Income Tax Appellate Tribunal - Hyderabad
Sree Rayalseema Green Energy Ltd., ... vs Assessee on 5 December, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH 'B', HYDERABAD
BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER and
SHRI SAKTIJIT DEY, JUDICIAL MEMBER
IT(SS)A No. 13/Hyd/2010
Block period: A.Ys. 1996097 to 2001-02 &
period from 1.4.2001 to 7.3.2002
M/s. Sree Rayalaseema vs. The Commissioner of
Green Energy Ltd., Income-tax (Central)
Kurnool Hyderabad
PAN: AAECS7075A
Appellant Respondent
Appellant by: Sri A.V. Raghuram
Respondent by: Smt. G.V. Hemalatha Devi
Date of hearing: 05.12.2012
Date of pronouncement: 31.01.2031
ORDER
PER CHANDRA POOJARI, AM:
This appeal by the assessee is directed against the order of the CIT (Central), Hyderabad dated 30.3.2009 for the block period A.Ys. 1996-97 to 2001-02 and the period from 1.4.2001 to 7.3.2002.
2. The assessee raised the following grounds of appeal:
(a) The order of the learned Commissioner of Income-tax (Central) passed u/s. 263 is erroneous both on facts and in law.
(b) The learned CIT (Central) erred in invoking powers u/s.
263 without appreciating the fact that the order proposed to be reviewed is held to be invalid by the CIT(A) vide his order calling for a report after obtaining required approval u/s. 158.
(c) Without prejudice to the above ground, the learned CIT (Central) erred in invoking powers u/s. 263 on an order which is passed consequent to order u/s. 263 thereby reviewing an order passed u/s. 263.
2 IT(SS)A No. 13/Hyd/2010M/s. Rayalaseema Green Energy Ltd.
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(d) The learned CIT (Central) failed to appreciate the fact that the issues that are reviewed in his proceedings were considered originally while making block assessment and satisfied with the explanation no addition was made and thereby erred in setting aside the order with a direction to make addition of Rs. 92,08,304 for A.Y. 2001-02 and Rs. 23,40,179 for the A.Y. 2002-03.
3. It was noticed that there was a delay of 323 days in filing this appeal. The assessee filed a petition explaining the delay. In its petition it was stated that the assessee received the CIT order on 8.4.2009. The assessee should have filed the appeal on or before 7.6.2009. Instead of this, the assessee filed a Writ Petition before the Hon'ble High Court in WP No. 13572 on 7.7.2009. Later the same was withdrawn by the assessee as the permission was granted by the Hon'ble High Court 15.4.2010. As such the assessee filed the appeal before the Tribunal on 26.4.2010. Further, he submitted that there was a short delay of around one month i.e., the period between 7.6.2009 i.e., the cut off date to file the appeal before the Tribunal and 7.7.2009, the date on which the WP filed before the Hon'ble High Court. Further he submitted that there was further delay of 10 days i.e., from the date of withdrawal of WP from Hon'ble High Court i.e., 15.4.2010 to the actual date of filing of the appeal before the Tribunal after that i.e., 26.4.2010. He submitted that the assessee is a sitting Member of Legislative Assembly, Guntakal constituency and contested the election held on 23.4.2009 and he was actually awaiting the result up to 16.5.2009 i.e., the date of declaration of result. Later the Congress Party with which he was associated got majority in the Assembly Elections and has to form the Government and the person who is to become Chief 3 IT(SS)A No. 13/Hyd/2010 M/s. Rayalaseema Green Energy Ltd.
============================= Minister hailed from the assessee's region and he was busy up to third week of July, 2009 in participation of swearing in ceremony and formation of the Government. Being so, it took little time to present the appeal. After withdrawal of WP from the High Court it also took little time to get certified copy from the High Court and also in filing the present appeal. Whatever the delay caused is on account of pursuing alternative remedy or the assessee's preoccupation in his political activities. The delay was not intentional and the AR prayed to condone the delay.
4. The DR strongly opposed condonation of delay.
5. We have heard both the parties and perused the material on record and the petition with regard to delay in filing the appeal. We have carefully gone through the reasons advanced by the assessee. Admittedly the assessee is pursuing the alternative remedy by filing the Writ Petition before the Hon'ble High Court. The assessee filed the WP No. 13572 of 2009 on 7.7.2009. Later, the same was withdrawn by the assessee on 15.4.2010. The assessee filed the appeal before us on 26.4.2010. This marginal delay in filing this appeal is on account of reasonable cause and accordingly by placing reliance on the judgement of Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji [1987] 2 SCC 107 (167 ITR 471) wherein it was held that when the question of substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. Accordingly, we condone the delay of 323 days and admit the appeal for adjudication.
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6. Now coming to the merit of the issue raised by the assessee, this is the second revisional order passed by the CIT(A) u/s. 263 of the Act on 30.3.2009. The original assessment order was passed on 26.3.2004 u/s. 158BC of the Act covering the block period 1996-97 to 2001-02 and the period from 1.4.2001 to 7.3.2002. This assessment order dated 26.3.2004 was subject matter of revision u/s. 263 of the Act vide order dated 29.3.2006. This revisional order was subject matter of appeal before this Tribunal. The Tribunal vide order dated 30.9.2009 in IT(SS)A No. 39/Hyd/2006 quashed the order passed u/s. 263 of the Act. In the meanwhile the Assessing Officer passed the consequential order to the order passed u/s. 263 of the Act on 29.12.2006. In our opinion, the consequential assessment order dated 29.12.2006 has no legs to stand, this is because this order has emanated from the order passed by the CIT u/s 263 dated 29.3.2006 which was quashed by the Tribunal vide order dated 30.9.2009. Being so, in our opinion, the order of the CIT passed u/s. 263 dated 30.3.2009 revising the assessment order dated 29.12.2006 cannot be sustained. The DR submitted before us that this is the second revisional order of the original assessment order dated 26.3.2004 by the CIT. Admittedly, this argument holds no merit. The CIT recorded in his order in the first para that this is revision order with reference to the consequential assessment order dated 29.12.2006 and not the revision of original assessment order dated 26.3.2004. Even if we consider the original assessment order dated 26.3.2004, there is no time available to the CIT to pass this order u/s. 263 dated 30.3.2009 as the CIT required to pass the order u/s. 263 within two years from the end of the financial year in which the order sought to be revised was passed. In this case the original assessment 5 IT(SS)A No. 13/Hyd/2010 M/s. Rayalaseema Green Energy Ltd.
============================= order was passed on 29.3.2004. In other words, he has to pass the revisional order u/s. 263 of the Act by 31st March, 2006 and the present order u/s. 263 was passed on 30.3.2009 by the CIT, which is time barred. Accordingly, we annul the order passed u/s. 263 dated 30.3.2009.
7. As we have quashed the impugned order itself, we refrain ourselves from going into merit of the other grounds raised by the assessee.
8. In the result, assessee's appeal is allowed.
Order pronounced in the open court on 31st January, 2013, Sd/- Sd/-
(SAKTIJIT DEY) (CHANDRA POOJARI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Hyderabad, dated 31 st January, 2013
tprao
Copy forwarded to:
1. M/s. Rayalaseema Green Energy Ltd., c/o. Sri K. Vasantkumar, Advocate, 403, Manisha Towers, 10- 1-18/31, Shyamnagar, Hyderabad-500 034.
2. The CIT (Central), Aayakar Bhavan, Hyderabad.
3. The DCIT, Central Circle-4, Hyderabad.
4. The Addl. CIT, Central Range-2, Hyderabad.
5. The DR - B Bench, ITAT, Hyderabad.