S.P. Jaiswal Estates Pvt. Ltd., Kolkata V. ACWT, CC-IV, Kolkata, Kolkata

CO 33/KOL/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9276 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 15-01-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 13-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S P LAHIRI
• Assessee Lawyers: S JHAJHARIACA
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI P.K.BANSAL, A.M. & SHRI GEORGE MATHAN, J.M. ] W.T.A. NOS. 11 TO 13/KOL/2011 : ASSESSMENT YEARS 2003-04 TO 2005-06 ACWT, CC-IV, KOLKATA -VS- M/S. S.P. JAIS WAL ESTATES PVT. LTD., KOL. PAN : AAGCS 5052F ( APPELLANT ) ( RESPONDENT ) C.O. NOS. 33 TO 35/KOL/2011 : ASSESSMENT YEARS 2003-04 TO 2005-06 M/S. S.P. JAISWAL ESTATES PVT. LTD., KOL. VS- ACWT, CC-IV, KOLKATA ( APPELLANT ) ( RESPONDENT ) DATE OF CONCLUDING THE HEARING : 08.01.2014 DATE OF PRONOUNCING THE ORDER : 15.01.2014 APPEARANCES : FOR THE DEPARTMENT : SHRI S.P. LAHIRI, JCIT, SR.DR : FOR THE ASSESSEE : S/SHRI S.JHAJHARIA,CA & SUJOY SEN, ADVOCATE O R D E R PER SHRI P.K.BANSAL, A.N. : THESE CROSS-APPEALS HAVE ARISEN AGAINST THE ORDERS OF THE CIT(A), CENTRAL-I, KOLKATA DATED 24 TH FEBRUARY, 2011 AND 22 ND FEBRUARY, 2011 FOR THE ASSESSMENT YEARS 2003-04 TO 2005-06. 2. THE REVENUE IN ALL THESE APPEALS HAS TAKEN THE F OLLOWING COMMON GROUND OF APPEAL EXCEPT THE CHANGE IN FIGURE. 1. THAT LD. CIT(A) HAS ERRED IN TREATING THE LAND A T GOA AS LAND BEING USED FOR COMMERCIAL PURPOSE WHEREAS IT IS AN URBAN VACAN T LAND FOR ALL PRACTICAL PURPOSES. 2.1 THE ASSESSEE, IN ITS CROSS-OBJECTIONS, HAS TAKE N THE FOLLOWING COMMON GROUND EXCEPT THE CHANGE IN FIGURE FOR THE ASSESSM ENT YEARS 2004-05 AND 2005-06. 2 WTA NOS.11 TO 13 & C.O. 33 TO 35 OF 2011 M/S. S.P.JAISWAL ESTATES PVT. LTD. A.YR. 2003-04 TO 2005-06 1. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE, THE HON'BLE CIT(A) ERRED IN UPHOLDING THE ORDER PASSED BY AO U/S 16(3)/17 WITHOUT APPRECIATING THE FACTS THAT THE REASONS FOR REOPENING OF THE PROCEEDINGS WERE NOT COMMUNICATED TO THE APPELLANT AND AS SUCH THE ORDER SO PASSED SUFFERS INFIRMITY AND IS LIABLE TO BE QUA SHED/ CANCELLED AND SET ASIDE. 2. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE, THE ORDER PASSED U/S 16(3)/17 BY THE AO WAS INVALID PRO CEEDINGS THE RELEVANT DETAILS WERE DULY DISCLOSED BY THE APPELLANT AND AS SUCH THE REOPENING OF THE PROCEEDINGS SO INITIATED AND THE ORDER SO PASSE D IS VOID ABINITIO AND IS LIABLE TO BE QUASHED/ CANCELLED AND SET ASIDE. 3. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO IN DISALLOWING THE PROPORTIONATE CLAIM FOR LIABILITY ON MOTOR CAR FOR RS.2,67,049/- FROM VALUE OF MOTOR CONSIDERED IN NET WEALTH OF THE APPELLANT AND IN VIEW OF FACTS AND CIRCUMSTANCES, ACTION OF CIT-(A) SUFFERS INFIRMITY AND IT MAY KINDLY BE HELD ACCORDINGLY. IN GROUND NO.3 FOR THE ASSESSMENT YEAR 2004-05, THE FIGURE OF RS.6,40,861/- AND FOR THE ASSESSMENT YEAR 2005-06, THE FIGURE OF RS.9,59, 736/- ARE RAISED IN PLACE OF RS.2,67,049/- FOR THE ASSESSMENT YEAR 2003-04 AS R EPRODUCED ABOVE. 3. SINCE IN THE CROSS-OBJECTION, THE ASSESSEE HAS T AKEN THE LEGAL GROUND CHALLENGING THE VALIDITY OF THE PROCEEDINGS INITIAT ED UNDER SECTION 16(3)/17 OF THE WEALTH TAX ACT, AS MENTIONED THERE, THE ASSESSEE HA S NOT GIVEN THE COPY OF THE REASONS, EVEN THOUGH THE ASSESSEE HAS FILED THE RET URN, IN REPLY TO THE NOTICE UNDER SECTION 17 OF THE WEALTH TAX ACT. 4. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CON SIDERED THE SAME ALONG WITH THE ORDERS OF THE HONBLE SUPREME COURT IN THE CASE OF M/S.GKN DRIVESHAFTS (INDIA) LTD. 259 ITR PAGE 19 (SC). WE NOTED IN THIS ORDER THAT THE HONBLE SUPREME COURT HAS LAID DOWN THE PROCEDURE IN THE CA SE AND ASSESSMENT HAS BEEN REOPENED UNDER SECTION 147 OF THE INCOME TAX ACT (S IMILAR TO SECTION 17 OF THE 3 WTA NOS.11 TO 13 & C.O. 33 TO 35 OF 2011 M/S. S.P.JAISWAL ESTATES PVT. LTD. A.YR. 2003-04 TO 2005-06 WEALTH TAX ACT). IT IS NOT DENIED THAT IN THE CASE OF THE ASSESSEE, ALL THE THREE ASSESSMENTS HAVE BEEN MADE BY INITIATING THE PROCEE DINGS UNDER SECTION 17 OF THE WEALTH TAX ACT. IN THE CASE OF GKN DRIVESHAFTS (IND IA) LTD. ( SUPRA ), THE HONBLE SUPREME COURT HAS HELD AS UNDER: WE SEE NO JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER UNDER CHALLENGE. HOWEVER, WE CLARIFY THAT WHEN A NOTICE U NDER SECTION 148 OF THE INCOME-TAX ACT IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICE IS TO FILE A RETURN AND IF HE SO DESIRES, TO SEEK REASONS FOR ISSUING NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, TH E NOTICES IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE AS SESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE INSTANT CASE, AS THE REASONS HAVE BEEN DISCLOSED IN THESE PROCEEDINGS, THE ASSESSING OFFICER HAS TO DISPOSE OF THE OBJECTI ONS, IF FILED, BY PASSING A SPEAKING ORDER, BEFORE PROCEEDING WITH TH E ASSESSMENT IN RESPECT OF THE ABOVESAID FIVE ASSESSMENT YEARS. THE DECISION OF THE HONBLE SUPREME COURT, IN OUR O PINION, IS BINDING ON THE ASSESSEE AS WELL AS ON THE REVENUE. IN THIS CASE, W E NOTED THAT THE ASSESSEE FILED HIS RETURN AFTER RECEIVING THE NOTICE UNDER SECTION 17. THE ASSESSEE HAD ASKED FOR THE REASONS TO BELIEVE BUT THE AO HAS NOT SUPPLIED THE COPY OF THE REASONS TO BELIEVE TO THE ASSESSEE SO THAT THE ASSESSEE COULD HAVE FILED OBJECTION IN RESPECT OF ISSUANCE OF THE NOTICE UNDER SECTION 17 AND ALSO IN RESPECT OF PROCEEDINGS INITIATED THERETO. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTO RE THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION THAT THE AO, BEFORE PASSING THE REASSESSMENT ORDER, SHALL COMPLY WITH THE PROCEDURE OF THE HONBLE SUPREME COURT FOR REASSESSMENT HEREIN AS HAS BEEN LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. VS- ITO & OTHERS( SUPRA ) AND MAKE THE REASSESSMENT AFRESH, AFTER GIVING DUE AND PROPER OPPORTUNITY TO THE ASSESSEE. 4 WTA NOS.11 TO 13 & C.O. 33 TO 35 OF 2011 M/S. S.P.JAISWAL ESTATES PVT. LTD. A.YR. 2003-04 TO 2005-06 4.1 SINCE WE HAVE SET ASIDE THE ASSESSMENTS, THEREF ORE, THE OTHER GROUNDS TAKEN BY THE ASSESSEE IN THE CROSS OBJECTIONS AND THE GRO UND TAKEN BY THE REVENUE IN THE APPEALS BECOME INFRUCTUOUS. 5. IN THE RESULT, THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES, WHILE THE APPEALS FILED B Y THE REVENUE STANDS DISMISSED BEING INFRUCTUOUS. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 TH JANUARY, 2014. SD/- SD/- (GEORGE MATHAN) (P. K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 15 TH JANUARY, 2014 COPY OF THE ORDER FORWARDED TO: 1. M/S. S.P.JAISWAL ESTATES PVT. LTD., 235/1, A.J.C. B OSE ROAD, KOLKATA 700 020. 2. ACWT, CC-IV, KOLKATA 3. THE CIT(A), KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA TALUKDAR(SR.P.S.) 5 WTA NOS.11 TO 13 & C.O. 33 TO 35 OF 2011 M/S. S.P.JAISWAL ESTATES PVT. LTD. A.YR. 2003-04 TO 2005-06