Income Tax Appellate Tribunal - Jodhpur
Acit, Udaipur vs M/S.Krishan Lal Meel And Party, Udaipur on 3 March, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
JODHPUR BENCH, JODHPUR
BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER
ITA No.82/Jodh/2017
Assessment Year:2010-11
The ACI T Vs. M/s. Krishan Lal Meel and Party
Circle-2 Alwar Group. HO-Udaipur
Udaipur 319, Bhopalpura, Udaipur
PAN No. AAAAK7971K
ITA No.83/Jodh/2017
Assessment Year:2013-14
The ACI T Vs. M/s. Vasu dev and Party
Circle-2 Jalore Group, HO-Udaipur
Udaipur 424, Panchratan Complex
Udaipur
PAN No. AAAAV9292L
&
ITA No.84/Jodh/2017
Assessment Year:2010-11
The ACI T Vs. M/s. Manoj Sisodia and Party
Circle-2 Jodhpur Group, HO-Udaipur
Udaipur 424, Panchratan Complex
Bhopalpura, Udaipur
PAN No. AAB AM2157L
(Appellant) (Respondent)
Appellant B y : None
Respondent By : Sh. S.K. Meena
Date of hearing : 01/03/2017
Date of Pronouncement : 03/03/2017
ORDER
These three appeals have been filed by the Revenue assailing the correctness of the separate orders dated 25.11.2016 of CIT(A)-I, Udaipur pertaining to different assessee's in different assessment years on identical grounds. Accordingly for the sake of convenience these appeals are being decided by a common order as facts and circumstances and arguments qua the issue remains the same. For ready reference the grounds from ITA No.82/Jodhpur/2017 is extracted hereunder:
"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."
2. Though the learned Sr.D.R. herein also placed reliance upon the assessment order however he was unable to show that the orders of the ITAT taken into consideration as on identical issue taken note of in the impugned order at page 10 have been upset by any higher forum. Identical issue was listed for hearing before this Bench on an earlier date also and in the absence of any contrary decision of a higher forum the appeals of the Revenue after giving time have been dismissed. On perusal of the order it would show that cognizance has been taken of by the CIT(A) in quashing of the 148 proceedings by the CIT(A) on the following reasoning.
"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 Alwar No.370/Jodh/2015 Group, HO- & Udaipur, 319 ITA bhupalpur, Udaipur No.401/Jodh/2015
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 Kailash Chand & No.380/Jodh/2015 Party Rajsamand & ITA Group, HO-Udaipur No.399/Jodh/2015 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 Group, & ITA HO-Udaipur 318, No.397/Jodh/2015 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 Group, No.369/Jodh/2015 HO-Udaipur 401, & ITA Ujjawal Apartment No.396/Jodh/2015 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, 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.
Since 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 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 the arguments in ITA Nos.83 and 84/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.
The order is pronounced on 03/03/2017 in the open Court.
Sd/-
(DIVA SINGH) JUDICIAL MEMBER Dated: 03 March, 2017 Prabhatkumar kesarwani Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT