DCIT, Circle - Gangtok, Sikkim V. Sikkim Democratic Front, Sikkim

ITA 1514/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48232 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 30-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A ROY
• Assessee Lawyers: J P KHAITAN
• Keywords: Assessment record

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . , ! '# '# '# '# /AND ' # , ! ) [BEFORE HONBLE SHRI S. V. MEHROTRA, AM & HONBLE S RI MAHAVIR SINGH, JM] #$ #$ #$ #$ / I.T.A NOS. 1514 TO 1516/KOL/2010 %& ''( %& ''( %& ''( %& ''(/ // / ASSESSMENT YEARS: 2004-05 TO 2006-07 DEPUTY COMMISSIONER OF INCOME-TAX, VS SIKKIM DEMO CRATIC FRONT CIRCLE-GANGTOK (PAN-AADAS 7356 K) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) & C.O. NOS.150 TO 152/KOL/2010 IN #$ #$ #$ #$ / I.T.A NOS. 1514 TO 1516/KOL/2010 %& ''( %& ''( %& ''( %& ''(/ // / ASSESSMENT YEARS: 2004-05 TO 2006-07 SIKKIM DEMOCRATIC FRONT VS. DEPUTY COMMISSIONER OF INCOME-TAX, (CROSS OBJECTOR) CIRCLE-GANGTOK. (RESPONDENT ) FOR THE REVENUE: SHRI A. ROY FOR THE ASSESSEE: SHRI J. P. KHAITAN . / ORDER PER BENCH : APPEALS BY REVENUE AND CROSS OBJECTIONS BY ASSESSEE ARE ARISING OUT OF THE COMMON ORDER OF CIT(A), SILIGURI IN APPEAL NO. 32, 37 & 38 /CIT(A)/SLG/09-10 VIDE DATED 30.04.2010. ASSESSMENTS WERE FRAMED BY DCIT, CIRCLE-GANGTOK FOR ASSESSMENT YEARS 2004-05 TO 2006-07 U/S. 143(3)/147 OF THE INCOME TAX ACT, 1961(HEREINA FTER REFERRED TO AS THE ACT) VIDE HIS ORDERS DATED 22.12.2009. FOR THE SAKE OF BREVITY AN D CLARITY, WE DISPOSE OF BOTH THESE APPEAL AND CROSS OBJECTIONS BY THIS CONSOLIDATED ORDER. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT CIT(A) HAS DEALT WITH THE ISSUE OF NON-DISPOSAL OF OBJECTIONS RAISED BY ASSES SEE IN RESPECT OF INITIATION OF PROCEEDINGS U/S. 147 R.W.S. 148 OF THE ACT BEFORE THE AO. WE FIND T HAT CIT(A) HAS ADJUDICATED THE ISSUE AND DECIDED, NON-DISPOSAL OF OBJECTIONS BY ASSESSING OF FICER FOR INITIATION OF PROCEEDINGS U/S. 147 R.W.S. 148 OF THE ACT, BY HOLDING IMPUGNED ASSESS MENT ORDERS AS BAD IN LAW. FOR THIS, CIT(A) RECORDED HIS OPINION, WHICH IS COMMON IN ALL APPELL ATE ORDERS, AS UNDER: SECONDLY, THE LD. A.O HAS NOT DISPOSED OF THE OBJE CTION RAISED BY THE ASSESSEE AFTER ISSUING THE NOTICES U/S. 148 OF THE ACT. THE ASSES SMENT ORDERS ARE SILENT ON THIS ISSUE. ON PERUSAL OF THE ASSESSMENT RECORDS, NO SUCH ORDER COULD BE TRACED. IN COURSE OF HEARING OF THE APPEAL, THE LD. A.O. ALSO CONFIRMED THE SAME. AFTER RECEIVED OF THE RETURNS, THE LD. A.O. PROCEEDED WITH THE RETURNS IS SUING NOTICES U/S. 142(2) OF THE ACT. THE LAW LAID DOWN BY THE APEX COURT IN GKN DRIVESHA FTS (INDIA) LTD. VS. ITO & ORS. (SUPRA), IS BINDING ON THE A.O. AND THE ASSESSMENT ORDER PASSED WITHOUT ANY OPPORTUNITY OF HEARING ON THE OBJECTIONS FILED BY T HE ASSESSEE AGAINST NOTICE U/S. 148 2 ITA 1514-1516/K/2010 & CO 150-152/K/2010 SIKKIM DEMOCRATIC FRONT A.Y.04-05-06-07 AND THE ASSESSMENT ORDER DO NOT DISCLOSED ANY DECIS ION ON THE OBJECTIONS, THE IMPUGNED ORDERS ARE CLEARLY AGAINST THE LAW LAID DOWN BY THE APEX COURT. THE A.O. IS DUTY BOUND TO DECIDE THE OBJECTION SEPARATELY. IN THIS CONNEC TION, THE LD. A.O. HAS CITED THE DECISION IN CASE OF AREVA T & D INDIA LTD. VS. ACIT 207 CTR 497 (MAD). BUT THE JURISDICTIONAL HIGH COURT AND ALSO A NUMBER OF SUBS EQUENT DECISIONS OF DIFFERENT OTHER COURTS MADE IT CLEAR THAT ASSESSMENT FRAMED WITHOUT DISPOSING OF THE PRELIMINARY OBJECTION RAISED BY THE ASSESSEE CANNOT BE SUSTAINE D. THEREFORE, IN VIEW OF THE DECISIONS CITED BY THE LD. AR OF THE ASSESSEE, THE ASSESSMENT ORDER PASSED BY THE LD. A.O. IS BAD IN LAW AND CANNOT BE SUSTAINED. 3. SINCE THE ISSUE OF NON-DISPOSAL OF OBJECTION BY ASSESSING OFFICER QUA INITIATION OF PROCEEDINGS U/S. 147 R.W.S. 148 OF THE ACT IS A PRO CEDURAL IRREGULARITY, WHICH CAN BE CURED, CIT(A) SHOULD NOT HAVE HELD ASSESSMENTS AS BAD IN L AW WITHOUT GIVING OPPORTUNITY TO ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THESE THREE APPEALS OF THE REVENUE AND THREE CROSS OBJECTIONS RAISED BY ASSESSEE TO DECIDE THE P RELIMINARY ISSUE OF OBJECTIONS RAISED BY ASSESSEE QUA INITIATION OF PROCEEDINGS U/S. 147 R.W .S. 148 OF THE ACT IN TERMS OF RATIO LAID DOWN BY HONBLE APEX COURT IN THE CASE OF GKN DRIVESHAFT S (INDIA) LTD. VS. ITO (2003) 259 ITR 19 (SC), WHEREIN IT IS HELD THAT WHEN A NOTICE U/S. 148 OF THE ACT IS ISSUED, PROPER COURSE OF ACTION FOR THE NOTICEE IS TO FILE A RETURN OF INCOM E IN RESPONSE TO THE NOTICE AND IF HE SO DESIRES TO SEEK REASONS FOR ISSUING NOTICE, ASSESSING OFFI CER IN TURN IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, ASSESSEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE PRESENT CASE BEFORE US, ADMITTED FACTS ARE THAT NO ORDER IS PASSED BY ASSESSING OFFICER ON THE OBJECTIONS RAISED BY ASSESSEE. HENCE, WE SET A SIDE THIS ISSUE TO THE FILE OF ASSESSING OFFICER TO DECIDE THE OBJECTIONS OF THE ASSESSEE FIRST AS P ER PROVISIONS OF LAW AND ALSO IN TERMS OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF GKN D RIVESHAFTS (INDIA) LTD. (SUPRA), WITHOUT BEING INFLUENCED BY THE OPINION OF CIT(A) IN THE AP PELLATE ORDER. AFTER DECIDING THE ISSUE ON LEGAL GROUNDS, ASSESSING OFFICER WILL ALSO DECIDE M ERITS OF THE CASE. 4. IN THE RESULT, APPEALS FILED BY THE REVENUE AS W ELL AS CROSS OBJECTIONS OF THE ASSESSEE ARE SET ASIDE AND ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . . , ! ' '' ' # # # # , ! (S. V. MEHROTRA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( / / / /) )) ) DATED 29TH JUNE, 2011 3 ITA 1514-1516/K/2010 & CO 150-152/K/2010 SIKKIM DEMOCRATIC FRONT A.Y.04-05-06-07 '01 %23 4' JD.(SR.P.S.) . 5 ,6 76'8- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT DCIT, CIRCLE-GANGTOK 2 ,-*+ / RESPONDENT- SIKKIM DEMOCRATIC FRONT, INDIRA BYPAS S, TADONG, SIKKIM 3 . .% ( )/ THE CIT(A), SILIGURI. 4. .% / CIT, SILIGURI 5 . '> ,% / DR, KOLKATA BENCHES, KOLKATA -6 ,/ TRUE COPY, .%?/ BY ORDER, #3 /ASSTT. REGISTRAR .