Commissioner Of Income Tax (Central), Gurgaon v. M/S Marigold Merchandise (P) Ltd., New Delhi

ITA No. 182 of 2015 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No. 182 of 2015 (O&M) Date of Decision: 14.10.2015 Commissioner of Income Tax (Central), Gurgaon ....Appellant. Versus M/s Marigold Merchandise (P) Ltd., New Delhi ...Respondent. 1.Whether the Reporters of the local papers may be allowed to see the judgment?the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? CORAM:-HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE RAMENDRA JAIN. PRESENT: Mr. Rajesh Sethi, Senior Standing Counsel with Mr. Arun Biriwal, Advocate and Mr. Arun Biriwal, Advocate and Ms. Pridhi Jaswinder Sandhu, Advocate for the appellant. AJAY KUMAR MITTAL, J. 1.This order shall dispose of two appeals bearing ITA Nos.182 and 229 of 2015 as according to the learned counsel for theappellant, the issues involved herein are identical. For brevity, the factsare being taken from ITA No. 182 of 2015. 2.Delay of 214 days in refiling ITA No. 182 of 2015 is condoned. 3.This appeal has been preferred by the revenue underSection 260A of the Income Tax Act, 1961 (in short “the Act”) against theorder dated 27.12.2013 (Annexure A-3) passed by the Income Tax ITA No. 182 of 2015 Appellate Tribunal, Delhi Bench “F”, New Delhi (hereinafter referred toas “the Tribunal”) in ITA No. 2667/Del/2013, relating to the assessmentyear 2007-08, claiming the following substantial questions of law:- (i) Whether in the facts and in the circumstancesof the case the order (Annexure A-3) of theHon'ble ITAT is not perverse when it is seenthat the correct and legal view point of the A.O.and CIT(A) holding that the assessee was anadventure of nature of trade, has been reversedwithout there being any sustainable material forthe same? (ii) Whether in the facts and circumstances of thecase in hand, the view point of ITAT holding thatthe assessee's gains were profits from sale ofspecified agricultural land which does not comewithin the definition of assets as prescribed u/s2(14) and by virtue of Section 2(1A)(a) readwith Section 2(14)(iii) read with section 10(1)are to be treated as exempt income, can besaid to be legal and valid? (iii) (iv) Whether or whether not the findings have beenrecorded by ITAT on misreading andmisinterpretation of facts and evidenceemanating on record?Whether the ITAT did not commit grave error inarriving at such conclusions after adoptingerroneous criteria and by importing such facts ITA No. 182 of 2015 record? (ii) Whether in the facts and circumstances of thecase in hand, the view point of ITAT holding thatthe assessee's gains were profits from sale ofspecified agricultural land which does not comewithin the definition of assets as prescribed u/s2(14) and by virtue of Section 2(1A)(a) readwith Section 2(14)(iii) read with section 10(1)are to be treated as exempt income, can besaid to be legal and valid? (iii) (iv) Whether or whether not the findings have beenrecorded by ITAT on misreading andmisinterpretation of facts and evidenceemanating on record?Whether the ITAT did not commit grave error inarriving at such conclusions after adoptingerroneous criteria and by importing such facts ITA No. 182 of 2015 record? 4.A few facts necessary for adjudication of the presentappeals as narrated in the appeal i.e. ITA No. 182 of 2015 may benoticed. A search and seizure operation under Section 132 of the Actwas conducted on 17.9.2008 in Kamdhenu Group of cases including M/sMarigold Merchandise Pvt. Ltd. (the assessee herein). A notice dated9.3.2010 under Section 153A of the Act was issued to the assessee whofiled its return on 30.3.2010 for the assessment year 2007-08 declaringnil income and current loss at ` 2,73,866/-. Thereafter, notice dated20.5.2010 under Sections 143(2) and 142(1) of the Act along withquestionnaire was issued to the assessee who filed details anddocuments to the same. The assessment order dated 28.12.2010(Annexure A-1) under Section 143(3) of the Act was passed by theAssistant Commissioner of Income Tax, Central Circle, Alwar by makingan addition of ` 31,40,73,445/-. Feeling aggrieved, the assessee filedappeal under Section 250(6) of the Act before the Commissioner ofIncome Tax (Appeals), Central Jaipur [for brevity “the CIT(A)”]. The CIT(A) vide order dated 27.2.2013 (Annexure-A-2) dismissed the appealsfor both the assessment years 2007-08 and 2008-09. Still dissatisfied,the assessee challenged the order, Annexure A-2, by filing an appealbefore the Tribunal. The Tribunal vide order dated 27.12.2013(Annexure A-3) allowed the appeals of the assessee for both theassessment years, i.e. 2007-08 and 2008-09. Hence, the presentappeals by the revenue. 5.We have heard learned counsel for the revenue. 6.The issue that arises for consideration is that when the ITA No. 182 of 2015 -4- Assessing Officer who passed the assessment order was based at Alwarand the first appeals were adjudicated by the CIT(A), Central Jaipur andthe second appeals were adjudicated by the Tribunal at Delhi, whetherthe appeals under Section 260A of the Act before this Court would bemaintainable. 7.The matter is no longer res integra. This Court in Commissioner of Income Tax (Central) Gurgaon v. M/s ParabolicDrugs Ltd. ITA No. 49 of 2012 decided on 11.10.2012 following theDivision Bench judgment of this Court in The Commissioner of IncomeTax, Faridabad v. M/s Motorola India Ltd. ITA No. 44 of 2005 decidedon 3.10.2007 had held as under:- “8.Accordingly, the present appeal is dismissed byholding that this Court has no territorial jurisdiction toadjudicate upon the lis over an order passed by theAssessing Officer at New Delhi. Consequently, theappeal is returned to the Revenue for filing before thecompetent Court of jurisdiction in accordance withlaw.” 8.In view of the above, the present appeals are dismissed asthis Court has no territorial jurisdiction to adjudicate upon the lis over anorder passed by the Assessing Officer at Alwar. Consequently, both theappeals are returned to the revenue for filing before the competent courtof jurisdiction in accordance with law. (AJAY KUMAR MITTAL) JUDGE October 14, 2015 gbs (RAMENDRA JAIN) JUDGE