Orbit Constructions, Mumbai vs Assessee

ITA Nos.1458, 1459 & 1460/Mum/2013 Assessment Year: 2006-07 M/s. Orbit Constructions Dy. Commissioner of 301, The Angel, 2, Krishna Income Tax Central Sanghi Path, Gamdevi Vs. Circle-47 Mumbai 400 007 Mumbai PAN:AAAFO 5480 G (Appellant) (Respondent)

Assessee by : Shri Rakesh Joshi Revenue by : Shri Pravin Kumar Date of hearing : 17.06.2015 Date of Order : 30.06.2015

PER G.S. PANNU, AM:

In the captioned three appeals, assessee has raised a common grievance. The appeal in ITA No.1458/Mum/2013 for Assessment year 2006-07 is taken as the lead case, as the facts and circumstances are similar in all the captioned appeals.

2. ITA No. 1458/Mum/2013 is an appeal directed against the order of the Ld. CIT(A)[hereinafter referred to as 'The CIT(A)'] dated 27.11.2012 which in turn has arisen from an order passed by Assessing Officer dated 27.12.2011 under section 153A r.w.s. 143(3) of the Income Tax Act, 1961, [hereinafter referred to as 'The Act'] for Assessment year 2006-07.

ITA Nos.1458, 1459 & 1460/Mum/2013 2 Assessment year: 2006-07

3. The primary contention of the appellant-assessee is that the Assessing Officer has passed the impugned order under section 143(3) r.w.s. 153A of the Act without appreciating that the proceedings for the impugned year were pending before the Income Tax Settlement Commission (ITSC) for final disposal and that the offer before the ITSC included all incomes offered upto the last date of hearing before the ITSC on 09.11.2011.

4. The Ld.CIT(DR) has admitted that the Assessing Officer has merely taken cognizance of the total income as disclosed before the ITSC for the purposes of computation of incomes in the impugned assessment orders for all the three captioned assessment years. The Ld. CIT(DR) has referred to the finding of the CIT(A) to the effect that the methodology adopted by the Assessing Officer does not amount to making any additions to the returned income. The said position is not disputed by the appellant, but it is submitted that the matter be restored back to the file of the Assessing officer with directions to assess the income of the assessee in accordance with the final order of the ITSC. The Ld. CIT(DR) has not opposed the aforesaid plea of the appellant.

5. It is quite well understood that the ITSC has exclusive jurisdiction over the proceedings in the course of which certain incomes have been disclosed by the assessee; and, the final outcome of the proceedings pending before the ITSC and the incomes determined thereof would have to be statutorily adopted by the Assessing Officer for the relevant assessment years. Ostensibly, the matter is pending before the ITSC for final disposal, as contended by the Ld. Representative for the assessee before us. In this background of the matter, the impugned order of the CIT(A) is set-aside and the assessment is remanded back to the file of ITA Nos.1458, 1459 & 1460/Mum/2013 3 Assessment year: 2006-07

the Assessing Officer to pass a fresh order in accordance with the awaited final order of the ITSC. Needless to say, the Assessing Officer shall allow the assessee a reasonable opportunity of being heard, before passing a fresh order in accordance with law. Thus, on this aspect, assessee succeeds for statistical purposes with respect to Ground of Appeal Nos. 1 to 3.

6. In so far as Ground of Appeal No. 4 and 5 are concerned they relate to initiation of the proceedings for levy of penalty under section 271(1)(c) of the Act. The challenge of the appellant is quite pre-mature, as the penalty proceedings were merely initiated by the Assessing Officer. Accordingly, the said Grounds of Appeal are dismissed.

7. In the result, appeal of the assessee in ITA No. 1458/Mum/2013 for assessment year 2006-07 is partly allowed above.

8. It was a common ground between the parties that the issues, facts and circumstances in the other captioned appeals are similar to those considered by us in the appeal for assessment year 2006-07 in the earlier paras. Therefore, our decision in the appeal of the assessee for assessment year 2006-07 shall apply mutatis mutandis in the other two captioned appeals also.

9. Resultantly, all the captioned appeals are partly allowed.

Order pronounced in the open court on this 30th day June, 2015.

Sd/- Sd/- (AMIT SHUKLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated: 30.06.2015 *SKS ITA Nos.1458, 1459 & 1460/Mum/2013 4 Assessment year: 2006-07

Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT(A) Concerned, Mumbai The DR "C" Bench //True Copy//

By Order

Dy/Asstt. Registrar, ITAT, Mumbai.