M/s. United Traders Company, Kolkata V. T.R.O., 36, Kolkata, Kolkata

ITA 1233/KOL/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8063 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 14-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K RAKSHIT
• Assessee Lawyers: K M ROY
• Section: 142(1); 154

Judgement Text

I.T.A. NO.:1233/ KOL. / 2010 ASSESSMENT YEAR : 2006-07 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER), AND SHRI MAHAVIR SINGH (JUDICIAL MEMBER) I.T.A. NO.: 1233/ KOL. / 2010 ASSESSMENT YEAR : 2006-07 M/S. UNITED TRADERS COMPANY..APPELLANT 20, NETAJI SUBHAS ROAD, 1 ST FLOOR, BLOCK-A, KOLKATA-700 001 [PAN : AAAFU 6656 N] -VS.- TAX RECOVERY OFFICER-36, KOLKATA.....RESPONDENT , 18, RABINDRA SARANI, PODDAR COURT, 3 RD FLOOR, KOLKATA-700 001 APPEARANCES BY: SHRI K. M. ROY, C.A. FOR THE APPELLANT SHRI D.K. RAKSHIT, SR. DR. FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : OCTOBER 04, 2012 DATE OF PRONOUNCING THE ORDER : OCTOBER 1 2, 2012 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CALLED INTO QUESTION CORRECTNESS OF COMMISSIONER OF INCOME TAX (APPEALS)S ORDER DATED 24 TH MARCH, 2010, IN THE MATTER OF ASSESSMENT U/S. 143( 3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2006- 07. 2. IN THE FIRST GROUND OF APPEAL, AS SET OUT IN THE CONCISE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GRIEV ANCE:- I.T.A. NO.:1233/ KOL. / 2010 ASSESSMENT YEAR : 2006-07 PAGE 2 OF 5 THAT THE ASSESSMENT ORDER, HAVING BEEN PASSED BY T AX RECOVERY OFFICER, WHO IS NOT AN ASSESSING OFFICER, IS BAD IN LAWS AND MERITS ANNULMENT. 3. THE PLEA RAISED IN THIS GROUND OF APPEAL IS PURE LY A LEGAL PLEA SET OUT IN A NARROW COMPASS OF MATERIAL FACTS. THE ASSE SSEES INCOME TAX RETURN, FILED ON 29.09.2007 DISCLOSING A TAXABLE IN COME OF RS.2,91,043/- WAS SELECTED FOR SCRUTINY ASSESSMENT UNDER CASS AND , ACCORDINGLY, NOTICES WERE ISSUED U/S. 143(2) AND 142(1) OF THE A CT. IT WAS IN THE EXERCISE OF POWERS UNDER SECTION 127(2) OF THE ACT, THAT THE CIT, KOLKATA-XII HAD TRANSFERRED THIS CASE TO THE TAX RE COVERY OFFICER-36, KOLKATA, FOR DISPOSAL OF TIME BARRING SCRUTINY ASSE SSMENT, AND THIS TRANSFER OF CASE REMAINED IN FORCE TILL 31 ST DECEMBER, 2008. IT WAS IN THIS BACKDROP THAT THE TAX RECOVERY OFFICER-36, KOLKATA FRAMED THE IMPUGNED ASSESSMENT ORDER. 4. THE PLEA IS NOW RAISED TO THE EFFECT THAT THE TA X RECOVERY OFFICER DID NOT HAVE POWERS TO FRAME ANY ASSESSMENT, AND, F OR THIS SHORT REASON ALONE, IMPUGNED ASSESSMENT ORDER IS NON EST . 5. OUR ATTENTION IS INVITED TO THE DEFINITION OF EX PRESSION ASSESSING OFFICER U/S. 2(7A) OF THE ACT AND IT IS SUBMITTED THAT THIS DEFINITION DOES NOT SPECIFICALLY COVER A TAX RECOVERY OFFICER, THOUGH IT SPECIFICALLY COVERS AN INCOME TAX OFFICER, AN ASSIS TANT, DEPUTY, JOINT AND ADDITIONAL COMMISSIONER OF INCOME TAX AS ALSO A N ASSISTANT, DEPUTY, JOINT OR ADDITIONAL DIRECTOR OF INCOME TAX. OUR ATTENTION IS THEN INVITED TO THE DEFINITION OF A TAX RECOVERY OF FICER U/S. 2(44) WHICH, INTER ALIA , SHOWS THAT IT WAS ONLY WITH EFFECT FROM 13 TH JULY, 2006 THAT THE TAX RECOVERY OFFICER COULD EXERCISE OR PERFORM SUCH POWERS AND I.T.A. NO.:1233/ KOL. / 2010 ASSESSMENT YEAR : 2006-07 PAGE 3 OF 5 FUNCTIONS WHICH ARE CONFERRED ON, OR ASSIGNED TO, A N ASSESSING OFFICER UNDER THIS ACT AND WHICH MAY BE PRESCRIBED. OUR ATTENTION IS THEN INVITE4D TO THE PROVISIONS OF RULE 117C, WHICH IS BROUGHT IN FO RCE W.E.F. 16 TH OCTOBER, 2007, WHICH SPECIFICALLY PROVIDES THAT THE TAX RECOVERY OFFICER SHALL CONCURRENTLY HAVE POWERS TO RECTIFY M ISTAKES U/S. 154 IN AN ORDER PASSED BY THE ASSESSING OFFICER, IN RESPEC T OF WHICH TAX RECOVERY OFFICER HAS DRAWN A CERTIFICATE U/S. 222 T O INITIATE ATTACHMENT AND SALE OF MOVEABLE AND UNMOVEABLE PROPERTY, ARRES T AND DETENTION OF DEFAULTER OR APPOINTMENT OF RECEIVER TO MANAGE MOVE ABLE AND UNMOVEABLE PROPERTY OF THE DEFAULTER. IT IS THEN PO INTED OUT THAT SINCE THE ASSESSMENT YEAR INVOLVED IS 2006-07, THE ABOVE PROVISIONS OF LAW WERE NOT IN FORCE, AND, THEREFORE, VERY ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER. 6. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, RELIED UPON THE STAND OF THE AUTHORITIES BELOW. 7. WE ARE UNABLE TO SEE ANY MERITS IN ASSESSEES PL EA. SECTION 2(7A) SPECIFICALLY COVERS AN INCOME TAX OFFICER, AND A TA X RECOVERY OFFICER, U/S. 2(44) HAS TO BE ESSENTIALLY AN INCOME TAX OFF ICER SPECIFICALLY AUTHORISED BY A COMMISSIONER OF INCOME TAX OR A CHI EF COMMISSIONER OF INCOME TAX, TO EXERCISE THE POWERS OF A TAX RECO VERY OFFICER. WHEN AN INCOME TAX OFFICER IS AUTHORISED TO EXERCISE THE POWERS OF A TAX RECOVERY OFFICER, HE DOES NOT CEASE TO BE AN INCOME TAX OFFICER. IT CANNOT, THEREFORE, BE SAID THAT A TAX RECOVERY OFFI CER INHERENTLY LACKS THE STATUS OF AN INCOME TAX OFFICER. THAT APART, TH E ASSESSMENT IS FRAMED ON 29.12.2008, AND, EVEN GOING BY THE SUBMIS SIONS OF THE ASSESSEE, THE PROVISIONS OF SECTION 2(44) PERMITTIN G TAX RECOVERY I.T.A. NO.:1233/ KOL. / 2010 ASSESSMENT YEAR : 2006-07 PAGE 4 OF 5 OFFICERS TO DO ASSESSMENT WORK WAS AMENDED WELL BEF ORE THIS DATE. IT IS WHOLLY IMMATERIAL WHETHER OR NOT THIS PROVISION WAS IN FORCE IN THE BEGINNING OF THE RELEVANT ASSESSMENT YEAR, BECAUSE IT IS A PROCEDURAL PROVISION AND ALL THAT MATTERS IS THAT THE PROCEDUR E SHOULD BE CARRIED OUT IN ACCORDANCE WHEN SUCH PROCEDURE IS ADOPTED. I N ANY EVENT, POWER TO TRANSFER CASES U/S. 127(2) CANNOT BE CHALLENGED BEFORE THIS FORUM. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE REJECT THE PLEA OF THE ASSESSEE. 8. GROUND NO. 1 IS DISMISSED. 9. IN GROUND NO. 2, THE ASSESSEE HAS RAISED THE FOL LOWING GRIEVANCE: THAT THE DISALLOWANCE OF COMMISSION IS ILLEGAL, UN JUST AND ARBITRARY SINCE THESE HAVE ALLOWED UNDER SIMILAR TE RMS AND CONDITIONS SUBSEQUENTLY, AND IN SAME CASE, OPPORTUN ITY FOR CROSS EXAMINATION OF WITNESSES WAS NOT ALLOWED TO APPELLANT. 10. LEARNED COUNSEL WAS SPECIFICALLY ASKED WHETHER HE IS IN A POSITION TO PRODUCE, OR HAS PRODUCED AT ANY STAGE, EVIDENCES FOR SERVICES HAVING BEEN RENDERED BY THE PERSONS, WHO H AVE BEEN PAID THE COMMISSION. WHILE LEARNED COUNSEL REFERRED TO THE F ACT THAT THESE INCOMES ARE DULY DISCLOSED IN THE HANDS OF THE RECI PIENT THAT THE SAME COMMISSION WAS ALLOWED DEDUCTION IN THE OTHER YEARS , HE WAS NOT IN A POSITION TO PRODUCE ANY EVIDENCE FOR SERVICES RENDE RED, NOR SUCH EVIDENCE WAS PRODUCED BEFORE THE AUTHORITIES BELOW. IN OUR CONSIDERED VIEW, ONE OF THE FUNDAMENTAL REQUIREMENTS FOR ALLOW ING DEDUCTION IN RESPECT OF COMMISSION PAYMENT IS THAT THERE SHOULD BE EVIDENCE FOR SOME SERVICES HAVING BEEN RENDERED. THE SERVICES HA VING BEEN RENDERED CANNOT BE SIMPLY ASSUMED OR INFERRED. IN T HE ABSENCE OF SUCH I.T.A. NO.:1233/ KOL. / 2010 ASSESSMENT YEAR : 2006-07 PAGE 5 OF 5 EVIDENCE, NO INTERFERENCE IS CALLED FOR IN THIS DIS ALLOWANCE. WE, THEREFORE, CONFIRM THE SAME. 11. GROUND NO. 2 IS ALSO DISMISSED. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH OCTOBER, 2012. SD/- SD/- MAHAVIR SINGH PRAMOD KUMAR (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 12 TH DAY OF OCTOBER, 2012 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.