ITO, Ward - 3(1), Kolkata V. M/s. Quito Exim Limited, Kolkata

ITA 1527/KOL/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7966 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 1998-1999
• Appeal Filed On: 07-08-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Assessee Lawyers: A K BANERJEEAR
• Keywords: Principle of natural justice; Assessment record; Reassessment proceedings
• Section: 147; 15

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH - C , KOLKATA ( ) BEFORE . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . . , , SHRI B.C.MEENA, ACCOUNTAN T MEMBER. /ITA NO. 1527 AND 1528 /KOL/2008 / ASSESSMENT YEAR S 1998 - 99 AND 1999 - 2000 INCOME - TAX OFFICER, WARD 3(1), KOLKATA. - - - VERSUS - . M/S. QUITO EXIM LIMITED. 307, AJIT SEN BHAWEAN, 3 RD FLOOR, 13, CROOKED LANE, KOLKATA 700 069 AAACQ 0607 N ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT: / SMT. JYOTI KUMARI, DR / FOR THE RESPONDENT : / SHRI A.K.BANERJEE,AR / ORDER . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. THE DEPARTMENT HAS FILED THESE TWO APPEALS FOR THE AYS 1998 - 99 AND 1999 - 2000 AGAINST ORDERS OF THE LEARNED CIT(A) BOTH DATED THE 2 ND JUNE, 2008 ON COMMON GROUNDS, WHICH ARE AS UNDER : 1. THAT IN THE FACTS AND THE CIRC UMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN HOLDING THAT INITIATION OF PROCEEDINGS U/S 147 WAS INVALID, MERELY BECAUSE THE AO HAD NOT MENTIONED ON THE BODY OF THE ORDER THAT HE HAD RECORDED REASONS FOR SUCH INITIATION AS WELL AS OBTA INED APPROVAL OF THE JCIT/ADDL.CIT PRIOR TO INITIATION OF PROCEEDINGS AS STATUTORILY REQUIRED U/S 15 1 (1). 2. THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A)S DECISION MADE WITHOUT A REFERENCE TO THE ASSESSMENT RECORDS OR OFFERING AU AN OPPORTUNITY IS PRESUMPTUOUS, NOT BASED ON FACTS, AND THEREFORE PERVERSE. 3. THAT THE DECISION OF THE LD CIT(A) BE REVERSED AND AOS ORDER BE UPHELD. 2 /ITA NO. 1527 AND 1528 /KOL/2008 4. THAT THE LD CIT HAS NOT GIVEN A COPY OF NOTICE OF HEARING U/S 250(1) TO THE A O , THEREFORE THE ORD ER OF C I T(A) SUFFERS INFIRMITY OF LACK OF NATURAL JUSTICE, ON WHICH GROUND THE SAME DESERVES TO BE SET ASIDE. 5. THAT LEAVE MAY BE GRANTED TO ADD, ALTER OR MODIFY ANY GROUND AS MAY ARISE IN THE COURSE OF APPELLATE PROCEEDINGS. 2. WE HAVE HEARD THE LEAR NED REPRESENTATIVES OF THE PARTIES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW. 3. WE OBSERVE THAT THE ASSESSEE FILED THE RETURNS FOR BOTH THE AYS UNDER CONSIDERATION. THE RETURNS WERE PROCESSED/S.143(1) OF THE INCOME - TAXACT,1961. SUBSEQUENTLY TH E ASSESSING OFFICER INITIATED REASSESSMENT PROCEEDINGS U/S.147 OF THE ACT AND SERVED NOTICE U/S.148 OF THE ACT. THE ASSESSING OFFICER COMPLETED THE ASSESSMENTS FOR BOTH THE AYS BY SEPARATE ASSESSMENT ORDERS PASSED U/S.143(3)/147 OF THE ACT BOTH DT.17.3.200 6. THE ASSESSEE FILED APPEALS BEFORE THE FIRST APPELLATE AUTHORITY AND CONTENDED THAT THE REASSESSMENT PROCEEDINGS WERE INITIATED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR (S).THEREFORE, THE AO ,U/S.151(2 OF THE ACT, HAD T O TAKE APPROVAL FROM, THE JOINT COMMISSIONER OF INCOME - TAX TO THE EFFECT THAT THE REASONS RECORDED BY THE ASSESSING OFFICER WERE SUCH THAT HE IS SATISFIED THAT THIS IS A FIT CASE FOR ISSUANCE OF NOTICE U/S.148 OF THE ACT. THE LEARNED CIT(A) QUASHED THE ASS ESSMENTS FOR BOTH THE AYS UNDER CONSIDERATION ON THE GROUND THAT THE ASSESSING OFFICER, WHO IS BELOW THE RANK OF JCIT AND HAD ALSO INITIATED REASSESSMENT PROCEEDINGS AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR(S) , HAD NOT OB TAINED REQUISITE APPROVAL FROM THE JCIT AND THEREFORE, THE ASSESSING OFFICER ACTED BEYOND HIS JURISDICTION AND OUT OF THE PRESCRIBED PROCEDURE. 4. AT THE TIME OF HEARING OF THESE APPEALS, THE LEARNED DR FILED THE COPIES OF THE REASONS RECORDED BY THE ASSE SSING OFFICER FOR BOTH THE AYS UNDER CONSIDERATION AND ALSO THE APPROVE OF THE ADDITIONAL COMMISSIONER OF INCOME - TAX BOTH DT.6.9.2004 TO THE EFFECT THAT HE IS SATISFIED ON PERUSAL OF THE REASONS RECORDED 3 /ITA NO. 1527 AND 1528 /KOL/2008 BY THE ASSESSING OFFICER THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND CONSEQUENTLY THERE IS A FIT CASE FOR ISSUANCE OF NOTICE U/S.148 OF THE ACT. THE COPIES OF THE SAID NOTES RECORDED BY THE AO AS WELL AS ACIT ARE PLACED ON RECORD. THE COPIES WERE ALSO GIVEN TO THE LEARNED AR OF THE ASSESSEE FO R HIS PERUSAL. THE LEARNED AR OF THE ASSESSEE HAS NOT DISPUTED THE ABOVE CONTENTION OF THE LEARNED DR. 5. IN VIEW OF THE ABOVE FACTS, WE HOLD THAT THE IMPUGNED ORDERS OF THE LEARNED CIT(A) ARE NOT VALID AND THEREFORE, THE ORDERS PASSED BY HIM FOR QUASHING THE INITIATION OF REASSESSMENT PROCEEDINGS ARE VACATED. SINCE THE LEARNED CIT(A) HAS NOT DECIDED THE APPEALS OF THE ASSESSEE ON MERITS, WE RESTORE THE MATTER TO HIS FILE WITH A DIRECTION THAT THE LEARNED CIT(A) WILL DECIDE THE APPEALS OF THE ASSESSEE ON M ERITS FOR BOTH THE AYS UNDER CONSIDERATION AFTER CONSIDERING SUCH EVIDENCE AS MAY BE FILED BEFORE HIM AND AFTER GIVING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. 6. IN THE RESULT, BOTH THE APPEALS OF THE DEPARTMENT ARE ALLOWED AS INDICATED ABOVE. THIS ORDER IS PRONOUNCED IN OPEN COURT IN PRESENCE OF BOTH THE PARTIES ON DT. 16.3.2010 . SD/ - SD/ - ( . . ) , , (B.C.MEENA), ACCOUNTANT MEMBER. ( . . ), B.R.MITTAL, JUDICIAL MEMBER ( ) DATE: ( /H.K.PADHEE) / SNR.PRIVATE SECRETARY. 4 /ITA NO. 1527 AND 1528 /KOL/2008 - COPY OF THE ORDER FORWARDED TO: 1. / THE APPELLANT : INCOME - TAX OFFICER, WARD 3(1), KOLKATA. 2 / THE RESPONDENT : M/S. QUITO EXIM LIMITED. 307, AJIT SEN BHAWEAN, 3 RD FLOOR, 13, CROOKED LANE, KOLKATA 700 069 3. / THE CIT, 4. ( ) / THE CIT(A), 5. / DR, KOL KATA BENCHES, KOLKATA 6. GUARD FILE . / TRUE COPY , / BY ORDER , / DEPUTY REGISTRAR .