Appeal details
Counselvise Citation
[2011] 100 COUNSELVISE.COM (IT) 2796 (ITAT-CHENNAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 9 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-01-2011
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
D
Next Hearing Date
28-01-2011
Assessment Year
2004-2005
Appeal Filed On
19-11-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH D CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AN D SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A. NO. 1968 & 1970/MDS/2010 ASSESSMENT YEARS : 2001-02 & 2004-05 THE DEPUTY COMMISSIONER OF INCOME-TAX, BUSINESS CIRCLE-III, CHENNAI. V. SHRI J. CHANDRASEKAR (HUF) NO.4/738, PILLAIYAR KOIL STREET, METTUKUPPAM, CHENNAI-600 096. (PAN : AACH2897R) I.T.A. NO. 1969/MDS/2010 ASSESSMENT YEAR : 2004-05 THE DY. COMMISSIONER OF INCOME-TAX, V. (LATE ) J. CHANDRASEKAR, BUSINESS CIRCLE-III, CHENNAI. REP. BY SMT. MALLIGESWARI & OTHERS, NO.4/738, PILLAIYAR KOIL STREET, METTUKUPPAM, CHENNAI-600 096. (PAN : AESPC7723E) (APPELLANT) (RESPONDENTS) A N D IN THE INCOME TAX APPELLATE TRIBUNAL BENCH B CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AN D SHRI GEORGE MATHAN, JUDICIAL MEMBER M.A. NOS. 50, 129 & 130/MDS/2010 (IN ITA NOS. 168, 169 & 170/MDS/2008) ASSESSMENT YEARS : 2004-05, 2001-02 & 2004-05 LATE J. CHANDRASEKAR (HUF) V. THE DY . COMMISSIONER OF & (LATE) J. CHANDRASEKAR (INDL.) OF IN COME-TAX, REP. BY SMT. MALLIGESWARI BUSINESSCI RCLE-III, & OTHERS, CHENNAI-96. CHENNAI. (PAN : AACH2897R) & (PAN: AESPC7723E) (APPLICANTS) (RESPONDENT) I.T.A. NOS. 1968, 1969 & 1970/MDS/2010AND MA. NOS. 50, 129 & 130/MDS/ 2010 2 DEPARTMENT BY : SHRI B. SRINIVAS ASSESSEE BY : DR. (MRS.) ANITA SUMANTH O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : I.T.A. NOS. 1968, 1969 & 1970/MDS/2010 ARE APPEALS FILED BY THE REVENUE AGAI NST THE ORDER OF THE LEARNED CIT(APPEALS)-VIII, CHENNAI IN ITA NOS. 12, 13 & 14/10-11 DATED 19-08- 2010 FOR THE ASSESSMENT YEARS 2001 AND 2004-05 IN T HE CASE OF THE ASSESSEE- HUF AND ASSESSMENT YEAR 2004-05 IN THE CASE OF INDI VIDUAL. THE MISCELLANEOUS APPLICATIONS IN M.A. NOS. 50 AND 129/MDS/2010 ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF THIS TRIBUNAL IN ITA NOS. 168 AND 169/ MDS/2008 IN THE CASE OF HUF OF THE ASSESSEE AND M.A. NO. 130/MDS/2010 IS FILED AGAINST THE ORDER OF THIS TRIBUNAL IN ITA NO. 170/MDS/2008 IN THE CASE OF TH E INDIVIDUAL DATED 23-01- 2009. AS THE ISSUES IN ALL THE APPEALS AND THE MIS CELLANEOUS APPLICATIONS ARE COMMON, THEY ARE BEING DISPOSED OF BY THIS COMMON O RDER. 2. SHRI B. SRINIVAS, LEARNED SR. DR REPRESENTED ON BEHALF OF THE REVENUE AND DR. (MRS.) ANITA SUMANTH, ADVOCATE REPRESENTED ON B EHALF OF THE ASSESSEE. 3. AT THE TIME OF HEARING OF THE MISCELLANEOUS APPL ICATIONS ON THE EARLIER OCCASIONS THE LEARNED AUTHORISED REPRESENTATIVE HAD SUBMITTED THAT IN THE ORDER OF THIS TRIBUNAL IN ITA NOS. 168 TO 170/MDS/2009 DA TED 23-01-2009 THE TRIBUNAL HAD UPHELD THE ACTION OF THE LEARNED CIT(A) IN QUAS HING THE ASSESSMENT BUT HAD RESTORED THE ISSUE OF QUANTIFICATION OF THE CAPITAL GAINS BY INDEXATION OF THE FAIR MARKET VALUE AS ON 1.4.1981 TO THE FILE OF THE ASSE SSING OFFICER. THE ASSESSING I.T.A. NOS. 1968, 1969 & 1970/MDS/2010AND MA. NOS. 50, 129 & 130/MDS/ 2010 3 OFFICER HAD RE-DONE THE ASSESSMENT IN REGARD TO THE QUANTIFICATION OF THE SET ASIDE PORTION WITHOUT APPRECIATING THAT THE ASSESSM ENT ITSELF HAD BEEN QUASHED ON ACCOUNT OF THE NON-COMPLIANCE OF THE CONDITIONS LAID DOWN IN SECTION 158BC OF THE INCOME TAX ACT, 1961. THE LEARNED AUTHORISE D REPRESENTATIVE HAD REQUESTED THE TRIBUNAL TO CLARIFY AS TO THE STATUS OF THE ASSESSMENT ORDER, I.E. WHETHER THE ASSESSMENT STOOD QUASHED OR WHETHER THE ASSESSING OFFICER HAD THE LIBERTY TO RE-FRAME THE ASSESSMENT ORDER ON THE SET ASIDE ISSUE. AS THE TRIBUNAL HAD IN ITS ORDER IN ITA NOS. 168 TO 170/MDS/2008, R EFERRED TO SUPRA, SPECIFICALLY QUASHED THE ASSESSMENT ORDER, THE TRIBUNAL HAD DIRE CTED THE LEARNED DR TO VERIFY AS TO WHY THE RE-ASSESSMENT HAD BEEN DONE AN D WHAT IS THE STAND OF THE REVENUE. THE LEARNED DR HAD CLARIFIED THAT AS THE APPEAL AGAINST THE RE- ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WA S BEFORE THE LEARNED CIT(A) HE WAS SURE THAT JUSTICE WOULD BE DONE. IT WAS THE SUBMISSION THAT A CLARIFICATION TO THE ORDER OF THIS TRIBUNAL COULD N OT BE SOUGHT IN A MISCELLANEOUS APPLICATION AND SUCH CLARIFICATION COULD NOT BE GRA NTED U/S 254(2) OF THE ACT AS THERE WAS MISTAKE APPARENT FROM THE RECORD INSOFAR AS THE ORDER OF THE TRIBUNAL WAS CONCERNED. 4. IN REGARD TO THE APPEALS FILED BY THE REVENUE IN ITA NOS. 1968 TO 1970/MDS/2010 IT WAS SUBMITTED BY THE LEARNED DR TH AT HE WISHED ONLY TO SUPPORT THE ORDER OF THE ASSESSING OFFICER. I.T.A. NOS. 1968, 1969 & 1970/MDS/2010AND MA. NOS. 50, 129 & 130/MDS/ 2010 4 5. THE LEARNED AUTHORISED REPRESENTATIVE IN REPLY S UBMITTED THAT THE LEARNED CIT(A) HAD QUASHED THE RE-ASSESSMENT AFTER ACCEPTIN G THE CONTENTION OF THE ASSESSEE AND THE TRIBUNAL HAD QUASHED THE ORIGINAL ASSESSMENT PROCEEDINGS. SHE VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED C IT(A). 6. AFTER PERUSING THE ORDERS OF THE TRIBUNAL IN ITA NOS. 168 TO 170/MDS/2008, REFERRED TO SUPRA, AS ALSO THE ORDER OF THE LEARNED CIT(A) IN APPEAL NOS. 12, 13 & 14/10-11 DATED 19-8-2010, IT I S NOTICED THAT THE LEARNED CIT(A) EXTRACTED THE ORDER OF THE TRIBUNAL WHERE TH E TRIBUNAL HAS UPHELD THE ACTION OF THE LEARNED CIT(A) IN CANCELING THE PROCE EDINGS. ON A QUERY FROM THE BENCH TO THE LEARNED DR AS TO WHY COST SHOULD NOT B E LEVIED ON THE CONCERNED OFFICERS WHO HAVE MISDIRECTED THEMSELVES IN THE REA DING OF THE ORDER OF THIS TRIBUNAL IN ITA NOS. 168 TO 170/MDS/2008 AS ALSO IN REGARD TO THE FILING OF THESE APPEALS BY THE REVENUE BEFORE US IT WAS VEHEMENTLY PRAYED BY THE LEARNED DR THAT ADVERSE INFERENCE SHOULD NOT BE DRAWN AND THAT THE REVENUE OFFICERS WERE ONLY DOING THEIR JOB AND HAD NO MALA FIDE INTENTION IN DOING THE RE-ASSESSMENT ORDER OR IN FILING THE APPEALS BEFORE THE TRIBUNAL. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE H AVE ALSO PERUSED THE ORDERS OF THIS TRIBUNAL IN ITA NOS. 168 TO 170/MDS/ 2008, REFERRED TO SUPRA, AS ALSO THE ORDERS OF THE LOWER AUTHORITIES. A PERUSA L OF THE ORDERS OF THIS TRIBUNAL IN ITA NOS. 168 TO 170/MDS/ 2008 CLEARLY SHOWS THAT THIS TRIBUNAL HAS QUASHED THE ORIGINAL ASSESSMENT PROCEEDINGS. ONCE THIS IS SO JUST BECAUSE THE OTHER I.T.A. NOS. 1968, 1969 & 1970/MDS/2010AND MA. NOS. 50, 129 & 130/MDS/ 2010 5 GROUNDS AS RAISED IN THE ORIGINAL REVENUES APPEAL ON MERITS HAVE BEEN ADJUDICATED, IT DOES NOT IN ANY WAY MEAN THAT A RE- ASSESSMENT IS TO BE DONE. THIS HAS ALSO BEEN RIGHTLY APPRECIATED BY THE LEARN ED CIT(A) WHILE PASSING HIS ORDERS IN ITA NOS. 12, 13 & 14/10-11 DATED 19-08-20 10 WHICH IS THE SUBJECT MATTER OF THE APPEAL BEFORE US IN ITA NOS. 1968 TO 1970/MDS/2010. CONSIDERING THE PLEADINGS OF THE LEARNED DR WHO HAS VEHEMENTLY PRAYED FOR THE NON-LEVY OF COST AND ACCEPTING HIS PRAYERS WE TAKE A LENIENT VIEW AND DO NOT LEVY THE COST IN THIS CASE. HOWEVER, WE WOULD LIKE TO M ENTION HERE THAT IT WOULD BE WORTHWHILE IF ADEQUATE CARE IS TAKEN AT THE ADMINIS TRATIVE LEVELS SO THAT SUCH INJUSTICE DOES NOT RECUR. THE ENERGY SPENT FOR SUC H IRREGULARITIES CAN OBVIOUSLY BE PUT TO BETTER USE. 8. AS IT IS NOTICED THAT THE LEARNED CIT(A) HAS ONL Y FOLLOWED THE PRINCIPLES OF JUDICIAL DISCIPLINE AND HAS CORRECTED THE INJUSTICE DONE, WE ARE OF THE VIEW THAT THE ORDER OF THE LEARNED CIT(A) DOES NOT CALL FOR A NY INTERFERENCE AND THE SAME IS UPHELD. IN THE CIRCUMSTANCES, THE APPEALS FILED BY THE REVENUE IN ITA NOS. 1968, 1969 & 1970/MDS/2010 STAND DISMISSED. 9. AS THE ORDER OF THE LEARNED CIT(A) QUASHING THE ASSESSMENT HAVE BEEN UPHELD, THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE STAND DISMISSED. WE MAY ALSO MENTION HERE THAT IT IS NOTICED FROM TH E MISCELLANEOUS APPLICATIONS FILED THAT THE LEARNED AUTHORISED REPRESENTATIVE HA S NOT BEEN ABLE TO POINT OUT A MISTAKE APPARENT FROM THE ORDER OF THIS TRIBUNAL IN ITA NOS. 168 TO I.T.A. NOS. 1968, 1969 & 1970/MDS/2010AND MA. NOS. 50, 129 & 130/MDS/ 2010 6 170/MDS/2008 DATED 23-01-2009 AND THE MISCELLANEOUS APPLICATIONS ARE ONLY IN THE FORM OF SEEKING CLARIFICATIONS. THE PROVISIONS OF SECTION 254(2) ARE FOR CORRECTING THE MISTAKES APPARENT FROM RECORD OF THE ORDER OF THE TRIBUNAL AND NOT FOR GRANTING CLARIFICATIONS. IN THESE CIRCUMST ANCES, ON THIS GROUND ALSO THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ST AND DISMISSED. 10. THE ORDER WAS PRONOUNCED IN THE COURT ON 28.01. 2011. SD/- SD/- (ABRAHAM P. GEORGE) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 28 TH JANUARY, 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE
