2016 (7) TMI 1232

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....n the light of passing of an order u/s 143(1)/143(3) and in the absence of issuance of notice u/s 143(2) within time no reassessment is possible? (c) the reassessment is not permissible in view of the fact that the Assessing Officer had not considered objections of the assessee against reopening of the assessment? (d) there is no escapement of income for this assessment year in view of the fact that the depreciation of Windmills had been adjusted against Printing Business income of the assessee and said assessments had become final? 2. Whether on the facts and circumstances of the case the ITAT was right in its interpretation of Sections 80AB, 80IA/80-IA(7) of the I.T. Act, 1961 in regard to denial of relief u/s 80IA to the appellant? 2. However, vide Order dated 11.07.2007, this court, admitted Tax Case Appeal Nos.881 to 884 of 2007 on the following substantial questions of law: 1. Whether on the facts and circumstances of the case the order of the ITAT is nullity in law in view of violation of principles of natural justice by passing the order exparte? 2. Whether on the facts and circumstances of the case, the ITAT was right in its ....

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....Tax Appellate Tribunal in ITA Nos.1749 to 1752/Mds/03 were dismissed, by a common order dated 15.11.2006. 4. Perusal of the common order shows that the appeals were listed for hearing on 12.07.2006. Thereafter, it has been adjourned on several occasions on the request of the appellant. Details of which are hereunder: "These appeals by the assessee were last fixed for hearing on 12.07.2006. It was specifically stated while granting adjournment that no further adjournment shall be given. In the order sheet the words Last Opportunity were clearly mentioned and duly bears the signature of the counsel. Adverting to the antecedents of the matter we find that this case was first fixed for hearing on 22.03.2004. At the request of the assessee it was adjourned to 25.03.2004. Again prayer was made for adjournment and the case was adjourned to 31.03.2004. Thereafter it was adjourned to 22.4.04, 2.6.04, 29.7.04, 5.9.04, 13.12.04, 5.1.05, 10.3.05, 18.5.05, 27.4.06, 6.7.06 and 12.7.06. On all the occasions either assessee prayed for adjournment or chose not to appear. 2. Last when it was fixed for hearing on 19.7.06 a request for adjournment was made which reads as under: ....

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.... in law, in view of violation of the principles of natural justice, by passing the order exparte, is answered, against the assessee. 6. Going through the orders impugned, we are also, of the view that, the reopening of assessment, has been done in accordance with the provisions and they are also to be sustained in the light of the decision of the Hon'ble Supreme Court in CIT v. P.V.S. Beedies Pvt. Ltd. reported in 237 ITR 13 (SC) and Mahanagar Telephone Nigam Ltd. v. Chairman, CBDT and another reported in 246 ITR 173 (Del). On the facts and circumstances of the case, we reject the said contention of the assessee regarding reassessment. 7. When the Tribunal passed the common order, decision rendered in Velayudhaswamy Spinning Mills (P.) Ltd. v. Assistant Commissioner of Income-tax reported in [2012] 21 taxmann.com 95 (Mad.), was not rendered. However, when the instant tax appeals are heard, attention of this court was brought to the notice of the said judgment and submissions have been advanced to apply the same. Mr.T.R.Senthilkumar, learned counsel for the Revenue also submitted that the said judgment is challenged in the Hon'ble Supreme Court. In the earlier orders, ....

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....diered the scope of sub-section (6) of section 80-I, which is the corresponding provision of sub-section (5) of section 80-IA. Both are similarly worded and, therefore, we agree entirely with the Division Bench judgment of this court cited supra. In the case of CIT v. Mewar Oil and General Mills Ltd. (No.1)[2004] 271 ITR 311 (Raj); [2004] 186 CTR (Raj) 141, the Rajasthan High Court also considered the scope of section 80-I and held as follows (page 314 of 271 ITR): "Having considered the rival contentions which follow on the line noticed above, we are of the opinion that on finding the fat that there was no carry forward losses of 1983-84, which could be set off against the income of the current assessment year 1984-85, the recomputation of income from the new industrial undertaking by setting off the carry forward of unabsorbed depreciation or depreciation allowance from previous year did not simply arise and on the finding of the fact noticed by the Commissioner of Income-tax (Appeals), which has not been disturbed by the Tribunal and challenged before us, there was no error much less any error apparent on the face of the record which could be rectified. That question wo....