Sri Bikramjit Paul, Uttar Dinajpur V. DCIT, Cir-II, Jalpaiguri, Jalpaiguri

ITA 1466/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9320 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-07-2016
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: MIHIR BANDYOPADHYAY
• Keywords: Reopening of assessment; Reassessment proceedings
• Section: 143(3); 148

Judgement Text

I.T.A. NO. 1466/KOL./2016 ASSESSMENT YEAR: 2010-2011 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER I.T.A. NO. 1466/KOL/ 2016 ASSESSMENT YEAR : 2010-2011 SRI BIKRAMJIT PAUL,................................ .................APPELLANT NETAJI PALLY, P.O. RAIGANJ, DIST. UTTAR DINAJPUR-733 134 [PAN : ARWPP 2155 N] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,............... ..........RESPONDENT CIRCLE-II, JALPAIGURI, C.R. BUILDING, NAYABASTI, DIST. JALPAIGURI-735 101 APPEARANCES BY: SHRI MIHIR BANDYOPADHYAY, A.R., FOR THE ASSESSEE MD. GHAYAS UDDIN, JCIT, SR. D.R., FOR THE DEPARTMEN T DATE OF CONCLUDING THE HEARING : JANUARY 30, 2017 DATE OF PRONOUNCING THE ORDER : MARCH 1 ST , 2017 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGUR I DATED 05.05.2016 FOR THE ASSESSMENT YEAR 2010-11. 2. THE UNDISPUTED FACT IN THIS APPEAL IS THAT THE A SSESSEE HAS NOT RECEIVED THE COPY OF THE REASONS RECORDED FOR REOPE NING THE ASSESSMENT, DESPITE REQUEST FOR THE SAME FROM THE ASSESSING OFF ICER. THE ISSUE RAISED IS WHETHER SUCH NON-FURNISHING OF THE REASONS FOR R EOPENING, AFTER THE I.T.A. NO. 1466/KOL./2016 ASSESSMENT YEAR: 2010-2011 PAGE 2 OF 3 SPECIFIC REQUEST FOR THE SAME IS MADE BY THE ASSESS EE TO THE ASSESSING OFFICER, VITIATES THE REOPENING OF ASSESSMENT. 3. IN THE CASE OF CIT V. VIDESH SANCHAR NIGAM LTD. (2012) 340 ITR 66 (BOM.) THE TRIBUNAL FOLLOWING THE JUDGMENT OF BOMBA Y HIGH COURT IN CIT V. FOMENTO RESORTS AND HOTELS LTD. ITA NO 71 OF 200 6 DATED 27TH NOVEMBER, 2006, HAS HELD THAT THOUGH THE REOPENING OF ASSESSMENT WAS WITHIN THREE YEARS FROM THE END OF RELEVANT ASSESSM ENT YEAR, SINCE THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT WE RE NOT FURNISHED TO THE ASSESSEE TILL DATE THE COMPLETION OF ASSESSMENT , THE REASSESSMENT ORDER CANNOT BE UPHELD, MOREOVER, SPECIAL LEAVE PET ITION FILED BY REVENUE AGAINST THE DECISION OF THIS COURT IN THE CASE OF C IT V. FOMENTO RESORTS AND HOTELS LTD., HAS BEEN DISMISSED BY APEX COURT, VIDE ORDER DATED JULY 16,2007. THE MUMBAI ITAT FOLLOWED THE ABOVE DECISIO N AND QUASHED THE REASSESSMENT PROCEEDINGS IN THE FOLLOWING CASES: TATA INTERNATIONAL LTD. V. DY. CIT (2012) 52 SOT 465 (MUM.) TELCO DADAJEE DHAKJEE LTD. V. DCLT (MUM.) (TM) - ITATONLINE.ORG MULLER & PHI LIPS (I NDIA) LTD. V. ITO (MUM.}(TRIB.); WWW.ITATONLINE.ORG JEEVANLAL JAIN ITA NO. 910/M/2014 DT 13-1-2016, BENCH J; (MUM.) (TRIB.). 4. THE LD. D.R. RELIED ON THE DECISION OF THE DELHI A BENCH OF THE TRIBUNAL IN THE CASE OF ITO, WARD-11(6), NEW DELHI VS.- SMT. GURINDER KAUR [2006] 102 ITD 189 (DELHI) AND ARGUED THAT WHE RE THE ASSESSEE WAS AWARE OF REASONS FOR REOPENING THE ASSESSMENT, NON- COMMUNICATION OF REASONS WOULD NOT BE FATAL TO THE VALIDITY OF REASS ESSMENT PROCEEDINGS. THE PROPOSITION LAID DOWN IN THIS CASE DOES NOT APP LY TO THE FACTS OF THE CASE ON HAND FOR THE REASONS THAT, IT CANNOT BE SAI D THAT THE ASSESSEE IN THIS CASE WAS AWARE OF THE REASONS FOR REOPENING OF ASSESSMENT. IN ANY EVENT, I AM BOUND TO FOLLOW THE JUDGMENT OF THE HON BLE BOMBAY HIGH COURT IN PREFERENCE TO THE JUDGMENT OF DIVISION BEN CH OF DELHI TRIBUNAL. 5. IN VIEW OF THE ABOVE DISCUSSION, AS THE REASONS FOR REOPENING OF ASSESSMENT HAVE NOT BEEN FURNISHED BY THE ASSESSEE DESPITE REQUEST FOR I.T.A. NO. 1466/KOL./2016 ASSESSMENT YEAR: 2010-2011 PAGE 3 OF 3 THE SAME, THE ASSESSMENT ORDER PASSED UNDER SECTION 148 READ WITH SECTION 143(3) IS QUASHED AS ILLEGAL. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST MARCH, 2017. SD/- J. SUDHAKAR REDDY (ACCOUNTANT MEMBER) KOLKATA, THE 1 ST DAY OF MARCH, 2017 COPIES TO : (1) SRI BIKRAMJIT PAUL, NETAJI PALLY, P.O. RAIGANJ, DIST. UTTAR DINAJPUR-733 134 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-II, JALPAIGURI, C.R. BUILDING, NAYABASTI, DIST. JALPAIGURI-735 101 (3) COMMISSIONER OF INCOME-TAX (APPEALS), JALPAIG URI (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.