DCIR, CIR-8(2), KOLKATA, KOLKATA V. M/S. DELIGHTED HOLDINGS (P) LTD. , KOLKATA

MA 44/KOL/2024

AI Insights

The case involves a Miscellaneous Application (MA No. 44/KOL/2024) filed by the Revenue seeking to recall an order from ITA No. 624/KOL/2023, which pertained to the assessment year 2011-12. The original order had set aside the addition of \\u20b93,49,73,874 to the assessee's income, directing the Assessing Officer (AO) to delete the addition. The Revenue argued that the order was passed without considering their pending appeal against the CIT (A)'s order, which was still under adjudication. The assessee opposed the recall, emphasizing that the original order was passed after a thorough examination of the legal and merit aspects of the case, and that the reopening of the assessment was quashed due to non-application of mind by the AO.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 313954 (ITAT-KOLKATA)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-05-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Other Referred Cases: Hindustan Lever Ltd. vs R.B. Wadkar [2004] 137 Taxman 479(BOM)
• Laws Referred To: Section 254(2) of the Act, Section 147 of the Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAILEN SAMADDER
• Assessee Lawyers: ABHISHAK BANSAL
• Keywords: Reopening of assessment; Borrowed satisfaction
• Section: 147

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI SONJOY SARMA, JM MA No. 44/KOL/2024 (Arising in ITA No. 624/KOL/2023 for A.Y. 2011-12) DCIT, Cir-8(2), Kolkata Aayakar Bhawan, P-7, Chowringhee Square, 6th Floor, Kolkata, West Bengal, 700069 Vs. M/s. Delighted Holdings (P) Ltd. 12A, Room No- 102, Shyamkunj, Annapurna Apartment, Lord Sinha Road, Kolkata., Kolkata, West Bengal, 700071 (Appellant) (Respondent) PAN No. AABCE0588P Assessee by : Shri Abhishak Bansal, AR Revenue by : Shri Sailen Samadder, DR Date of hearing: 21.02.2025 Date of pronouncement : 06.05.2025 O R D E R Per Rajesh Kumar, AM: By virtue of this Miscellaneous Petition, the Revenue seeks the recalling the order passed by the Bench in ITA No. 624/KOL/2023, for A.Y. 2011-12, dated 08.01.2024 on the ground that the said order passed is containing apparent mistake within the meaning of Section 254(2) of the Act. 02. The ld. DR submitted before the Bench that the Revenue being aggrieved by the order of ld. CIT (A) , NFAC, Delhi, preferred an appeal before the ‘B’ Bench, Kolkata vide ITA No.882/KOL/2023, for A.Y. 2011- 12, on 21.08.2023 which is still pending for adjudication. However, in the meantime, the Tribunal passed the order in the assessee’s appeal in ITA No. 624/KOL/2023, vide order dated 08.01.2024, setting aside Page | 2 MA No. 44/KOL/2024 Delighted Holdings (P) Ltd.; 2011-12 the order of ld. CIT (A) and directing the ld. AO to delete the addition of ₹3,49,73,874/-. The ld. DR submitted that since the appeal of the Revenue was not heard together the appeal of the assessee as stated above and therefore, the said order passed by the Tribunal is suffering from patent error and needs to be recalled so that the same could be heard along with Revenue’s appeal. 03. The ld. AR on the other hand strongly opposed the contention put forward by the ld. DR by submitting that at the time of hearing it was not pointed out that the appeal of the Revenue is pending for adjudication and the co-ordinate Bench after hearing both the sides passed the order deciding the appeal on legal issue as well as on merit in favour of the assessee. The ld. AR submitted that the reopening of assessment has been quashed by the Bench u/s 147 of the Act besides giving his observations on merits also, wherein it directed the ld. AO to delete the addition. 04. The ld. AR submitted that even if the said order of the Bench is recalled no objective and meaningful purpose would be served as the reopening of assessment u/s 147 of the Act has been quashed on the ground of being invalid re-opening based upon the total non-application of mind by the ld. AO and in fact based on the borrowed satisfaction by relying on the decision of Hon'ble Bombay High Court in case of Hindustan Lever Ltd. vs R.B. Wadkar [2004] 137 Taxman 479(BOM). The ld. AR therefore prayed that the Miscellaneous Application raised by the Revenue may kindly be dismissed. 05. After hearing the rival contentions and perusing the materials available on record, we find that in this case at the time of hearing of the assessee’s appeal neither the assessee nor the Revenue pointed has out that any appeal by the Revenue against the order of ld. CIT (A) is Page | 3 MA No. 44/KOL/2024 Delighted Holdings (P) Ltd.; 2011-12 pending in the Tribunal and accordingly, the assessee’s appeal in ITA No. 624/KOL/2023 was heard on 13.12.2023 and disposed off vide order dated 08.01.2024. We observe that vide said order the co- ordinate Bench has quashed the reopening of assessment u/s 147 on the ground that non-application of mind by the ld. AO as well as on borrowed satisfaction as stated hereinabove. In our opinion, the order passed by the co-ordinate Bench is not suffering from any apparent/ prima facie mistake which warrant recalling of the said order. Even if the order is recalled, it would not serve any meaningful purposes as the reopening of assessment has been quashed. Therefore, we are inclined to dismiss the MA filed by the Revenue. 06. In the result, the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open court on 06.05.2025. Sd/- Sd/- (SONJOY SARMA) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated: 06.05.2025 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata "