ITO, Ward - 52(3), Kolkata V. Sri Parasuram Bishoyi, Kolkata

ITA 1323/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7970 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2010
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 12-03-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 03-08-2009
• Court: TRIBUNAL
• Department Lawyers: MANORANJAN BISWAS
• Section: 40A(3); 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL 'A BENCH : KOLKATA (BEFORE HONBLE SRI B.R.MITTAL, J.M. AND HONBLE SRI B.K.HALDAR, A.M.) I.T.A. NO. 1323/KOL/2009 ASSESSMENT YEAR : 2001-02 INCOME TAX OFFICER, WARD 52(3),KOL VS. SRI P ARSURAM BISHOYI (PAN NO. AEGPB 3156E ) (APPELLANT) (RESPONDENT) APPELLANT BY : SR I MANORANJAN BISWAS, SR. D.R. RESPONDENT BY : NONE . O R D E R PER SHRI B.K.HALDAR, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A) XXXIII, KOLKATA DATED 30.4.09. 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : 1. THE LD. CIT(A) XXXIII, KOLKATA IS ERRED IN V IEW THAT ESCAPEMENT CANNOT BE ATTRIBUTED TO THE ASSESSEE AND CONSIDERING THE CASE OF ISSUING NOTICE U/S 148 AFTER 4 YEARS EVEN W ITH TAKING PRIOR APPROVAL OF LD. CIT(A)-XVIII, KOLKATA IS NOT AS PE R LAW. 2. THE LEARNED CIT(A)-XXXIII, KOLKATA IS ERRED IN TAKING THE NOTION THAT ONCE THE MATTER HAS BEEN CONSIDERED BY AND ADJUDICATED BY THE HONBLE ITAT REOPENING OF THE CASE ON SAME GROUND BY THE A.O. IS NOT CORRECT AS THERE CANNOT EXIST ANY RE ASON TO BELIEF ON THIS PART ONCE AN ISSUE HAS BEEN DECIDED BY A HIGHE R AUTHORITY. A MISC. APPLICATION WAS FILED AGAINST THE ORDER OF I.T.A.NO. 2560/KOL/2005 DATED 20.04.2007 AND AS THE FACTS A ND CIRCUMSTANCES , THE APPEAL WAS NOT JUSTIFIED IN DEL ETING THE ADDITION OF RS.15,31,291/- ON ACCOUNT OF SERVICE CHARGES. THE TRIBUNAL FURTHER AGREED WITH THE DECISION OF THE CIT(A)-XXXIII/KOLS ORDER NO. 77 DT. 05.10.2005. HOWEVER, THE PROVISION OF SECTION 40A(3) WAS NOT 2 INVOKED WHEN IT WAS APPARENT FROM THE FACTS AND CIR CUMSTANCES OF THE CASE THAT THE PAYMENTS TO THE COMMISSION AGENTS W ERE MADE THROUGH BEARER CHEQUES. 3. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF THE RESPONDENT. THEREFORE, WE PROCEED TO DISPOSE OF THE APPEAL EXPA RTE QUA THE RESPONDENT. 4. THE LEARNED D.R. HAS RELIED ON THE ORDER OF THE A.O. IN SUPPORT OF THE GROUNDS TAKEN BY THE REVENUE. 5. WE HAVE HEARD THE LEARNED D.R. AND PERUSED THE R ECORD. THE LEARNED CIT(A) HAS QUASHED THE PROCEEDINGS U/S 148 TAKEN BY THE A.O. AND THE ASSESSMENT ORDER IN CONSEQUENCE OF THE SAME HAS BEE N ANNULLED. THE RELEVANT FINDING OF THE LEARNED CIT(A) IN PARAGRAPH S 8 & 9 ARE REPRODUCED AS UNDER : 8. THE COMPLETE FACTS OF THE CASE THEREFORE SHO W THAT - (I) NOTICE U/S 148 WAS ISSUED AFTER 4 YEARS. THI S CAN BE ISSUED ONLY IF THE ESCAPEMENT IS ON ACCOUNT OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ALL THE MATERIAL FACTS BEFORE THE A.O. THE FACT OF THE PAYMENT NOT BEING BY A/C PAYEE CHEQUES WAS BEFORE THE A.O. IN THE ORIGINAL ASSESSMENT PROCEEDINGS. HENCE ESC APEMENT CANNOT BE ATTRIBUTED TO THE ASSESSEE. REOPENING OF THE CASE IS, THEREFORE, NOT AS PER LAW. (II) THE MATTER OF 40A(3) WAS CONSIDERED BY THE H ONBLE ITAT ON TWO DIFFERENT OCCASIONS AND THE ISSUE DECIDED IN F AVOUR OF THE ASSESSEE. THE NOTICE U/S 148 (26/03/08) WAS ISSUE D AFTER THE DATE OF THE REJECTION OF THE MISC. APPLICATION BY THE HO NBLE ITAT (07/12/07). ONCE THE MATTER HAS BEEN CONSIDERED BY AND ADJUDICATED BY THE HONBLE ITAT , REOPENING OF THE CASE ON SAME GROUND BY THE A.O. IS NOT CORRECT AS THERE CANNOT EXIST ANY REA SON TO BELIEF ON HIS PART ONCE AN ISSUE HAS BEEN DECIDED BY A HIGHER AUT HORITY. THEREFORE, THE ISSUE OF NOTICE U/S 148 IN THIS CASE WHICHEVER WAY ONE LOOKS AT IT, IS BAD IN LAW. THE INITIATION OF PROCEEDINGS U/S 148 IS THEREFORE NOT IN ACCORDANCE WITH LAW AND THE SAME IS STRUCK DOWN . 3 9. SINCE THE PROCEEDINGS U/S 148 ARE HELD AS B AD IN LAW AND THE ORDER ANNULLED, NO ORDER AS TO MERITS IS BEING MADE . 6. THE ABOVE FINDING OF THE LEARNED CIT(A) HAS NOT BEEN CONTROVERTED BY THE REVENUE. IN VIEW OF THE ABOVE, WE FIND NO IN FIRMITY IN THE ORDER OF THE LEARNED CIT(A) AND CONFIRM THE SAME. THUS THE GROUNDS TAKEN BY THE REVENUE ARE REJECTED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.03.2010 SD/- SD/- (B.R.MITTAL) (B.K.HALDAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12.03.2010 COPY FORWARDED TO :- 1) ITO, WARD 52(3), KOLKATA. 2) SRI PARSURAM BISOYI , P-44, PHASE-II, KASBA IN DUSTRIAL ESTATE, KOLKATA. 3) CIT(A), KOLKATA. 4) CIT, KOLKATA. 5) D.R., ITAT, KOLKATA. (TRUE COPY) BY OR DER ASSISTANT REGISTRAR BCD I.T.AT., KOLKATA.