Biswanath Banerjee, Kolkata V. ITO, WD-58(2), KOLKATA, Kolkata

ITA 192/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0596 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 09-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM AND SHRI ABY. T. VARKEY, JM] I.T.A. NO. 192/KOL/2016 ASSESSMENT YEAR: 2007-08 SHRI BISWANTH BANERJEE..........................................APPELLANT 79, SPD BLOCK, BAGHAJATIN, KOLKATA 700086 [PAN : ADPPB9285Q] I.T.O. WARD 22(1)/ 58(2)......RESPONDENT BAMBOO VILA, 169, A.J.C. BOSE ROAD, KOLKATA 700 014 APPEARANCES BY: SHRI V.N. DUTTA, ADVOCATE, APPEARING ON BEHALF OF THE ASSESSEE. SHRI P.K. MONDAL, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 21, 2017 DATE OF PRONOUNCING THE ORDER : DECEMBER 22 , 2017 ORDER PER P.M. JAGTAP, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 18, KOLKATA DATED 02.12.2015. 2. THE RELEVANT FACTS OF THE CASE GIVING RISE TO THIS APPEAL ARE AS FOLLOWS. THE ASSESSEE IS AN INDIVIDUAL WHO IS A TEACHER DERIVING INCOME FROM SALARY CAPITAL GAIN AND OTHER SOURCES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 25.07.2007 DECLARING A TOTAL INCOME OF RS. 98,914/-. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 31.12.2009, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE A.O. AT RS. 32,94,047/- AFTER MAKING VARIOUS ADDITIONS. 3. AGAINST THE ORDER PASSED BY THE A.O. UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) 2 I.T.A. NO. 192/KOL/2016 ASSESSMENT YEAR: 2007-08 BISWANATH BANERJEE CHALLENGING THE VALIDITY OF THE SAID ORDER ON THE GROUND THAT THE NOTICE ISSUED BY THE A.O. UNDER SECTION 143(2) INITIATING THE ASSESSMENT PROCEEDINGS WAS BARRED BY LIMITATION. THE ASSESSEE ALSO DISPUTED THE VARIOUS ADDITIONS MADE BY THE A.O. TO HIS TOTAL INCOME IN THE SAID APPEAL FILED BEFORE THE LD. CIT(A). THE LD. CIT(A) DID NOT FIND MERIT IN THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF THE ASSESSMENT MADE BY THE A.O. UNDER SECTION 143(3) AND REJECTING THE SAME, HE UPHELD THE VALIDITY OF THE SAID ORDER. HE ALSO SUSTAIN SUBSTANTIALLY THE VARIOUS ADDITIONS MADE BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. IN GROUND NO 1 AND 2, THE ASSESSEE HAS RAISED A PRELIMINARY ISSUE CHALLENGING THE VALIDITY OF THE ASSESSMENT MADE BY THE A.O. UNDER SECTION 143(3) ON THE GROUND THAT THE NOTICE ISSUED BY THE A.O. UNDER SECTION 143(2) INITIATING THE ASSESSMENT PROCEEDINGS WAS BARRED BY LIMITATION. 5. IN SUPPORT OF THE ASSESSEES CASE ON THE PRELIMINARY ISSUE, THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE ASSESSEE ON 25.07.2007 AND AS PER THE PROVISO TO SECTION 143(2) AS APPLICABLE TO THE YEAR UNDER CONSIDERATION, THE NOTICE UNDER SECTION 143(2) COULD BE VALIDLY ISSUED BY THE A.O. ONLY UP TO 31.07.2007 I.E. WITHIN A PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED BY THE ASSESSEE. HE CONTENDED THAT THE NOTICE UNDER SECTION 143(2), HOWEVER, WAS ISSUED BY THE A.O. ONLY ON 07.08.2008 AND THE SAME THEREFORE WAS BARRED BY LIMITATION MAKING THE ASSESSMENT COMPLETED 3 I.T.A. NO. 192/KOL/2016 ASSESSMENT YEAR: 2007-08 BISWANATH BANERJEE BY THE A.O. UNDER SECTION 143(3) IN PURSUANCE THEREOF AS INVALID . IN SUPPORT OF THIS CONTENTION, THE LEARNED COUNSEL FOR THE ASSESSEE RELIED INTER ALIA ON THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF TULSI FOOD PRODUCTS VS DCIT 380 ITR 192. 6. THE LEARNED DR, ON THE OTHER HAND, STRONGLY RELIED ON THE IMPUGNED ORDER OF THE LD. CIT(A) IN SUPPORT OF THE REVENUES CASE ON THIS ISSUE AND SUBMITTED THAT AS PER THE AMENDMENT MADE BY THE RELEVANT PROVISIONS WITH EFFECT FROM 01.04.2008, THE TIME LIMIT FOR ISSUING NOTICE UNDER SECTION 143(2) IS CHANGED TO 6 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN WAS FURNISHED. HE CONTENDED THAT THE TIME LIMIT AVAILABLE TO ISSUE A VALID NOTICE UNDER SECTION 143(2) WAS UP TO 30.09.2008 AND THE NOTICE ISSUED BY THE A.O. ON 07.08.2008 WAS WELL WITHIN THE TIME LIMIT. HE ALSO CONTENDED THAT SECTION 143(2) IS PROCEDURAL AND THEREFORE THE AMENDMENT MADE WITH EFFECT FROM 01.04. 2008 WAS APPLICABLE IN THE CASE OF THE ASSESSEE AS THE NOTICE UNDER SECTION 143(2) WAS ISSUED BY THE A.O. ON 07.08.2008. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT THE MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE PRELIMINARY ISSUED RAISED BY THE ASSESSEE IN THIS APPEAL IS SQUARELY COVERED INTER ALIA BY THE DECISION OF HONBLE ALLHABAD HIGH COURT IN THE CASE OF TULSI FOOD PRODUCTS VS DCIT 380 ITR 192 WHEREIN IT WAS HELD THAT THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 HAVING BEEN FILED BY THE ASSESSEE ON 24.07.2007, THE AMENDMENT MADE TO SECTION 143(2) WITH EFFECT FROM 01.04.2008 WAS NOT APPLICABLE AND THE NOTICE ISSUED BY THE A.O. UNDER 143(2) ON 4 I.T.A. NO. 192/KOL/2016 ASSESSMENT YEAR: 2007-08 BISWANATH BANERJEE 26.09.2008 I.E. AFTER A PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN OF INCOME WAS FILED BY THE ASSESSEE WAS BARRED BY LIMITATION. THE ASSESSMENT MADE IN THE SAID CASE IN PURSUANCE OF THE NOTICE ISSUED IN VALIDLY UNDER SECTION 143(2) ACCORDINGLY WAS HELD TO BE BAD IN LAW BY THE HONBLE ALLAHABAD HIGH COURT. IN OUR OPINION, THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF TULSI FOOD PRODUCTS (SUPRA) THUS IS SQUARELY APPLICABLE IN THE PRESENT CASE AND RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE NOTICE ISSUED BY THE A.O. UNDER SECTION 143(2) ON 07.08.2008 I.E. AFTER A PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FILED BY THE ASSESSEE, WAS BARRED BY LIMITATION AND THE ASSESSMENT COMPLETED UNDER SECTION 143(3) IN PURSUANCE THEREOF IS LIABLE TO BE CANCELLED BEING INVALID. WE, ACCORDINGLY ALLOW GROUND NO 1 AND 2 OF ASSESSEES APPEAL AND CANCEL THE ASSESSMENT MADE BY THE A.O. UNDER SECTION 143(3) BEING INVALID. 8. AS A RESULT OUR DECISION RENDERED ABOVE ON THE PRELIMINARY ISSUE CANCELLING THE ASSESSMENT MADE BY THE A.O. UNDER SECTION 143(3), OTHER GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL DISPUTING THE VARIOUS ADDITIONS MADE BY THE A.O. IN THE SAID ASSESSMENT HAVE BECOME INFRUSTUOUS. WE THEREFORE DO NOT CONSIDER IT NECESSARY OR EXPEDIENT TO ADJUDICATE UPON THE SAME. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND DECEMBER, 2017. SD/- SD/- (ABY.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER 5 I.T.A. NO. 192/KOL/2016 ASSESSMENT YEAR: 2007-08 BISWANATH BANERJEE DATED: 22/12/2017 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. BISWANATH BANERJEE, 79, SPD BLOCK, BAGHAJATIN, KOLKATA 700 086. 2. I.T.O., WARD 22(1) / NOW 58(2), BAMBOO VILLA, 169, A.J.C. BOSE ROAD, KOLKATA 700014. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA