A.C.I.T, Cir-I, Asansol V. Subhamoy Mondal, Burdwan

ITA 1687/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4929 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 10-05-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 31-05-2013
• Court: TRIBUNAL
• Assessee Lawyers: ARVIND AGARWAL
• Keywords: Assessment record
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI WASE EM AHMED, AM] I.T.A NOS. 1687 & 168 8/KOL/2013 ASSESSMENT YEARS : 2004- 05 & 2005-06 A.C.I.T., CIRCLE-1, -VS.- SUDHAMOY MOND AL ASANSOL BURDWAN [PAN : AELPM0084P] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SALLONG YADEN, ADDL. CIT, SR.DR FOR THE RESPONDENT : SHRI ARVIND AGARWAL , ADVOCATE DATE OF HEARING : 10.05.2016. DATE OF PRONOUNCEMENT : 13.05.2016 ORDER PER N.V.VASUDEVAN, JM THESE ARE APPEALS BY THE REVENUE AGAINST TWO ORDER S BOTH DATED 14.03.2013 OF CIT(A)-ASANSOL RELATING TO AY 2004-05 AND 2005-06. 2. THE ASSESSEE IS AN INDIVIDUAL AND DERIVES IN COME FROM TRADING IN FOREIGN LIQUOR UNDER LICENSE ISSUED BY EXCISE AUTHORITIES. FOR A. YRS.2004-05 AND 2005-06, THE ASSESSEE FILED RETURN OF INCOME ON 31.10.2004 AND 3 1.10.2005 RESPECTIVELY. THE IMPUGNED ORDERS ARE SILENT WITH REGARD TO THE FATE OF THESE TWO RETURNS FILED BY THE ASSESSEE. IT APPEARS THAT THERE WAS A SURVEY U/S 13 3A OF THE INCOME TAX ACT, 1961 (ACT) CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE ON 27.04.2007. IN THE COURSE OF THE SURVEY SOME DOCUMENTS, PAPERS AND REGISTERS WERE IM POUNDED. NOTICE U/S 148 OF THE ACT DATED 17.07.2007 WAS ISSUED TO THE ASSESSEE. IN RESPONSE TO THE AFORESAID NOTICE THE ASSESSEE FILED A LETTER DATED 3 RD AUGUST, 2007 STATING THAT THE RETURN FILED ON 31.1 0.2004 2 ITA NOS.1687 & 1688/KOL/2013 SUDHAMOY MONDAL A.YRS.2004-05 & 2005-06 2 FOR A.Y.2004-05 AND THE RETURN FILED ON 31.10.2005 FOR A.Y.2005-06 MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE ISSUED U/S 1 48 OF THE ACT. THE ASSESSEE ALSO DEMANDED COPY OF THE REASONS RECORDED BEFORE ISSUIN G OF THE NOTICES U/S 148 OF THE ACT. THE REASONS RECORDED WERE NOT FURNISHED TO THE ASSE SSEE. A LETTER DATED 18.02.2008 WAS ALSO ADDRESSED BY THE ASSESSEE ASKING FOR THE REASO NS RECORDED BY THE AO BEFORE ISSUING OF NOTICES U/S 148 OF THE ACT. IN THE ORDER OF ASSE SSMENT PASSED BY THE AO U/S 148 OF THE ACT, FOR A.YRS. 2004-05 AND 2005-06, THE AO HAS OBS ERVED THAT NO ORDER SHEET ENTRY RELATING TO THE REASONS FOR ISSUING OF NOTICE U/S 1 48 OF THE ACT WAS AVAILABLE IN THE ASSESSMENT RECORDS. THEREFORE THE AO HAD INFORMED T HE ASSESSEE THAT THE BASIS OF ISSUING OF NOTICE U/S 148 OF THE ACT BY THE AO WAS IMPOUNDED DOCUMENTS AT THE TIME OF SURVEY AND THE STATEMENT OF THE ASSESSEE RECORDED I N THE COURSE OF SURVEY WHICH WERE TO THE EFFECT THAT THE LOOSE SHEET CONTAINED THE SALE FIGURES MADE BY THE ASSESSEE ON DIFFERENT DATES. THUS IT IS CLEAR FROM THE ORDERS O F ASSESSMENTS FOR BOTH THE ASSESSMENT YEARS THAT (A) THE REASONS RECORDED BEFORE ISSUE OF NOTICE U/S 148 OF THE ACT WERE NOT AVAILABLE IN THE RECORDS OF ASSESSMENTS; (B) THAT T HE ASSESSEE WAS NOT GIVEN COPY OF THE REASONS RECORDED BEFORE ISSUE OF NOTICE U/S 148 OF THE ACT. 3. THE AO THEREAFTER PROCEEDED TO FRAME THE ASSES SMENT U/S 148 READ WITH SEC.144 OF THE ACT I.E. THE BEST JUDGMENT ASSESSMENT. EVEN BEF ORE THE AO THE ASSESSEE HAD POINTED OUT THAT HIS OBJECTIONS TO THE VALIDITY OF INITIATI ON OF RE-ASSESSMENT PROCEEDINGS U/S 148 OF THE ACT HAD NOT BEEN CONSIDERED BY THE AO BY PAS SING A SPEAKING ORDER ON THE SAME. IN THE BEST JUDGMENT ASSESSMENT THE AO DETERMINED T HE TOTAL INCOME OF THE ASSESSEE DETERMINING THE TOTAL INCOME OF 47,76,217/- FOR A.Y .2004-05 AS AGAINST THE RETURNED TOTAL INCOME OF RS.4,71,227/- AND FOR A.Y.2005-06 T HE TOTAL INCOME DECLARED BY THE ASSESSEE WAS RS.4,54,863/-. THE TOTAL INCOME DETERM INED IN THE BEST JUDGMENT ASSESSMENT MU/S 144 OF THE ACT WAS RS.48,00,630/-. IN THE ASSESSMENTS COMPLETED THE AO ADDED THE LIABILITY SHOWN BY THE ASSESSEE AS UNE XPLAINED AND ALSO DISALLOWED EXPENSES CLAIMED BY THE ASSESSEE IN THE PROFIT AND LOSS ACCOUNT. 3 ITA NOS.1687 & 1688/KOL/2013 SUDHAMOY MONDAL A.YRS.2004-05 & 2005-06 3 4. AGGRIEVED BY THE AFORESAID ORDERS OF ASSESSME NT, THE ASSESSEE PREFERRED APPEALS BEFORE CIT(A). BEFORE CIT(A) THE ASSESSEE POINTED O UT THAT THE ORDER ASSESSMENTS FRAMED BY THE AO WITHOUT FURNISHING THE ASSESSEE CO PIES OF THE REASONS RECORDED IS NOT VALID IN LAW AND IN THIS REGARD PLACED RELIANCE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS VIDESH SANCHAR NIG AM LTD. 340 ITR 66 (BOM.) WHEREIN IT WAS HELD THAT IF THE AO DOES NOT PROVIDE REASONS WITHIN A REASONABLE TIME ON REQUEST FROM THE ASSESSEE THE RE-ASSESSMENT IS INVA LID. THE CIT(A) CALLED FOR A REMAND REPORT FROM THE AO ON THE AFORESAID OBJECTIONS BY T HE ASSESSEE. IN THE REMAND REPORT THE AO REPORTED THAT THE REASONS RECORDED ARE EITHER NO T AVAILABLE IN THE ASSESSMENT RECORDS OR HAVE BEEN MISPLACED. AFTER CONSIDERING THE AFORE SAID REMAND REPORT THE CIT(A) HELD AS FOLLOWS :- 6. I FIND THAT THE REASONS ARE NOT PROVIDED TO APP ELLANT ON REQUEST. DURING APPEAL PROCEEDINGS, REMAND REPORT WAS CALLED FOR FROM ASSE SSING OFFICER VIDE LETTER DT. 10.11.2010. REPLY WAS RECEIVED FROM ASSESSING OFFIC ER. ANOTHER LETTER SPECIFICALLY ASKING ASSESSING OFFICER TO INTIMATE REASON FOR ISSUE OF N OTICE U/S 148 WAS ISSUED ON 14.02.2013. A REPLY WAS RECEIVED ON 13.03.2013. IN BOTH THE LET TERS, IT WAS INFORMED THAT REASONS ARE NOT FOUND OR MISPLACED. 7. IN VIEW OF DECISIONS REFERRED TO IN PARA 4 ABOVE AND THE FACT THAT REASON FOR ISSUE OF NOTICE U/S 148 IS TO BE ESTABLISHED, I HAVE NO ALTE RNATIVE BUT TO DECLARE THE REASSESSMENT VOID AB INITIO. I ACCORDINGLY CANCEL THE ASSESSMENT ORDER. GROUNDS 1 TO 3 ARE ACCORDINGLY ALLOWED. 8. IN THE COURSE OF APPEAL A NOTICE NO. C.I.T. (A)/ ASIL2009-10/S.M.L79 DATED 17.04.2009 U/S 251 (2) FOR ENHANCEMENT OF INCOME WAS ISSUED. T HIS IS PENDING. AS I HAVE ANNULLED THE REASSESSMENT, NO ENHANCEMENT IS POSSIBLE. ACCORDING LY I DROP THE ENHANCEMENT PROCEEDINGS. 5. SIMILAR ORDER WAS PASSED IN BOTH THE ASSESSMENT YEARS BY CIT(A) AGAINST WHICH THE PRESENT APPEALS HAVE BEEN PREFERRED BY THE REVENUE. 4 ITA NOS.1687 & 1688/KOL/2013 SUDHAMOY MONDAL A.YRS.2004-05 & 2005-06 4 6. AGGRIEVED BY THE ORDERS OF THE CIT(A), THE REVE NUE HAS PREFERRED THE PRESENT APPEALS BEFORE THE TRIBUNAL. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR, WHO RELIED ON THE ORDER OF AO. THE LD. COUNSEL FOR THE ASSESSEE RELIE D ON THE ORDER OF CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS CLEAR FROM THE ORDER OF CIT(A) THAT REASONS FOR REOPENING THE ASSESSMENTS BEFORE ISSUE OF NOTICE U/S 148 OF THE ACT, WERE NOT RECORDED BY THE AO. THE REMAND REPORT OF THE AO FI LED BEFORE THE CIT(A) MAKES IT CLEAR THAT REASONS RECORDED WERE NOT AVAILABLE IN T HE RECORD OF ASSESSMENT. IT IS NOT THE CASE OF THE REVENUE BEFORE US THAT REASONS WERE IN FACT RECORDED BUT WERE MISPLACED. NO SUCH EVIDENCE OR CONTENTION WAS PUT FORTH NOR WAS C OPY OF REASONS RECORDED BEFORE ISSUE OF NOTICE U/S.148 OF THE ACT FURNISHED BEFORE THE T RIBUNAL. IN THE CIRCUMSTANCES ONE HAS TO PRESUME THAT REASONS FOR ISSUE OF NOTICE U/S.148 OF THE ACT WERE IN FACT NOT RECORDED. A READING OF THE PROVISION OF SECTION 147 AND 148 OF THE ACT SHOWS THAT THE PROCEEDINGS U/S 147 CAN BE RE-INITIATED TO BRING TO TAX INCOME WHICH IS CHARGEABLE TO TAX AND WHICH HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR. THE ABOVE PROVISIONS OF SECTION 147 ARE SUBJECTED TO THE PROVISIONS OF SECT ION 148 TO 153 OF THE ACT. THE PROVISION OF SECTION 148 OF THE ACT MANDATES THE AO TO SERVE A NOTICE ON THE ASSESSEE REQUIRING HIM TO FURNISH A RETURN OF INCOME BEFORE FRAMING THE ASSESSMENT. SECTION 148(2) OF THE ACT MANDATES BEFORE ISSUE NOTICE U/S 148 OF THE ACT AO HAS TO RECORD REASONS FOR ISSUE OF NOTICES U/S 147 OF THE ACT FOR INITIATING ASSESSMENT PROCEEDINGS TO BRING TO TAX INCOME WHICH IS CHARGEABLE TO TAX AND WHICH HAS ESCAPED ASSESSMENT. THE ABSENCE OF THE REASONS RECORDED IS VERY FATAL TO TH E VALIDITY OF THE PROCEEDINGS U/S 147 OF THE ACT. THE LAW IS WELL SETTLED THAT IN THE ABSENC E OF REASONS RECORDED BEFORE ISSUE OF NOTICE U/S.148 OF THE ACT FOR MAKING ASSESSMENT U/S .147 OF THE ACT, THE PROCEEDINGS U/S.147 OF THE ACT ARE INVALID AND ILLEGAL AND HAVE TO BE ANNULLED. THE CIT(A) HAS TAKEN NOTE OF THE REMAND REPORT OF THE AO IN WHICH THE RE VENUE HAS ADMITTED THAT THE REASONS RECORDED BEFORE ISSUING NOTICE U/S 148 OF THE ACT W ERE EITHER NOT RECORDED OR MISPLACED. IN THE ABSENCE OF COMPLIANCE OF THE REQUIREMENT OF SECTION 148(2) OF THE ACT WE ARE OF 5 ITA NOS.1687 & 1688/KOL/2013 SUDHAMOY MONDAL A.YRS.2004-05 & 2005-06 5 THE VIEW THAT THE PROCEEDINGS U/S 147 OF THE ACT WI LL HAVE TO BE HELD TO BE ILLEGAL AND NOT VALID IN THE EYE OF LAW. WE THEREFORE CONCUR WI TH THE VIEW OF THE CIT(A) THAT THE REASSESSMENT FOR BOTH THE ASSESSMENT YEARS ARE VOID AB INITIO. WE THEREFORE CONFIRM THE ORDER OF CIT(A) AND DISMISS BOTH THE APPEALS OF THE REVENUE. 8. IN THE RESULT THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 13.05.2016. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13.05.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.SUDHAMOY MONDAL, N.S.B.ROAD, RANIGANJ, DIST.BURDW AN, PIN:7133347. 2. A.C.I.T., CIRCLE-1, ASANSOL. 3. CIT(A)-ASANSOL 4. CIT-ASANSOL. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER A SSTT.REGISTRAR, ITAT, KOLKATA BENCHES 6 ITA NOS.1687 & 1688/KOL/2013 SUDHAMOY MONDAL A.YRS.2004-05 & 2005-06 6