ITO, Ward - 5(3), Kolkata V. M/s. B.H.P. India Pvt. Ltd., Kolkata

ITA 1431/KOL/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9363 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2011
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 27-01-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 25-07-2008
• Court: TRIBUNAL
• Department Lawyers: B R PURAKAYASTHA
• Assessee Lawyers: CROSS OBJECTOR SRI K L BOTH RA
• Keywords: Reopening of assessment; Opportunity of being heard; Audit objection; Principle of natural justice
• Section: 147; 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH : KOLKATA () BEFORE . . . . . . . . , , , , , !' !' !' !' /AND . .. . . .. .! !! ! , # ) [BEFORE HONBLE SRI D. K. TYAGI, JM & HONBLE SRI C . D. RAO, AM] '$ '$ '$ '$ / I.T.A NO. 1431/KOL/2008 %&' !() %&' !() %&' !() %&' !()/ // / ASSESSMENT YEAR : 2003-04 INCOME-TAX OFFICER, WD-5(3), KOLKATA VS. M/S. B .H.P. INDIA PVT. LTD. (PA NO. AABCB 3785 B) ( +, /APPELLANT ) (-+,/ RESPONDENT ) & C.O. NO. 101/KOL/2008 IN '$ '$ '$ '$ / I.T.A NO. 1431 /KOL/2008 %&' !() %&' !() %&' !() %&' !()/ // / ASSESSMENT YEAR : 2003-04 M/S. B.H.P. INDIA PVT. LTD. VS. INCOME-TAX OFFI CER, WD-5(3), KOLKATA. (CROSS OBJECTOR) (-+,/ RESPONDENT ) FOR THE REVENUE/APPELLANT : SRI B. R. PURAKAYAST HA FOR THE ASSESSEE/CROSS OBJECTOR : SRI K. L. BOTH RA . / ORDER PER D. K. TYAGI, JM ( . . . . . . . . , , , , ) THE APPEAL AND THE CROSS OBJECTION FILED BY THE REV ENUE AND THE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) , KOLKATA DATED 10.06.2008 FOR ASSESSMENT YEAR 2003-04. BOTH THE APPEAL AND THE C ROSS OBJECTION ARE DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 2. SINCE JURISDICTIONAL ASPECT IS INVOLVED, WE HAVE DECIDED TO DISPOSE OF THE ASSESSEES CROSS OBJECTION FIRST. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS CROSS OBJECTION : 1. THAT THE LD. CIT(A) ERRED IN NOT DISCUSSING THE GROUND ABOUT REOPENING THE ASSESSMENT U/S. 147 ON THE ALLEGED GROUND THAT THE SAME IS NOT PRESSED IN ORAL 2 ARGUMENTS WHEREAS THE SAME HAS BEEN PRESSED IN WRIT TEN ARGUMENTS AND ALSO IN WRITTEN GROUNDS. 2. THAT THE REOPENING OF ASSESSMENT U/S. 147 AND NO TICE U/S. 148 IS BAD IN LAW AND VOID AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS NO REASONABLE OPPORTUNITY HAS BEEN GIVEN TO THE APPELLANT TO REBUT THE DEPARTMENTS AUDIT NO TE ON THE BASIS OF WHICH AN ADDITION OF RS.77,48,872/- HAS BEEN MADE IN THE ASSESSMENT O RDER. 3. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L OF THE ASSESSEE SUBMITTED THAT ALL THE FACTS AND FIGURES WERE FULLY DISCLOSED IN T HE ORIGINAL INCOME TAX RETURN, THEREFORE, NOTICE ISSUED U/S. 148 AND REOPENING OF THE CASE U/ S. 147 WAS BAD IN LAW AND HENCE VOID AB INITIO. FOR MAKING THIS SUBMISSION HE PLACED RE LIANCE ON THE DECISION OF CIT VS. ATUL JAIN REPORTED IN 299 ITR 383 AND CIT VS. ANUPA M KAPUR REPORTED IN 299 ITR 179 WHEREIN IT WAS HELD THAT THE ASSESSING OFFICER SHOU LD VERIFY CORRECTNESS OF INFORMATION RECEIVED BY HIM AND NOT MERELY ACCEPT THE VAGUE IN FORMATION IN A MECHANICAL MANNER. AN AUDIT OBJECTION BY ITSELF CANNOT JUSTIFY NOTICE OF REASSESSMENT, WHEN THERE IS NO APPLICATION OF MIND ON THE PART OF ASSESSING OFFICE R. FOR THIS SUBMISSION, HE PLACED RELIANCE ON THE DECISION OF TRANSWORLD INTERNATIONA L VS. JCIT REPORTED IN 273 ITR 142. HE FURTHER SUBMITTED THAT THE SUBMISSIONS MADE BY T HE ASSESSEES COUNSEL DATED 19.11.2007 WERE NOT VERIFIED AND THE ORDER WAS PASS ED WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND AS SUCH THE ORDER PASSED IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. HE, THEREFORE, PRAYE D THAT THE CASE MAY KINDLY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDIC ATION IN THE LIGHT OF THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE HIM. THE LD. DR DID NO T RAISE ANY SERIOUS OBJECTION TO THIS PRAYER OF THE LD. COUNSEL FOR THE ASSESSEE. IN VIEW OF THE ABOVE AND AFTER SETTING ASIDE THE ORDERS OF THE LOWER AUTHORITIES, THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER TAKING INTO CO NSIDERATION THE SUBMISSIONS AND THE CASE LAWS RELIED ON BY THE ASSESSEE AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE CROSS OBJECTION FILED BY THE A SSESSEE IS, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. 4. SINCE WE HAVE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORED THE ISSUE IN RESPECT OF REOPENING PROCEEDINGS U/S. 147 OF THE I. T. ACT, RAISED BY THE ASSESSEE IN ITS 3 CROSS OBJECTION, THE APPEAL FILED BY THE REVENUE IS ALSO RESTORED TO THE ASSESSING OFFICER FOR CONSIDERING AFRESH. 5. IN THE RESULT, BOTH THE APPEAL AND THE CROSS OBJ ECTION ARE ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.1.20 11 SD/- SD/- . . ! , # . . , (C. D. RAO) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER ( # # # #) )) ) DATED : 31 ST JANUARY, 2011 !/0 %&12 %3! JD.(SR.P.S.) . 4 -%%5 65(7- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT ITO, WARD-5(3), KOLKATA 2 -+, / RESPONDENT, M/S. B.H.P. INDIA PVT. LTD., 2, CLIVE GHAT STREET, KOLKATA-700 001. 3 . %.& / THE CIT, KOLKATA. 4. %.& ( )/ THE CIT(A), KOLKATA. 5 . !=% -%& / DR, KOLKATA BENCHES, KOLKATA 5 -%/ TRUE COPY, .&>/ BY ORDER, ? '2 /DEPUTY REGISTRAR .