CHATURBHUJ BATRA, MUMBAI V. ASST CIT CEN CIR 3(2), MUMBAI

ITA 1883/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3753 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 17-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: A K GHOSH
• Section: 147; 143(3)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN, JM & HONBLE SH. N. K. PRADHAN, AM ./ I.T.A. NO . 1883 /MUM/2017 ( / ASSESSMENT YEAR: 2011 - 12 ) CHATURBHUJ BATRA, 302, 3 RD FLOOR, PINNACEL TOWER, 9 TH ROAD, TPS - 3, KHAR(W), MUMBAI - 400 052 / VS. DCIT CC - 3(2), NOW DCIT CC - 5(4), AIR INDIA BUILDING, MUMBAI - 400 021 ./ ./ PAN NO. A ABPB3512F ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI A. K. GHOSH, AR / RESPONDENTBY : SHRI ABI RAMA KARTHIKEYAN, DR / DATE OF HEARING : 13 . 02.2019 / DATE OF PRONOUNCEMENT : 14.02.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 51 , MUMBAI DATED 20.12.16 F OR AY 2011 - 12 . 2 I.T.A. NO. 1883 /MUM/201 7 CHATURBHUJ BATRA 2. AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE DRAWN OUR ATTENTION TO GROUND NO. 1 TO 3 OF THE APPEAL, WHEREIN THE ASSESSEE HAS SPECIFICALLY RAISED A GROUND THAT AO HAD NOT PROVIDED REASON FOR REOPENING THE ASSESSMENT U/S 147 OF THE ACT A ND HAS NOT EVEN SPELLED OUT THE SAME IN THE IMPUGNED ORDER. 3. AS PER THE PROVISIONS OF SECTION 148(2) OF THE ACT, THE AO SHALL BEFORE ISSUING ANY NOTICE UNDER THIS SECTION, RECORD HIS REASONS FOR DOING SO. THE VERY PURPORT OF THE ACT IS TO ENSURE THAT T HE ASSESSING OFFICER ARE ACTING WITH REASONS AND JUDICIOUSLY. THE STATUTE PROVIDES THAT THE AO SHOULD RECORD THE REASONS ONLY WITH AN OBJECT TO ENSURE THAT THE ASSESSING OFFICERS /COMPETENT AUTHORITIES CANNOT ACT WITH CALLOUSNESS AND WITHOUT ANY BASIS. E VERY ACTIONS OF THE AUTHORITIES COMPETENT, MUST BE ON REASONINGS AND THE SAME MUST BE RECORDED IN THE REASONS TO BE RECORDED BY THE AO FOR TAKING DECISION TO REOPEN THE ESCAPED ASSESSMENT. IF THE ASSESSEE IS OF THE OPINION THAT HE REQUIRES THE REASONS RECO RDED BY THE AO FOR REOPENING OF THE ASSESSMENT, THEN HE CAN MAKE A REQUEST AND ACCORDINGLY THE SAME SHALL BE FURNISHED BY THE AO TO THE ASSESSEE. THE SAID PROPOSITIONS IS 3 I.T.A. NO. 1883 /MUM/201 7 CHATURBHUJ BATRA VERY WELL RECOGNIZED BY THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF GKN DRIVESH AFTS (INDIA) LTD . THE PROVISION IS INCORPORATED IN ORDER TO ENSURE THAT THE AO ACTS WITH RESPONSIBILITY AND MAKE SURE THAT THEY ARE REOPENING THE ASSESSMENT ONLY BASED ON SOME REASONS AND THE MATERIALS AVAILABLE ON RECORD. 4. OUR ATTENTION WAS DRAWN TO R EPLY DATED 23.05.14, WHICH IS AT PAGE NO. 9 OF THE PAPER BOOK, WHEREIN THE ASSESSEE HAD SPECIFICALLY ASKED THE AO TO PROVIDE REASONS RECORDED FOR REOPENING THE ASSESSMENT. HOWEVER, ACCORDING TO THE ASSESSEE, THE AO HAD NOT SUPPLIED THE REASONS, BUT PROCE EDED TO PASS ASSESSMENT ORDER U/S 143(3) R.W.S 147 OF THE ACT. IN THE SAID ORDER AT PARA NO. 2, THE AO HAD REITERATED THE CONTENTS OF THE REPLY DATED 23.05.14, BUT HAD OMITTED TO MENTION THAT ASSESSEE HAD REQUESTED FOR FURNISHING REASONS RECORDED, IF ANY, BY THE AO. 5. WE ARE IN AGREEMENT WITH LD. AR THAT IT IS THE RIGHT OF THE ASSESSEE TO KNOW THE REASONS RECORDED BY THE AO FOR REOPENING OF THE ASSESSMENT. BUT IN THE PRESENT CASE, THE SAME WERE NOT 4 I.T.A. NO. 1883 /MUM/201 7 CHATURBHUJ BATRA ALLEGEDLY SUPPLIED TO THE ASSESSEE. BEFORE US, THE ASS ESSEE HAS TAKEN A SPECIFIC GROUND IN THIS RESPECT, WHICH GOES TO THE ROOTS OF THE CASE . A PPARENTLY FROM THE ORDER OF AO AS WELL AS LD. CIT(A), THE CORRECT PICTURE IS NOT EMERGING AS TO WHETHER THE REASON FOR REOPENING WAS RECORDED OR SUPPLIED TO THE ASSESSEE OR NOT . THEREFORE, IN SUCH A SITUATION, THE ENDS OF JUSTICE WOULD BE MET ONLY WHEN THE CLEAR FACTS ARE BROUGHT ON RECORD AND MUST EMANATE FROM THE ORDER OF AO AND THE SAME CAN ONLY BE DONE WHEN THE M ATTER IS REMITTED /RESTORED BACK TO THE FILE OF AO FOR WHICH, BOTH THE PARTIES HAVE AGREED. 6. THEREFORE IN SUCH CIRCUMSTANCES, WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO PASS AFRESH ORDER OF ASSE SSMENT AFTER CLEARLY MENTIONING THE REASONS TO BELIEVE, RECORDED, IF ANY. THE AO IS FURTHER DIRECTED TO SUPPLY THE COPY OF REASONS, IF SO RECORDED, BY THE AO. IT IS NEEDLESS HERE TO MENTION THAT BEFORE PASSING THE ORDER OF ASSESSMENT, THE AO SHALL PROV IDE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESS E E. 5 I.T.A. NO. 1883 /MUM/201 7 CHATURBHUJ BATRA 7 . BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF AO SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE , WHICH SHALL BE ADJUDICATED BY THE AO INDEPENDENTLY IN ACCORDANCE WITH LAW. 8 . IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH FEB , 2019. SD/ - SD/ - ( N. K. PRADHAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 14 . 02 .201 9 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBA I