Rotomax Distributors Pvt. Ltd., Kolkata V. ITO, Ward-2(3),Kolkata, Kolkata

ITA 138/KOL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7525 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 27-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Assessment record

Judgement Text

PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA BEFORE SH. J.SUDHAKAR REDDY, ACCOUNTANT MEMBER & SH.S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 138/KOL/2017 (ASSESSMENT YEAR- 2012-13) ORDER PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 29.09.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA [HEREINAFTER CIT(A)] FOR AY 2012-13. 2. HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. 3. THE CONTENTION OF THE LD. AR IS THAT THE ASSESSMENT MADE BY THE AO WAS NOT IN ACCORDANCE WITH LAW FOR THE REASON, THE NOTICE ISSUED UNDER SECTION (HEREINAFTER U/S) 143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) BY THE AO WAS WITHOUT JURISDICTION. CHALLENGING THE SAME, THE ASSESSEE FILED AN ADDITIONAL GROUND BEFORE THIS TRIBUNAL AND SUBMITS THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE GOES TO THE ROOT OF THE MATTER AND NO FRESH INVESTIGATION OF FACTS IS REQUIRED IN ADJUDICATING THE SAME. HE PLACED RELIANCE IN THE CASE OF JUTE CORPORATION OF INDIA REPORTED IN 187 ITR 688 AND NATIONAL THERMAL POWER CORPORATION REPORTED IN 229 ITR 383 AND SUBMITTED TO TAKE THE ADDITIONAL GROUNDS ON FILE AND ADJUDICATE THE SAME AS PRELIMINARY ISSUE. ROTOMAX DISTRIBUTORS PVT. LTD. 52 WESTON STREET, BOWBAZAR, KOLKATA- 700012. PAN- AAFCR1313M VS INCOME TAX OFFICER WARD- 2(3), KOLKATA. (APPELLANT) (RESPONDENT) APPELLANT BY SH. S.M. SURANA , ADV. RESPONDENT BY DR. P.K. SRIHARI , CIT(DR) DATE OF HEARING 22 .0 7 .2019 DATE OF PRONOUNCEMENT 2 6 .07 .2019 ITA NO. 138/KOL/2017 (ASSESSMENT YEAR- 2012-13) PAGE | 2 4. IN REPLY, THE LD. DR VEHEMENTLY OPPOSED THE SAME AND SUBMITTED WITHOUT THERE BEING ANY MATERIAL EVIDENCE TO SHOW THAT THE AO HAS NO JURISDICTION TO ISSUE NOTICE U/S 143(2) OF THE ACT AND ENTERTAINING THE ADDITIONAL GROUND AT THIS JUNCTURE IS NOT PERMISSIBLE. HE SOUGHT TIME TO EXAMINE THE SAME BY SUMMONING ASSESSMENT RECORD FROM THE ASSESSING AUTHORITY. FURTHER, HE CONTENDED THAT THE ISSUE RAISED IN ADDITIONAL GROUNDS WAS RAISED FOR THE FIRST TIME BEFORE THIS TRIBUNAL AND NO SUCH GROUND RAISED BEFORE CIT(A) AS THE ASSESSEE REMAINED ABSENT BEFORE THE CIT(A). THE ASSESSEE DID NOT AVAIL AN OPPORTUNITY IN QUESTIONING THE ISSUE RAISED IN ADDITIONAL GROUND BEFORE THE CIT(A) AND THE CIT(A) CONFIRMED THE ASSESSMENT ORDER PASSED BY THE AO ON MERITS. FURTHER, HE REFERRED TO SUB- SECTION 4 OF SECTION 124 OF THE ACT AND SUBMITTED THAT THERE IS A LIMITATION OF THIRTY DAYS PROVIDED IN SUB-SECTION 3 OF SECTION 124 OF THE ACT AND THE ASSESSEE AFTER RECEIVING NOTICE U/S 143(2) OF THE ACT, DID NOT QUESTION THE JURISDICTION ASSESSING OFFICER WITHIN THIRTY DAYS AS PROVIDED THEREIN. THE LD. DR PRAYED TO DISMISS THE ADDITIONAL GROUNDS MADE BY THE ASSESSEE. IT IS NOTED THAT THERE IS NO DISPUTE RAISING OF ADDITIONAL GROUND CHALLENGING THE JURISDICTION OF AO FOR THE FIRST TIME AND THE CIT(A) DISMISSED THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE CONFIRMING THE ASSESSMENT ORDER PASSED BY THE AO EX-PARTE OF ASSESSEE. 5. WE FIND IT IS A SETTLED PRINCIPLE THAT THE LEGAL GROUND CAN BE RAISED BEFORE THIS TRIBUNAL AT ANY TIME PENDING APPEAL BUT HOWEVER, IT IS NOTED IN ORDER TO ENTERTAIN THE PRESENT ADDITIONAL GROUND WHICH REQUIRES INVESTIGATION OF SOME FACTS RELATING TO JURISDICTION OF AO. THERE IS NO EVIDENCE BROUGHT ON RECORD TO SHOW THAT THE AO HAS NO JURISDICTION OF THE ASSESSEE. THEREFORE, IN OUR OPINION, AS RIGHTLY POINTED OUT BY THE LD. DR, THE MATTER IS TO BE EXAMINED IN DETAIL IN RESPECT OF JURISDICTION OF AO. CONSIDERING THE FACTS AND CIRCUMSTANCES AND OF THE LEGAL ISSUE INVOLVED, WE DEEM IT PROPER TO REMAND THE MATTER TO THE FILE OF AO FOR HIS EXAMINATION OF ISSUE INVOLVING THE ADDITIONAL GROUND AND AS WELL AS ON MERITS AND PASS AN ORDER IN ACCORDANCE WITH LAW. ITA NO. 138/KOL/2017 (ASSESSMENT YEAR- 2012-13) PAGE | 3 6. THEREFORE, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. IN VIEW OF THE ADJUDICATION OF ADDITIONAL GROUND AS PRELIMINARY ISSUE AND MAIN GROUNDS RAISED ON MERITS BECOMES ACADEMIC REQUIRING NO ADJUDICATION BY US, BUT HOWEVER, THE AO IS DIRECTED TO EXAMINE THE SAME AND PASS ORDER THERETO. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26.07.2019. SD/- SD/- (J.SUDHAKAR REDDY) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:- 26.07.2019 BIDHAN COPY FORWARDED TO: 1. APPELLANT- ROTOMAX DISTRIBUTORS PVT. LTD., 52 WESTON STREET, BOWBAZAR, KOLKATA- 700012. 2. RESPONDENT- ITO, WARD- 2(3), KOLKATA. 3. CIT-KOLKATA 4. CIT(APPEALS)-1, KOLKATA (SENT THROUGH MAIL) 5. DR: ITAT -KOLKATA BENCHES (SENT THROUGH MAIL) BY ORDER AR/H.O.O ITAT, KOLKATA