Evergreen Welfare Association, Patna V. A.O., DCIT, Circle-1, Patna

ITA 196/PAT/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1225 (ITAT-PATNA)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 16-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY KUMAR CITSRDR
• Assessee Lawyers: K N PRASAD
• Keywords: Period of limitation; Tangible material; Time period of passing order; Set aside
• Section: 143(3); 143(2); 139(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA SMC BENCH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER . / ITA NO.196-197/PAT/2018 ASSESSMENT YEARS:2006-07 & 2007-08 EVERGREEN WELFARE ASSOCIATION B/H SURYA MANDIR, ANISHABAD KHAGAUL ROAD, PATNA-800002 [ PAN NO. AABFE 8130 C ] / V/S . DY. COMMISSIONER OF INCOME TAX, CIRCLE-1, PATNA /APPELLANT .. /RESPONDENT HEARING THROUGH VIDEO CONFERENCING /BY APPELLANT SHRI K.N. PRASAD, ADVOCATE /BY RESPONDENT SHRI AJAY KUMAR, ADDL. CIT-SR-DR /DATE OF HEARING 20-01-2021 /DATE OF PRONOUNCEMENT 20-01-2021 /O R D E R THE PRESENT APPEALS HAVE BEEN PREFERRED BY THE ASS ESSEE AGAINST THE COMMON ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-1 , PATNA [HEREINAFTER REFERRED TO AS CIT(A)] DATED 28.05.2018. THE ASSESSEE IN THES E APPEALS HAS CONTESTED THE VALIDITY OF THE RE-ASSESSMENT FRAMED U/S 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE SHORT PLEA RAISED BY THE LD. COUNSEL FOR THE ASSESSEE DURING THE HEARING IS THAT NO NEW INFORMATION HAD COME INTO THE KNOWLEDGE OR POSSESSION OF THE ASSESSING OFFICER FOR FORMING THE BELIEF THAT THE INCOME OF T HE ASSESSEE HAS ESCAPED ASSESSMENT. LD. COUNSEL IN THIS RESPECT HAS RELIED UPON THE FOL LOWING CHART:- S.NO. PARTICULARS ITA NO.196/PAT/18 ITA NO.197/PAT/ 18 ITA NO.196-197/PAT/2018 A.YS. 06-07 & 07- 08 EVERGREEN WELFARE ASSOCIATION VS. DCIT, CIR-1, PATNA PAGE 2 A.Y 2006-07 A.Y. 2007-08 (A) DUE DATE OF FILING RETURN US/S 139(1) 31.10.2006 31.12.2007 (B) ITR FILED ON 30.06.2006 31.12.2007 (C) DATE TILL THE NOTICE U/S 143(2) COULD BE ISSUED 31.03.2008 31.03.2009 (D) SURVEY TAKE PLACE 03.11.2006 03.11.2006 (E) PROCESSING U/S 147 INITIATED 17.07.2009 17.07.2 009 LD. COUNSEL HAS SUBMITTED THAT FOR AY 2006-07 THE DUE DATE FOR FILING THE RETURN U/S 139(1) WAS ON 31.10.2006 WHEREAS FOR AY 2007-08 TH E SAME WAS 31.12.2007. THE LAST DATE UPTO WHICH THE NOTICE U/S 143(2) OF THE A CT COULD HAVE BEEN ISSUED IN RESPECT OF RETURN FILED FOR AY 2006-07 WAS ON 31.03.2008 WH EREAS FOR AY 2007-08 THE SAME WAS ON 31.03.2009. HOWEVER, A SURVEY ACTION ON THE PREMISES OF THE ASSESSEE HAD TAKEN PLACE ON 03.11.2006 ON WHICH DATE, SOME ALLEG ED INFORMATION ABOUT THE INCOME OF THE ASSESSEE HAD COME INTO NOTICE OF THE INCOME TAX AUTHORITIES ASSESSING OFFICER. THE ASSESSING OFFICER, FOR THE REASON, BEST KNOWN T O HIM DID NOT CHOSE TO SCRUTINISE THE RETURN AND FRAME ASSESSMENT U/S 143(3) OF THE A CT. THAT AFTER THE EXPIRY OF THE LAST DATE TO ISSUE NOTICE U/S 143(2) OF THE ACT, THE RET URN FILED BY THE ASSESSEE HAD BECOME FINAL. HOWEVER, WITHOUT ANY TANGIBLE MATERIAL OR AN Y FRESH INFORMATION COMING INTO THE KNOWLEDGE OF THE ASSESSING OFFICER, THE ASSESSI NG OFFICER INITIATED RE-ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT ON 17.07.2009 ON THE BASIS OF THE ALLEGED INFORMATION COLLECTED DURING SURVEY ACTION ON 03.11.2006. LD. D R HAS NOT DISPUTED ABOUT THE ABOVE SAID FACTUAL POSITION RELATING DATE AND EVENT S. 3. BY NOW IT IS A SETTLED LAW THAT RE-OPENING OF TH E ASSESSMENT CANNOT BE INITIATED AT THE WHIMS AND WISHES OF THE ASSESSING OFFICER. T HAT SOME TANGIBLE MATERIAL OR INFORMATION MUST COME TO THE KNOWLEDGE AND POSSESSI ON OF THE ASSESSING OFFICER TO FORM BELIEF THAT INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. IN THIS CASE, THE ASSESSING OFFICER HAD ALREADY COME INTO KNOWLEDGE & POSSESSION OF THE ALLEGED INFORMATION DURING THE SURVEY ACTION CARRIED OUT ON 03.11.2006. THE ASSESSING OFFICER ON THE BASIS OF THE SAID INFORMATION COULD HAVE FRA MED THE ASSESSMENT OF THE ASSESSEE U/S 143(3) OF THE ACT AS THE LAST DATE FOR THE ISSU E OF NOTICE U/S 143(2) OF THE ACT FOR ITA NO.196-197/PAT/2018 A.YS. 06-07 & 07- 08 EVERGREEN WELFARE ASSOCIATION VS. DCIT, CIR-1, PATNA PAGE 3 AY 2006-07 WAS UPTO 31.03.2008 AND FOR AY 2007-08 U PTO 31.03.2009. HOWEVER, THE ASSESSING OFFICER DID NOT CHOOSE TO FRAME THE ASSES SMENT U/S 143(3) OF THE ACT. THEREAFTER, NEITHER FRESH INFORMATION NOR ANY TANGI BLE MATERIAL HAD COME TO THE KNOWLEDGE OF THE ASSESSING OFFICER TO FORM BELIEF T HAT INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. THE RE-OPENING ON THE BASIS OF INFORMATION WHICH WAS ALREADY INTO THE KNOWLEDGE AND POSSESSION OF THE ASSESSING OFFICER BEFORE EXPIRY OF THE LIMITATION PERIOD FOR ISSUING NOTICE U/S. 143(2) OF THE ACT, CANNOT FORM THE BASIS TO FRAME ASSESSMENT U/S. 147 OF THE ACT. IN VIEW OF TH IS, THE RE-ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S 147 OF THE ACT IS BAD IN LAW AND SAME IS HEREBY QUASHED. CONSEQUENTIAL ADDITIONS MADE DURING THE IMPUGNED AS SESSMENT ARE THEREFORE, SET ASIDE. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE STA ND ALLOWED. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILE . ORDER PRONOUNCED IN OPEN COURT AT THE CLOSE OF THE HEARING ON WEDNESDAY, 20 TH JANUARY, 2021 . SD/- (SANJAY GARG) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS ' - 20/01/2021 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-EVERGREEN WELFARE ASSOCIATION B/S SURYA MANDIR, ANISHABAD KHAGAUL ROAD, PATNA-800002 2. /RESPONDENT-DCIT, CIR-1, PATNA 3. % ' / CONCERNED CIT 4. ' - / CIT (A) 5. ) ,,% , % / DR, ITAT, KOLKATA 6. . / GUARD FILE. BY ORDER/ , /TRUE COPY/ %,