venkataramaiah v ACIT. 3. The Hon'ble ITAT no where any express finding or direction or even observation that the capital gains be assessed in AY 2009-10 and merely stated that no willingness to perform until AY 2009-10 which cannot be by any stretch of imagination be construed as finding or direction to assess in AY 2009-10 and hence the order of Ld. CIT(A) is legally justified. ..... 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