I.T.O., Ward-32(1), Kolkata, Kolkata V. M/S. Kaycee Trading Co., Kolkata

ITA 142/KOL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4062 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2016
• Appeal Filed By: Department
• Bench Allotted: SMC
• Next Hearing Date: 09-12-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 29-01-2015
• Court: TRIBUNAL
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SRI ABY T.VARKEY, JM & SHRI WASEE M AHMED, AM ] I.T.A NO.142/KOL/2015 ASSESSMENT YEAR : 2007-0 8 I.T.O., WARD-32(1) -VS.- M/S. KAYCEE TR ADING CO. KOLKATA KOLKATA [PAN : AADFK 1092 P] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : NONE FOR THE RESPONDENT : NONE DATE OF HEARING : 09.12.2016. DATE OF PRONOUNCEMENT : 28.12.2016. ORDER PER ABY T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-9, KOLKATA DATED 10.11.2014 FOR AY 2007-08. 2. GROUND NOS.1,2 AND 3 RAISED BY THE REVENUE ARE IN RESPECT OF THE ORDER PASSED BY THE LD. CIT(A) HOLDING THAT THE ASSESSMENT ORDER PASSED BY THE AO IS WITH OUT JURISDICTION. 3. THE BRIEF FACTS OF THE CASE IS THAT THE ASSE SSEE FILED RETURN OF INCOME FOR A.Y.2007- 08 ON 13.11.2007 DISCLOSING A LOSS OF RS.8,72,967/- . LATER ON THE CASE WAS SELECTED FOR SCRUTINY. THE CASE WAS ASSESSED U/S 144 OF THE ACT ON A TOTAL INCOME OF RS.1,23,86,720/- ON 31.12.2009 BY ADDL. CIT , RANGE-32. THE AO PASSE D THE ORDER BY ASSUMING THE GROSS PROFIT AT 8% . BEING AGGRIEVED BY THE ORDER O F AO THE ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO DISPOSED OFF THE APPEAL DIRECTIN G THE AO TO ESTIMATE THE GROSS PROFIT AT 4%. ON APPEAL AGAINST THE ORDER THE TRIBUNAL KOL KATA BENCH SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORED THE ISSUE TO THE FILE OF AO WITH THE DIRECTION THAT HE SHALL DECIDE THE SAME AFRESH AFTER AFFORDING OPPORT UNITY TO THE ASSESSEE OF BEING HEARD. 2 ITA NO.142/KOL/2015 M/S. KAYCEE TRADING CO. A.YR.2007-08 2 THEREAFTER WE TAKE NOTE THAT THE IMPUGNED ASSESSMEN T ORDER HAS BEEN PASSED BY ITO- WARD-32(1), KOLKATA AFTER THE REMAND ORDER PASSED B Y THE TRIBUNAL. NOTICE U/S 143(2) AND 142(1) WAS ISSUED BY ITO-WD-32(1), KOLKATA AND ASSESSMENT WAS COMPLETED BY THE SAID ITO BY ORDER DATED 04.02.2013 WHICH WAS CHALLE NGED BY THE ASSESSEE BEFORE THE LD. CIT(A) WHEREIN THE ASSESSEE RAISED THE JURISDICTION OF ITO-WARD-32(1) WHICH WAS ALLOWED BY THE LD. CIT(A). THE ACTION OF THE LD.CIT (A)HAS BEEN CHALLENGED BY THE REVENUE BEFORE US. 4. NONE APPEARED ON BEHALF OF BOTH THE PARTIES . HOWEVER, AFTER GOING THROUGH THE RECORDS AND APPEAL FILED WE ARE OF THE OPINION THAT WE CAN DISPOSE OF THIS APPEAL WITH THE HELP OF THE RECORDS WHICH ARE BEFORE US. 5. WE HAVE GONE THROUGH THE RECORDS CAREFULLY A ND HAVE GONE THROUGH THE ORDERS PASSED BY THE AO AS WELL AS THE IMPUGNED ORDER OF L D.CIT(A). THE LD. CIT(A) HAS TAKEN NOTE OF THE FACT THAT THE CIT-11, KOLKATA U/S 124(4 )(B) OF THE ACT BY AN ORDER DATED 14.09.2009 BY WHICH HE ASSIGNED THE POWERS AND FUNC TIONS CONFERRED ON THE AO UNDER THE ACT OF THE ASSESSEES CASE TO ADDL. CIT,RANGE-3 2, KOLKATA. THE LD. CIT(A) ALSO TOOK NOTE OF THE FACT THAT THE ADDL.CIT, RANGE-32 WHILE PASSING THE ASSESSMENT ORDER DATED 31.12.2009 HAS SPECIFICALLY MENTIONED THE AFORESAID FACT THAT CIT-11, KOLKATA BY ORDER DATED 14.09.2009 HAS EMPOWERED HIM THE JURISDICTION TO PASS THE ASSESSMENT OF THE ASSESSEE FOR A.Y.2007-08. EMPOWERED WITH THE SAID O RDER OF THE CIT-11, KOLKATA, ONLY THE ADDL. CIT,RANGE-32 PASSED THE ASSESSMENT ORDER FOR A.Y.2007-08 IN THE CASE OF THE ASSESSEE BY ORDER DATED 31.12.2009. THEREAFTER THE LD. CIT(A) NOTICED THAT THERE WAS NOTHING ON RECORD TO SHOW THAT THE POWER TO ASSESS THE ASSESSEE FOR A.Y.2007-08 HAS BEEN WITHDRAWN FROM THE ADDL. CIT,RANGE-32 FOR A.Y. 2007-08. SINCE THERE WAS NO RECORD TO SUGGEST THAT THE CIT HAS WITHDRAWN THE JU RISDICTION OF THE ASSESSEE FOR THE A.Y.2007-08 FROM THE ADDL. CIT,RANGE-32 FOR THE ASS ESSMENT YEAR IN QUESTION, THE LD. CIT(A) CAME TO THE CONCLUSION THAT ITO-WD.32(1) CAN NOT USURP THE JURISDICTION WHEN IT 3 ITA NO.142/KOL/2015 M/S. KAYCEE TRADING CO. A.YR.2007-08 3 HAS BEEN TAKEN AWAY SPECIFICALLY FROM HIM I.E. ITO, WARD-32 AND ENTRUSTED IT TO THE ADDL. CIT, RANGE-32 BY CIT U/S 120 OF THE ACT. IN S UCH A SCENARIO, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A). FR OM A PERUSAL OF THE GROUNDS OF APPEAL WE DO NOT FIND THAT THE REVENUES GROUND DOES NOT S UGGEST IN ANY MANNER THAT THE CIT- XI, KOLKATA HAS WITHDRAWN THE ORDER ENTRUSTING THE JURISDICTION FROM THE ITO TO THE ADDL. CIT, RANGE-32. SO WITHOUT BEING DIVESTED THE JURISDICTION FROM ADDL.CIT,RANGE- 32 TO ASSESS THE ASSESSEE FOR A.Y.2007-08 AND GRANT HIM THE JURISDICTION BACK TO ITO, WARD-32(1), HE HAS NO JURISDICTION TO ASSESS THE AS SESSEE FOR A.Y.2007-08. SO WE DO NOT FIND ANY MERIT IN THE APPEAL PREFERRED BY THE REVEN UE. THEREFORE WE CONFIRM THE ORDER OF LD. CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 28.12.2016. SD/- SD/- [WASEEM AHMED] [ A.T.VARKEY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28.12.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. KAYCEE TRADING CO., 31, KOHINOOR BUILDING, 1 05, PARK STREET, KOLKATA-700016. 2. I.T.O., WARD-32(1), KOLKATA. . 3..CIT(A)-9, KOLKATA 4. CIT XI, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES 4 ITA NO.142/KOL/2015 M/S. KAYCEE TRADING CO. A.YR.2007-08 4