Foster Wheeler Bengal Pvt. Ltd., Kolkata V. THE DCIT, CIR-2(1), KOLKATA, Kolkata

ITA 104/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1201 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 25-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N O N E
• Assessee Lawyers: ARIJIT CHAKRABORTY
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

1 ITA NO.104/KOL/2016 FOSTER WHEELER BENGAL PVT. LTD., AY, 2011-12 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE .., /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M. BALAGANESH , AM] I.T.A. NO. 104/KOL/2016 ASSESSMENT YEAR: 2011-12 FOSTER WHEELER BENGAL PVT. LTD. (PAN: AABCF2267Q) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-2(1), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 21.08.2017 DATE OF PRONOUNCEMENT 03.11.2017 FOR THE APPELLANT SHRI ARIJIT CHAKRABORTY, AR FOR THE RESPONDENT N O N E ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF DISPUTE RESOLUTION PANEL- 2, NEW DELHI DATED 27.08.2015 FOR AY 2011-12. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE DREW OUR ATTENTION TO THE ADDITIONAL GROUND OF APPEAL PREFERRED BY THE ASSESS EE. THE ADDITIONAL GROUND OF APPEAL READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , AND IN LAW, FINAL ASSESSMENT ORDER PASSED BY THE LD. AO UNDER SECTION 143(3) R.W.S. 14 4C(13), BEING BEYOND THE STATUTORY PERIOD, IS BAD IN LAW AND LIABLE TO BE QUASHED. 3. NONE APPEARED FOR THE REVENUE. HOWEVER, AFTER G OING THROUGH THE FACTS EMANATING FROM THE RECORDS BEFORE US, WE ARE INCLINED TO ADJU DICATE THE LEGAL ISSUE, WHICH GOES TO THE ROOT OF THE MATTER. SINCE IT IS PURELY A LEGAL ISS UE, WE ADMIT THIS ADDITION GROUND OF APPEAL BY RELYING ON THE DECISION OF HONBLE SUPREME COURT IN NTPC VS. CIT 229 ITR 383 (SC). 4. WE HAVE HEARD LD. AR AND HAVE CAREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORDS. WE NOTE THAT THE DRAFT ASSESSMENT ORDER U/S. 144C O F THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS PASSED BY THE AO ON 2 3.02.2015. THE DRPS DIRECTIONS WERE 2 ITA NO.104/KOL/2016 FOSTER WHEELER BENGAL PVT. LTD., AY, 2011-12 ISSUED ON 27.08.2015. WE NOTE FROM A READING OF PA RA 6.2 OF THE IMPUGNED ORDER (FINAL ORDER OF AO), WHICH READS AS UNDER: 6.2.UPON RECEIPT OF THE DRAFT ORDER, DATED 23.02. 2015, ASSESSEE COMPANY HAD SUBMITTED APPLICATION BEFORE THE DISPUTE RESOLUTION PANEL (DR P). HONBLE DRP-2, NEW DELHI, HAD PASSED DIRECTIONS AS PER PROVISIONS OF SECTION 14 4C(5) READ WITH SECTION 144(C)(8) OF THE I. T. ACT ON 27.08.2015, WHICH WAS RECEIVED IN OUR OFF ICE ON 07.09.2015. FROM A READING OF THE ABOVE, IT IS DISCERNIBLE THA T THE AO GOT THE DIRECTION OF THE DRP ON 07.09.2015 AND AS PER SECTION 144C(13) OF THE ACT, WHICH READS AS UNDER: (13) UPON RECEIPT OF THE DIRECTIONS ISSUED UNDER SUB-SECTION (5), THE ASSESSING OFFICER SHALL, IN CONFORMITY WITH THE DIRECTIONS, COMPLETE, NOTWIT HSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTION 153 (OR SECTION 153B), THE ASS ESSMENT WITHOUT PROVIDING ANY FURTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH SUCH DIRECTION IS RECEIVED. FROM THE READING OF THE ABOVE SEC. 144C(13) OF THE ACT, IT IS CLEAR THAT THE AO HAS TO PASS THE FINAL ORDER WITHIN ONE MONTH FROM THE END OF TH E MONTH IN WHICH DRPS DIRECTION IS RECEIVED BY HIM. SO, AS PER THE LAW, THE LIMITATION TO PASS THE FINAL ASSESSMENT ORDER EXPIRES ON 31.10.2015. WE NOTE THAT THE IMPUGNED FINAL ORD ER WAS PASSED BY THE AO ON 09.11.2015 WHICH THE AO IS NOT EMPOWERED TO DO AND THUS, MAKES THE ORDER FRAGILE IN THE EYES OF LAW. THEREFORE, THE IMPUGNED ORDER IS BAD IN LAW AND CAN NOT BE SUSTAINED IN THE EYES OF LAW AND, THEREFORE, THE ORDER PASSED BY THE AO IS HELD TO BE NON-EST IN THE EYES OF LAW AND DOES NOT SURVIVE. FOR THIS PROPOSITION, WE RELY ON THE DECI SION OF THE TRIBUNAL, DELHI BENCHES IN IHG IT SERVICES (INDIA) (P) LTD. VS. DCIT (2016) 65 TAX MANN.COM 154 (DEL.TRIB.) AND THE ORDER OF THE TRIBUNAL COCHIN BENCH IN ENVESTNET ASSET MAN AGEMENT (INDIA) (P) LTD. VS. ACIT (2015) 53 TAXMANN.COM 430 (COCHIN.TRIB.). ACCORDIN GLY, THE IMPUGNED FINAL ORDER OF THE AO DATED 09.11.2015 IS HEREBY QUASHED. SINCE WE QU ASHED THE ASSESSMENT ORDER ITSELF, THE OTHER GROUNDS ARE ACADEMIC IN NATURE AND NEED NOT B E ADJUDICATED. APPEAL OF ASSESSEE IS ALLOWED. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 3RD OCT OBER, 2017 SD/- SD/- (M. BALAGANESH) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 3RD OCTOBER, 2017 JD.(SR.P.S.) 3 ITA NO.104/KOL/2016 FOSTER WHEELER BENGAL PVT. LTD., AY, 2011-12 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT FOSTER WHEELER BENGAL PVT. LTD., (MERGE D WITH AMEC FOSTER WHEELER INDIA PVT. LTD.) 13 TH FLOOR, PLOT G-1, BLOCK EP & GP, INFINITY BENCHMARK, SECTOR-V, SALT LAKE, KOLKATA-91. 2 RESPONDENT DCIT, CIRCLE-2(1), KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLK ATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY