ITO,Ward-3(1), Kolkata, Kolkata V. M/s SPBP Tea Plantations Ltd., Kolkata

ITA 1435/KOL/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3182 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 08-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY MUKHERJEE J
• Assessee Lawyers: S JHAJHARIA
• Keywords: Validity of assessment; Reassessment proceedings
• Section: 143(3); 147; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.1435/KOL/2012 ASSESSMENT YEAR:2005-06 ITO WARD-3(1), 8/2, ESPLANADE EAST, DWARLI HOUSE, GR. FLOOR, KOLKATA 700 069 / V/S . M/S SPBP TEA PLANTATIONS LTD., 1, CROOKED LANE, KOLKATA-700 069 [ PAN NO.AACCP 0722 L ] /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SANJAY MUKHERJEE, JCIT-DR /BY RESPONDENT SHRI S. JHAJHARIA, FCA /DATE OF HEARING 05-01-2016 /DATE OF PRONOUNCEMENT 10-02-2016 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS IS AN APPEAL BY THE REVENUE IS ARISING OUT OF ORDER NO.166/CIT(A)-I/WD- 3(1)/10-11 DATED 05.07.2012 OF COMMISSIONER OF INCO ME-TAX (APPEALS)-I, KOLKATA. ASSESSMENT WAS FRAMED BY ITO WARD-3(1) U/S 143(3) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 13.12.2007 FOR ASSESSMENT YEARS 2005-06. ASSESSEE HAS RAISED THE FOLLOWING GR OUNDS:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS BY ALLOWING THE APPEAL OF THE ASSESSEE COMPANY THAT PROCEEDINGS U/S. 147 IN THIS CASE IS INVALID AND INFRUCTUOUS. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S BY ALLOWING THE APPEAL OF THE ASSESSEE COMPANY AND BY DELETING THE ADDITION OF RS .13,90,751/- UNDER THE HEAD EXCISE DUTY AND CESS. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S BY ALLOWING THE APPEAL OF THE ASSESSEE COMPANY THAT INVOKING OF SEC 41(1)(B) READ WITH EXPLANATION 2(IV) BY THE AO IS NOT APPLICABLE AND THEREBY DELETING THE ADDITION OF RS.1,04,81,934/- ITA NO.1435/KOL/2012 A.Y.2005- 06 ITO WD-3(1), KOL. V. M/S SPBP TEA PLANTATI NS LTD. P AGE 2 SHRI S. JHAJHARIA, LD. AUTHORIZED REPRESENTATIVE AP PEARING ON BEHALF OF ASSESSEE AND SHRI SANJAY MUKHERJEE, LD. DEPARTMENTAL REPRESENTAT IVE APPEARING ON BEHALF OF REVENUE. 2. AT THE TIME OF HEARING LD. DR HAS NOT PRESSED GR OUND NO. 2, HENCE, SAME IS DISMISSED AS NOT PRESSED. 3. COMING TO GROUND NO.1 RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN LAW AND FACT BY HOLDING THE PROCEEDINGS U/ S. 147 OF THE ACT INVALID AND INFRUCTUS. 4. AT THE OUTSET, IT WAS OBSERVED THAT ASSESSEE HAS CHALLENGED THE LEGALITY AND VALIDITY OF ASSESSMENT FRAMED U/S. 147 OF THE ACT O N THE GROUND THAT NO REASONS FOR REOPENING WHATSOEVER HAS BEEN COMMUNICATED TO ASSES SEE. LD. AR FURTHER SUBMITTED THAT SEVERAL REQUESTS FOR THE REASONS FOR THE REOPE NING THE ASSESSMENT U/S 147 OF THE ACT WAS MADE BUT NO DETAILS WERE SUBMITTED BY AO. W E ALSO FIND THAT LD. DR ALSO FAILED TO BRING ANYTHING ON RECORD TO CONTROVERT TH E ARGUMENT MADE BY AO AND ALSO THE FINDING OF LD. CIT(A). 5. WE HAVE HEARD THE RIVAL PARTIES AND PERUSED THE MATERIALS ON RECORD. LD. AR HAS SUBMITTED PAPER BOOK WHICH IS RUNNING FROM PAGE 1 TO 87. IN THE INSTANT CASE, WE FIND THAT AO WAS BOUND TO FURNISH THE REASONS FOR R EOPENING THE ASSESSMENT U/S 147 OF THE ACT BUT HE FAILED TO DO SO. WE HAVE ALSO FOUND FROM THE ORDERS OF THE HONBLE COURT WHEREIN THE REASSESSMENT PROCEEDINGS HAVE BEE N QUASHED FOR NON FURNISHING OF THE REASONS FOR REOPENING OF THE CASE. ON THE SAME LINES WE ARE RELYING IN THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF M/S ALLANA COLD STORAGE LTD. V. ITO (2006) 206 CTR 401 (BOM) IN WHICH IT WAS VERY CLEAR LY HELD THAT IF OBJECTION PETITION FILED IS NOT DISPOSED OFF BEFORE COMPLETING THE ASS ESSMENT U/S/. 147 OF THE ACT, THE ENTIRE ORDER IS BAD, ILLEGAL AND VOID AB-INITIO FOR YOUR KIND REFERENCE A GIST OF THE DECISION IS REPRODUCED HEREWITH: IN THE CASE OF YOU R PETITIONER, NO REASONS WERE AT ALL COMMUNICATED AND HENCE YOUR PETITIONER HAD NO OPPOR TUNITY TO FILE OBJECTION. ITA NO.1435/KOL/2012 A.Y.2005- 06 ITO WD-3(1), KOL. V. M/S SPBP TEA PLANTATI NS LTD. P AGE 3 THE LAW LAID DOWN BY THE HON'BLE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. VS. ITO [2003] 259 ITR 19 IS THAT WHEN A NOTIC E UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961, IS ISSUED, THE NOTICE IS EXPE CTED TO FILE A RETURN AND IF HE SO DESIRES HE MAY SEEK REASONS FOR ISSUING THE NOTI CE, THE HON'BLE SUPREME COURT HAS LAID DOWN THAT ON THE ASSESSEE SEEKING SU CH REASON, THE ASSESSING OFFICER IS BOUND TO FURNISH THE REASONS WITHIN A RE ASONABLE TIME FROM THE ABOVE DECISION OF HON'BLE BOMBAY HIGH COUR T IN THE CASE OF M/S ALLANA COLD STORAGE LTD. (SUPRA) WE FIND THAT IT IS THE MANDATORY DUTY OF THE ASSESSING OFFICER TO FURNISH THE REASONS IN REGARD TO REOPENI NG THE ASSESSMENT U/S. 147 OF THE ACT AND IN THIS GROUND AO FAILED TO PROVIDE THE REASONS TO ASSESSEE. IN THIS VIEW OF THIS MATTER THE APPEAL IS NOT MAINTAINABLE IN THE EYE OF LAW ACCORDINGLY, WE DISMISS THE APPEAL OF REVENUE. 6. SINCE THE APPEAL OF REVENUE IS NOT MAINTAINABLE IN THE EYE OF LAW ON THE GROUND OF INVALID ASSESSMENT ORDER PASSED BY ASSESS ING OFFICER U/S 147 OF THE ACT, HENCE THE OTHER GROUND DOES NOT REQUIRE TO BE ADJUD ICATED. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 10/0 2/2016 SD/- S D/- (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, *DKP ! - 10/02/2016 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-3(1), 8/2, ESPLANADE EAST, DWAR LI HOUSE, GR. FLOOR, KOLKATA-69 2. /RESPONDENT- M/S SPBP TEA PLANTATINOS LTD., 1, CROOKE D LANE, KOL-69 3. '# % / CONCERNED CIT 4. % - / CIT (A) 5. &'( ))'# , '# / DR, ITAT, KOLKATA 6. (*+ / GUARD FILE. BY ORDE R/ , /TRUE COPY/ / '#,