Imran Badsha Bagwan, Ichalkaranji V. Deputy Commissioner of Income-tax,

ITA 1130/PUN/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1733 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-05-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 10-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Keywords: Reopening of assessment; Assessment record
• Section: 143(3); 142(1); 153A; 148; 132

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 1127 /PN/201 5 / ASSESS MENT YEAR : 20 07 - 08 SMT. KHATUNBI BADSHA BAGWAN, BAGWAN HOUSE, NO.499, PARVATI SAH. SANSTHA, NEAR ONKARESHWAR TEMPLE, ICHALKARANJI. . / APPELLANT PAN: A AYPB5128J VS. THE DY. COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE, KOLHAPUR . / RESPONDENT CENTRAL CIRCLE, KOLHAPUR . / RESPONDENT . / ITA NO. 11 30 /PN/201 5 / ASSESSMENT YEAR : 20 07 - 08 S HRI IMRAN BADSHA BAGWAN, BAGWAN HOUSE, NO.499, PARVATI SAH. SANSTHA, NEAR ONKARESHWAR TEMPLE, ICHALKARANJI. . / APPELLANT PAN: A ILPB23 09N VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOLHAPUR . / RESPONDENT ITA NO. 1127, 1130 & 1137 /PN/20 1 5 SMT. KHATUNBI BADSHA BAGWAN & ORS 2 . / ITA NO. 113 7 /PN/201 5 / ASSESSMENT YEAR : 20 07 - 08 SHRI BADSHA H ALLABAX BAGWAN, BAGWAN HOUSE, NO.499, PARVATI SAH. SAN STHA, NEAR ONKARESHWAR TEMPLE, ICHALKARANJI. . / APPELLANT PAN: A BFPB9592G VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOLHAPUR . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI S.K. RASTOGI, CIT / DATE OF HEARING : 2 5. 0 5 .201 6 / DATE OF PRONOUNCEMENT: 30 . 0 5 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS BUNCH OF THREE APPEAL S FILED BY THE RELATED A SSESSEE S ARE AGAINST SEPARATE ORDER S OF CIT (A) - 1 & 2 , KOLHAPUR , ALL DATED 29 . 0 5 .20 1 5 RELATING TO ASSESSMENT YEAR 20 07 - 08 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THIS BUNCH OF A PPEALS RELATING TO THE RELATED ASSESSEES ON SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, WE MAKE REFERENCE TO THE FACTS IN ITA NO. 1127 /PN/201 5 TO ADJUDICATE THE ISSUE. 3 . T HE PRELIMINARY ISSUE RAISED VIDE GROUND OF APPEAL NO.1 READS AS UNDER: - ITA NO. 1127, 1130 & 1137 /PN/20 1 5 SMT. KHATUNBI BADSHA BAGWAN & ORS 3 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) ERRED IN REJECTING THE GROUND OF THE APPELLANT THAT, SINCE THE APPELLANT HAVING NOT BEEN SUPPLIED THE REASONS FOR RE - O PENING THE ASSESSMENTS UNDER SECTION 147 OF INCOME TAX ACT, 1961, THE ORDER PASSED BY THE A.O. IS BAD IN LAW. THE APPELLANT SUBMITS THAT THE DIRECTION OF THE HONORABLE SUPREME COURT IN THE CASE OF GKN DRIVE SHAFT HAVING NOT BEEN FOLLOWED THE ASSESSMENT P ROCEEDINGS ARE BAD IN LAW. IT BE HELD ACCORDINGLY. 4. THE ASSESSEE IS AGGRIEVED BY THE ORDERS OF AUTHORITIES BELOW IN COMPLETING ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT WITHOUT SUPPLYING REASONS FOR REOPENING THE ASSESSMENT. 5. THE LEARN ED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT SINCE NO REASONS FOR REOPENING THE ASSESSMENT WERE SUPPLIED TO THE ASSESSEE AND HENCE, THERE WAS NO REASON TO REOPEN THE ASSESSMENT AND HENCE, THE ASSESSMENT FRAMED IN THE CASE ME RITS TO BE CANCELLED. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ALSO FILED A COPY OF REQUEST MADE FOR SUPPLYING THE REASONS RECORDED FOR REOPENING THE ASSESSMENT FOR ASSESSMENT YEAR 2007 - 08 . 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, POINTED OUT THAT THE REASONS WERE RECORDED BY THE ASSESSING OFFICER AND ARE AVAILABLE IN ASSESSMENT RECORDS, WHICH ADMITTEDLY WERE NOT GIVEN TO THE ASSESSEE. 7. ON PERUSAL OF THE ORDERS OF AUTHORITIES BELOW AND THE COPY OF REAS ONS FILED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , IT IS APPARENT THAT THE PRELIMINARY ISSUE NEEDS TO BE ADJUDICATED BEFORE GOING INTO MERITS OF THE ADDITION MADE IN THE HANDS OF ASSESSEE. 8. BRIEFLY, IN THE FACTS OF THE CASE, THE ASS ESSMENT WAS REOPENED BY THE ASSESSING OFFICER BY ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT AFTER ITA NO. 1127, 1130 & 1137 /PN/20 1 5 SMT. KHATUNBI BADSHA BAGWAN & ORS 4 RECORDING REASONS FOR REOPENING THE ASSESSMENT UNDER SECTION 147 OF THE ACT . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD SOUGHT REASON S FOR REOPENING THE ASSESSMENT, WHICH WAS NOT SUPPLIED TO THE ASSESSEE AND THE ASSESSMENT WAS COMPLETED THEREAFTER. THE ASSESSEE BEFORE THE CIT(A) AGITATED THAT WHERE THE ASSESSING OFFICER HAD NOT DISPOSED OF ASSESSEES O B JECTIONS AGAINST REASONS FOR REOP ENING THE ASSESSMENT, THE IMPUGNED ORDER WAS BOTH VOID AND BAD IN LAW. THE CIT(A) NOTED THAT IN THE ASSESSMENT ORDER , THERE WERE NO REASONS MENTIONED FOR REOPENING THE ASSESSMENT. HOWEVER, ON READING PARAS 4 AND 5 OF ASSESSMENT ORDER, IT APPEARS THAT THE CASE WAS REOPENED IN THE LIGHT OF THE FACT THAT IN CASE OF ASSESSEE IN ASSESSMENT YEARS 2000 - 01 TO 2006 - 07 , ASSESSMENT WAS MADE UNDER SECTION 153A OF THE ACT AND THE ADDITION WAS MADE ON ACCOUNT OF AGRICULTURAL INCOME, SINCE THE FACTS INVOLVED IN ASSESSME NT YEAR 2007 - 08 WERE ALSO SIMILAR, HENCE IT WAS TAKEN UP FOR SCRUTINY. IN VIEW OF THIS, THE CIT(A) REJECTED THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE. 9. THE COURTS HAVE TIME AND AGAIN HELD THAT WHERE THE ASSESSMENT IS BEING REOPENED BY RECORDING REASO NS FOR REOPENING THE ASSESSMENT UNDER SECTION 147 AND THEREAFTER, ISSUING NOTICE UNDER SECTION 148 OF THE ACT, THEN AFTER THE ASSESSEE HAS FILED THE RETURN OF INCOME, THEN THE ASSESSEE MAY ASK FOR THE REASONS FOR REOPENING THE ASSESSMENT AND THE ASSESSING OFFICER IS DUTY BOUND TO SUPPLY THE SAME TO THE ASSESSEE. THIS IS IN ORDER TO ENABLE THE ASSESSEE TO RAISE OBJECTIONS, IF ANY, AGAINST THE REASONS RECORDED FOR REOPENING THE ASSESSMENT AND AFTER THE SAID OBJECTIONS ARE MET WITH BY THE ASSESSING OFFICER, T HEN THE ASSESSMENT PROCEEDINGS ARE TO BE COMPLETED IN THE HANDS OF ASSESSEE. ITA NO. 1127, 1130 & 1137 /PN/20 1 5 SMT. KHATUNBI BADSHA BAGWAN & ORS 5 10. IN THE FACTS OF THE PRESENT CASE, THE ASSESSING OFFICER NOTED THAT SEARCH UNDER SECTION 132 OF THE ACT WAS CARRIED OUT AT THE PREMISES OF ASSESSEE ON 18.05.2005. THE ASSESS M ENT S FOR ASSESSMENT YEARS 2000 - 01 TO 2006 - 07 WERE FINALIZED UNDER SECTION 143(3) R.W.S. 153A OF THE ACT, WHEREIN THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE WAS NOT ACCEPTED. THE ASSESSING OFFICER NOTED THAT FOR THE YEAR UNDER CONSIDERATION, THE ASSE SSEE HAD SHOWN AGRICULTURAL INCOME OF RS. 7,32,722/ - IN THE RETURN OF INCOME FILED ON 31.03.2008 , IN WHICH IT HAD DECLARED TOTAL INCOME OF RS.1,97,008/ - . THE ASSESSING OFFICER WAS OF THE VIEW THAT THERE IS ESCAPEMENT OF INCOME WITHIN MEANING OF SECTION 147 OF THE ACT AND NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 05.10.2009 , WHICH WAS SERVED UPON THE ASSESSEE ON 08.10.2009 . THE ASSESSING OFFICER VIDE PARA 5 RECORD S THAT IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT, THE ASSESSEE HAS FILED THE R ETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,97,008/ - AS PER ORIGINAL RETURN. THE ASSESSEE THEREAFTER, CLAIMS TO HAVE ASKED FOR REASONS FOR REOPENING THE ASSESSMENT, WHICH WERE NOT PROVIDED TO THE ASSESSEE AND NOTICE UNDER SECTION 143(2) / 142(1) OF THE ACT WAS ISSUED AND THEREAFTER, ASSESSMENT WAS COMPLETED IN THE HANDS OF ASSESSEE. 11. BEFORE THE CIT(A), THE FIRST ISSUE RAISED BY THE ASSESSEE WAS AGAINST THE REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE ACT, WHEREIN IT WAS CONTENDED THAT THE ASSE SSING OFFICER HAD NO REASON TO REOPEN THE ASSESSMENT. IT WAS ALSO POINTED OUT THAT THE ASSESSING OFFICER HAD NOT SUPPLIED REASONS FOR REOPENING THE ASSESSMENT TO THE ASSESSEE AND THIS FACT WAS BROUGHT TO HIS NOTICE, BUT STILL THE REASONS FOR REOPENING THE ASSESSMENT WERE NOT SUPPLIED. THE ASSESSEE BY WAY OF GROUND OF APPEAL NO.2 BEFORE THE CIT(A) HAD AGITATED THAT THE ASSESSING OFFICER NOT HAVING DISPOSED OF THE ASSESSEES OBJECTIONS AGAINST REOPENING OF THE ASSESSMENT, THE IMPUGNED ORDER WAS VOID AND BAD IN ITA NO. 1127, 1130 & 1137 /PN/20 1 5 SMT. KHATUNBI BADSHA BAGWAN & ORS 6 LAW. THE CIT(A) NOTES THAT IN THE ASSESSMENT ORDER, NO REASON HAS BEEN MENTIONED FOR REOPENING THE ASSESSMENT . HOWEVER, FROM THE PERUSAL OF PARAS 4 AND 5 OF THE ASSESSMENT ORDER, IT TRANSPIRED THAT THE CASE WAS REOPENED BECAUSE OF THE ORDER PASSED UN DER SECTION 143(3) R.W.S. 153A OF THE ACT IN ASSESSMENT YEARS 2000 - 01 TO 2006 - 07. ON PERUSAL OF ORDERS OF ASSESSING OFFICER AND CIT(A), IT IS CLEAR THAT THE ASSESSEE HAD SOUGHT THE REASONS FOR REOPENING TH E ASSESSMENT WHICH WERE RECORDED BY THE ASSESSING OFFICER UNDER SECTION 147 OF THE ACT. HOWEVER, THESE REASONS WERE NOT SUPPLIED TO THE ASSESSEE EITHER BY ASSESSING OFFICER OR CIT(A) AND THE ASSESSMENT WAS COMPLETED WITHOUT REPLYING TO THE REQUEST OF ASSESSEE TO SUPPLY THE REASONS FOR REOPENING THE ASSES SMENT. THE ASSESSEE IS ALSO AGGRIEVED BY THE FACT THAT HIS OBJECTIONS AGAINST REOPENING OF ASSESSMENT WERE NOT DISPOSE D OF BY THE ASSESSING OFFICER. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, DURING THE COURSE OF HEARING H AVE PLACED ON RECORD THE COPY OF REASONS RECORDED FOR REOPENING THE ASSESSMENT, WHICH ARE AVAILABLE IN ASSESSMENT RECORD. IN VIEW THEREOF, THE ISSUE NEEDS TO BE DECIDED ON THIS JURISDICTIONAL ISSUE ONLY, WHEREIN THE MATTER NEEDS TO BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER, WITH DIRECTIONS TO SUPPLY THE COPY OF REASONS RECORDED FOR REOPENING THE ASSESSMENT UNDER SECTION 147 OF THE ACT TO THE ASSESSEE IN THE FIRST INSTANCE. THE ASSESSEE IS ALSO AT LIBERTY TO FILE ANY OBJECTIONS TO THE REASONS RECOR DED FOR REOPENING THE ASSESSMENT AND AFTER ADJUDICATING ON THE SAID OBJECTIONS AGAINST THE REOPENING OF ASSESSMENT, THE ASSESSING OFFICER HAS TO INFORM THE ASSESSEE IN THIS REGARD AND FRAME THE ASSESSMENT AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING T O THE ASSESSEE. ACCORDINGLY, THE MATTER IS SET - ASIDE TO THE FILE OF ASSESSING OFFICER, WHO SHALL DECIDE THE ISSUE IN LINE WITH THE SAID DIRECTIONS. THE GROUND OF APPEAL NO.1 RAISED BY THE ASSESSEE IS THUS, ITA NO. 1127, 1130 & 1137 /PN/20 1 5 SMT. KHATUNBI BADSHA BAGWAN & ORS 7 ALLOWED FOR STATISTICAL PURPOSES. IN VIEW OF OUR SETTING ASIDE THE MATTER TO THE FILE OF ASSESSING OFFICER, WE ARE NOT ADJUDICATING THE ISSUES RAISED ON MERITS. 12. THE FACTS AND ISSUE IN ITA NOS. 1130 /PN/201 5 & 1137 /PN/201 5 ARE IDENTICAL TO THE FACTS AND ISSUE IN ITA NO. 1127 /PN/201 5 AND O UR DECISION IN ITA NO. 1127 /PN/201 5 SHALL APPLY MUTATIS MUTANDIS TO ITA NOS. 1130/PN/2015 & 1137/PN/2015 . 1 3 . IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 30 TH DAY OF MA Y , 201 6 . S D/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 30 TH MA Y , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 2, KOLHAPUR ; 4. / THE CIT - I/II, KOLHAPUR / CIT (CENTRAL), PUNE ; 5. , , , - / DR SMC , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE