Income Tax Appellate Tribunal - Jodhpur
Acit, Udaipur vs M/S. Om Prakash Mahesh Kumar And Party, ... on 3 March, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
JODHPUR BENCH JODHPUR
BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER
ITA No.75 /JODH/2017
Assessment Years: 2008-09
ACIT, Circle-2, Udaipur. Vs M/s. Om Prakash
Mahesh Kumar and
Party, Sirohi Jalore
Group, HO-Udaipur 401
Plot No.4, Ujjawal
Apartment, Bhatt Ji Ki
Bari, Udaipur.
PAN: AAAO1179P
(Appellant) (Respondent)
ITA No.77/JODH/2017
Assessment Years: 2008-09
ACIT, Circle-2, Udaipur. Vs M/s. Jitendra Sharma
and Party Jaisalmer
Group, HO-Udaipur,
Vardhman Complex
Bhopalpura, Udaipur.
PAN: AAAAJ 4862A
(Appellant) (Respondent)
ITA No.73/JODH/2017
Assessment Years: 2008-09
ACIT, Circle-2, Udaipur. Vs M/s. Om Prakash
Saurabh Tak and party,
Sirohi Group, HO-
Udaipur 103 Ujjawal
Apartment Plot No.4, ,
Bhatt Ji Ki Bari,
Udaipur.
PAN: AAAO1538J
(Appellant) (Respondent)
ITA Nos.73, 75, 77 & 78-Jodh-2017 2
ITA No.73/JODH/2017
Assessment Years: 2008-09
ACIT, Circle-2, Udaipur. Vs M/s. Ramesh Chand
Rajesh Kumar and Party
Rajsamand Group,
Udaipur
PAN: AABAR1274R
(Appellant) (Respondent)
Appellant by : Shri S.K. Meena, JCIT-DR
Respondent by : None
सन
ु वाई क तार ख/ Dateof Hearing : 02/03/2017
घोषणा क तार ख /Date of Pronouncement: 03/03/2017
ORDER
These four appeals of different assessee's are filed by the Revenue on identical issues. Though the assessment years are different however they have been identically decided by separate orders of the CIT(A)-I, Udaipur dated 25.11.2016. Accordingly for the sake of convenience they are bieng decided by a common order. In view of the fact that the arguments and facts qua the ground raised are identical in each of the appeals for ready reference the facts from ITA No.77/Jodh/2017 are being referred to wherein the Revenue has raised the following grounds assailing the correctness of the order dated 25.11.2016 of CIT(A)-I, Udaipur pertaining to 2008-09 Assessment Year.
"On the facts and in the present circumstances of the case and in law the learned CIT(A) has erred in:-
Whether on facts and the circumstance of the case and in law, the ld. CIT(A) was justified in quashing the reopening of proceedings despite the facts that the Assessing Officer has reason to believe that the AOP has incorrectly claimed the credit of TCS/TDS certificates issued in the name of individual members of the AOP."ITA Nos.73, 75, 77 & 78-Jodh-2017 3
2. No one was present on behalf of the assessee-respondent. The record shows that the appeal was listed for hearing on 1st March, 2017 on which date also no one was present on behalf of the assessee-respondent. In view of the fact that the assessment has been quashed by the CIT(A) relying upon plethora of decisions of the co-ordinate Bench or of ITAT Jodhpur time was given to the learned Sr.D.R. to verify whether any of the decisions quoted at page 10 of the impugned order had been upset by a higher forum. On the next date the learned Sr.D.R. stated that he is not in a position to address the query. Accordingly considering the peculiar facts and circumstances of the case I find no good reason to deviate from the view taken from the Co- ordinate Bench as has been taken noted of by the CIT(A) at page 10 of his order. The relevant extract of the order from pages 9 to 12 is reproduced hereunder for ready reference.
"11. That, after reopening proceedings, the assessed income of the appellant AOP 'as it is' as the income assessed u/s.143(3) of the IT Act, 1961 in the original assessment proceedings. Therefore, the assessment order passed u/s. 147 of the IT Act, 1961 is erroneous and bad in law in view of that there is no change in the assessed and reassessed income of the relevant Assessment Year. In this connection, we relied upon the below mentioned Jurisdictional ITAT, Jodhpur Bench decisions in the similar AOP cases on the identical issues, wherein the Hon'ble ITAT, Jodhpur Bench quashed the reassessment proceedings. The details of cases, wherein the findings and decisions given by the Hon'ble ITAT, Jodhpur Bench, Jodhpur are as under:
Sr. No. Name of AOP PAN A.Y. Appeal No. Date of order
1. M/s. Krishan Lal AAAAK7971K 2009-10 ITA 04.09.2015 Meel & Party No.370/Jodh/2015 Alwar Group, HO- & Udaipur, 319 ITA bhupalpur, No.401/Jodh/2015 Udaipur
2. M/s. Hanuman AAAAH 2811F 2009-10 ITA 04.09.2015 Singh Hitendra Tak No.379/Jodh/2015 Ritesh Suwalak & & ITA Party Udaipur No.400/Jodh/2015 Group, HO-
Udaipur 20, Saheli Nagar, Udaipur
3. M/s. Prabhu Lal AAAAP7637F 2009-10 ITA 04.09.2015 ITA Nos.73, 75, 77 & 78-Jodh-2017 4 Kailash Chand & No.380/Jodh/2015 Party Rajsamand & ITA Group, HO- No.399/Jodh/2015 Udaipur 302, Vardhman Complex, Bhupalpura, Udaipur.
4. M/s. Om Prakash AAAAO1179P 2009-10 ITA 04.09.2015 Mahesh Kumar & No.388/Jodh/2015 Party Sirohi-Jalore & ITA Groyup, HO- No.398/Jodh/2015 Udaipur, 401, Ujjawal Apartment, Plot No.-4, Bhatt Ji Ki Bari, Udaipur.
5. M/s. Lekhraj AAAAL2221M 2009-10 ITA 17.03.2016 Mewara & Party No.363/Jodh/2015 Jodhpur Group, & ITA HO-Udaipur 103, No.394/Jodh/2015 Ujjawal Apartment, Plot No.-4 Bhatt Ji Ki Bari, Udaipur.
6. M/s. Ashok Kumar AAAAA9393H 2009-10 ITA 17.03.2016 Devendra Meel & No.372/Jodh/2015 Party Jaipur & ITA Group, HO- No.397/Jodh/2015 Udaipur 318, Bhupalpura, Udaipur
7. M/s. Om Prakash AAAAO1116E 2009-10 ITA 17.03.2016 Mahesh Kumar & No.390/Jodh/2015 Party, Pali Group, & ITA HO-Udaipur, 101, No.395/Jodh/2015 Vardhman Complex, Bhupalpur, Udaipur
8. M/s. Dilip Kumar AAAAD4764H 2009-10 ITA 17.03.2016 & Party Ajmer No.369/Jodh/2015 Group, HO- & ITA Udaipur 401, No.396/Jodh/2015 Ujjawal Apartment Plot No.4 Bhatt Ji Ki Bari, Udaipur.
Under the fact and circumstances of the appellant case and in view of the legal position in various judicial pronouncements, where all material facts were available before the Assessing Officer during original assessment and the Assessing Officer had examined the same, reassessment proceedings cannot be taken up by changing the opinion based on audit note". Further, from the plain reading of reason recorded for reopening of assessee's case, its appear that the department treated the TCS/TDS credit amount as income escapement from assessment in terms of section 147 of the IT Act, 1961. However, section 147 pertains to the escapement of income only not the credit of TDS/TCS. Therefore, ITA Nos.73, 75, 77 & 78-Jodh-2017 5 the action taken u/s.147 of the IT Act, 1961 for reopening of assessment proceedings interest eh assessee's case has no warrant in law in the absence of any material evidence to cover any transaction in the four corners of the income escaping assessment and the reason recorded for reopening the appellant case itself does not represent the objective or bona fide one and the said reason to believe cannot be reason to suspect. It is a settled law that reasons to believe can never be the outcome of a change of opinion. It is essential that before any action is taken by the officer, the officer should substantiate his satisfaction. When entire facts relating to the income were made known to the officer and no objective reason has been given for issuing a notice, the assessment so completed is against the principal of natural justice and bad in law and liable to be quashed."
2.1 Considering the same, the CIT(A) came to the conclusion as under:
3.3. The submissions of the assessee and the relevant findings of the AO have been considered.
On perusal of the order of the ITAT, Jodhpur dt. 04.09.2015 in cases of similar AOP's (table on page 10 refers) relied upon by the assessee, it is seen that the precise question whether assessment could be reopened on grounds of excess allowance of TCS credit was considered by the Hon. Tribunal and it was held as under-
"Now coming to the appeals of the assessee wherein reassessment has been challenged on the ground that there was no escapement of income. From a plain reading of the section 147 of the IT Act, 1961, It is clear that provisions of section 147 are applicable wherein any income chargeable to tax has escaped assessment not the excess credit of tax or TCS I TDS. The assessee's case was reopened for the reason that the income of the appellant to the extent of Rs. 26,68,331/- on account of excess credit of TCS/TDS allowed to the assessee AOP has escaped the assessment in terms of section 147 of the IT Act, 1961, which was not come within the purview of section 147 of the IT Act, 1961, as the excess credit of TCS/TDS is not the part of income of the assessee. Hence, the essential precondition of section 147 of the IT Act, 1961 has not been fulfilled on the assessee's case.
It is clear from the facts on record that there is no variation in the income even after passing of order u/s 143/147 of the Act. Since there is no escapement of income which has been brought within the Tax net after reopening, there is no justification for reopening of assessment."
In the instant case also the only ground for reopening of assessment is allowance of excess credit of TCS and assessment u/s 147 has been completed at the same figure at which earlier assessment u/s 143(3) was completed. In these facts the abovementioned decision of the Hon. Tribunal is squarely applicable. Respectfully following the above mentioned decision of the Hon. Tribunal it is held that in the instant case the reassessment proceedings were not validly initiated and therefore the impugned order u/s 148 is hereby quashed. The ground of appeal is thus allowed.
ITA Nos.73, 75, 77 & 78-Jodh-2017 6Since it has been held above that the reassessment proceedings were not validly initiated and therefore the impugned order u/s 147 itself has been quashed it is not found necessary to adjudicate the other grounds raised in appeal.
3. By way of abundant caution liberty is given to the Revenue that in the eventuality it is brought to the notice of the ITAT that the aforesaid view taken by the ITAT has been upset by a higher forum, the Revenue would be at liberty to pray for a recall of this order. In view of the fact that the assessee-respondent in each of these cases despite notice has remained unrepresented it is made clear that no vested right shall operate in favour of the assessee qua the request for recall of the Revenue if so made in accordance with law on the above mentioned ground by the Revenue.
4. Since the facts and circumstances and the arguments in ITA Nos.73, 75 and 78/Jodh/2017 remain the same and qua the identical reasoning of the CIT(A) accordingly on account of identical reasoning with identical observations the departmental appeals are dismissed as per the pronouncement made in the open court at the time of hearing itself.
5. In the result, the appeals of the Revenue are dismissed.
Order pronounced in the open Court on 03/03/2017 Sd/-
(SMT. DIVA SINGH) JUDICIAL MEMBER Prabhat Kumar Kesarwani, Sr.P.S. Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT ASSISTANT REGISTRAR