DCIT, CC - VIII, Kolkata, Kolkata V. M/s. East End Silk Ltd., Kolkata

ITA 1901/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54578 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2011
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2001-2002
• Appeal Filed On: 08-10-2010
• Court: TRIBUNAL
• Department Lawyers: P S DUTTA
• Assessee Lawyers: S L KOCHAR
• Keywords: Reopening of assessment; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 148; 2; 143(3); 10B

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA () BEFORE , ,, , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $ $ $ $ / ITA NO . 1901/KOL/2010 %& '(/ ASSESSMENT YEAR : 2001-02 (*+ / APPELLANT ) D.C.I.T., CENTRAL CIRCLE-VIII, KOLKATA - % - - VERSUS - . (-.*+/ RESPONDENT ) M/S. EAST END SILK LTD., KOLKATA (PAN:AAACE 5742 L) *+ / 0 '/ FOR THE APPELLANT: SHRI P.S.DUTTA -.*+ / 0 '/ FOR THE RESPONDENT: SHRI S.L.KOCHAR 1%2 / !# /DATE OF HEARING : 13.10.2011. 3' / !# /DATE OF PRONOUNCEMENT : 13.10.2011 '4 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ), , , , '# PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY REVENUE AGAINST THE ORDER DATED 14.07.2010 OF THE LD. CIT(A)-CENTRAL-I, KOLKATA. 2. THOUGH THE REVENUE HAS RAISED THREE GROUNDS ALL ARE RELATING TO ANNULLING OF THE ORDER OF AO PASSED U/S 147/143(3) OF THE IT ACT. 3. THE RELEVANT OBSERVATIONS OF LD. CIT(A) ON THIS ISSUE ARE AS UNDER :- 3.1. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD. A.R. IN THIS CASE NOTICE UNDER SECTION 148 HAS BEEN ISSUED BEYOND FOUR YEARS AND IT WAS SERVED AFTER 6 YEARS. NOW THE LAW IS WELL SETTLED THAT THE REOPENING OF A N ASSESSMENT BEYOND THE FOUR YEAR TIME LIMIT IS NOT POSSIBLE WHERE THE ASSESSEE HAD D ISCLOSED ALL MATERIAL FACTS ALONG WITH THE RETURN FILED. IN THE CASE UNDER CONSIDERAT ION REASSESSMENT NOTICE HAS BEEN ISSUED AFTER FOUR YEARS TO DISALLOW THE EXCESS DEDU CTION ALLOWED UNDER SECTION 10B OF THE INCOME TAX ACT. IN THE CASE UNDER CONSIDERATION ORIGINAL ORDER WAS PASSED UNDER 2 SECTION 143(3) OF THE ACT ON 23.02.2004 AND DETAILS OF DEDUCTION CLAIMED WAS DULY FILED BY THE ASSESSEE. HENCE IT CANNOT BE SAID THAT THE MATERIAL FACTS WERE NOT FULLY AND TRULY DISCLOSED BY THE ASSESSEE. 3.2. FURTHER THERE IS NO WHISPER IN THE REASONS R ECORDED BY THE A.O. THAT INCOME ESCAPED ASSESSMENT BY REASON OF ASSESSEES FAILURE TO MAKE A FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. HEN CE THE ISSUE REGARDING APPLICABILITY OF PROVISO TO SECTION 10B NOT CONSIDERED IN THE ORI GINAL ASSESSMENT AND REOPENING OF ASSESSMENT ON THE VERY SAME ISSUE SUFFERED FROM CHA NGE OF OPINION IN THE ABSENCE OF ANY FRESH MATERIAL. HENCE THE NOTICE U/S 148 OF THE IT ACT ISSUED BY THE LD. A.O. ON THE BASIS OF THE SAME FACTS AND MATERIAL WHICH ARE ALREADY ON RECORDS AT THE TIME OF ORIGINAL ASSESSMENT, AMOUNTS TO CHANGE OF OPINION, WHICH IS NOT PERMISSIBLE UNDER THE LAW. FURTHER MERELY BECAUSE ASSESSING OFFICER FEELS THAT HE HAS FAILED TO DO WHAT HE OUGHT TO HAVE DONE IN ORIGINAL ASSESSMENT PROCEEDIN GS, IT CAN BE A VALID GROUND FOR SEEKING INITIATION OF REASSESSMENT PROCEEDINGS UNDE R SECTION 147/148. 3.3. IN VIEW OF ABOVE POSITION OF FACT AND LAW, IT IS HELD THAT THE ASSESSEE HAVING MADE FULL DISCLOSURE OF MATERIAL FACTS IN THE RETUR N WHICH WAS ACCOMPANIED BY SEVERAL ENCLOSURES, ASSESSMENT COULD NOT BE REOPENED BEYOND FOUR YEARS FROM THE END OF THE RELEVANT ASST.YEAR FOR THE REASON THAT CERTAIN INCO ME HAS BEEN MADE THE SUBJECT OF EXCESSIVE RELIEF. ACCORDINGLY IT IS HELD THAT THE P RECONDITION FOR INVOKING THE PROVISO TO S.147 WAS NOT SATISFIED AND THEREFORE AO ACTED W HOLLY WITHOUT JURISDICTION IN ISSUING NOTICE U/S 148 BEYOND FOUR YEARS PERIOD MEN TIONED IN S.147. HENCE THE ORDER OF ASSESSMENT PASSED UNDER SECTION 147/143(3) IS AN NULLED. 4. AT THE TIME OF HEARING, THE LD. DR APPEARING ON BEHALF OF THE REVENUE THOUGH RELIED ON THE ORDERS OF AO HAS NOT CONTRADICTED TO THE FINDINGS MADE BY LD. CIT(A). 5. ON THE OTHER HAND, THE LD. COUNSEL APPEARING ON BEHALF OF ASSESSEE RELIED ON THE ORDERS OF LD. CIT(A). 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF MATERIALS AVAILABLE ON RECORD, WE FIND NO INFIRMITY IN THE OR DERS OF LD. CIT(A) AND IN THIS CASE AO HAS ISSUED NOTICE U/S 148 OF THE IT ACT BEYOND T HE PERIOD OF FOUR YEARS WITHOUT POINTING OUT THAT THE ASSESSEE HAS NOT FULLY AND TR ULY DISCLOSED ALL MATERIAL FACTS. THEREFORE, WE CONFIRM THE ACTION OF LD. CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.10.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , , , , '# '# '# '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 13.10..2011. R.G.(.P.S.) 3 '4 / -5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1. M/S. EAST END SILK LTD., (RESPNT), 97, PARK STREET, 4 TH FLOOR, KOLKATA-700016. 2 THE D.C.I.T., CENTRAL CIRCLE-VIII, KOLKATA. 3. THE CIT, 4. THE CIT(A)-CENTRAL-I, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA .5 -/ TRUE COPY, '4%1/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES