Hardware Trading Corporation, Kolkata V. ACIT, Circle-34, Kolkata, Kolkata

ITA 1993/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1196 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 27-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Assessee Lawyers: GIRISH SHARMA
• Section: 147

Judgement Text

1 ITA NO.1993/KOL/2014 HARDWARE TRADING CORPORATION, AY, 2008-09 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1993/KOL/2014 ASSESSMENT YEAR: 2008-09 HARDWARE TRADING CORPORATION (PAN: AABFH8363C) VS. ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-34, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 05.09.2017 DATE OF PRONOUNCEMENT .11.2017 FOR THE APPELLANT SHRI GIRISH SHARMA FCA FOR THE RESPONDENT SHRI SAURABH KUMAR, ADDL. CIT, D R ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-XX, KOLKATA DATED 09.09.2014 FOR AY 2008-09. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE ADDITIONAL GROUND OF APPEAL WHEREIN THE ASSESSEE HAS RAISED TH E GROUND THAT THE ASSESSEE HAD OBJECTED TO THE REOPENING PROPOSED BY THE AO U/S. 147/148 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). HOWEVER, THE AO HAS NOT DISPOSED OF THE OBJECTION AS PER THE BINDING DECISION OF THE HONBLE SUPREME COURT IN TH E CASE OF GKN DRIVESHAFT (INDIA) LTD. VS. ITO & ORS. (2003) 259 ITR 19 (SC). THE LD. DR OBJECTS TO THE ADMISSION OF ADDITIONAL GROUND. HOWEVER, SINCE IT IS PURELY A LEGAL ISSUE, WE RELYING ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NTPC LTD. 229 ITR 383 (SC) ADMIT THE ADDITIONAL GROUND WHICH, IF FOUND VALID, GOES TO THE ROOT OF THE MATT ER SO, NEEDS TO BE ADJUDICATED FIRST. 3. THE LD. AR DREW OUR ATTENTION TO PAGE NO. 68 OF THE PAPER BOOK WHICH IS THE LETTER DATED 23.04.2013 WRITTEN BY THE LD. AR OF THE ASSES SEE OBJECTING TO THE REOPENING ON THE REASONS RECORDED U/S. 148(2) OF THE ACT. IN THE SA ID LETTER SUBJECT ITSELF IS FURNISHING OF OBJECTION TO THE REASONS RECORDED U/S. 148(2) FOR T HE ASST. YEAR 2008-09. IN THE FIRST PARA 2 ITA NO.1993/KOL/2014 HARDWARE TRADING CORPORATION, AY, 2008-09 ITSELF THE ASSESSEE HAS PLACED ON RECORD THEIR OBJE CTION TO THE REASSESSMENT PROCEEDING INITIATED BY THE AO U/S. 147 OF THE ACT. WE NOTE T HAT THE OBJECTION AGAINST REOPENING RUNS TO SIX PAGES AND IN THE LAST PARA, THE LD. AR PRAYS TO THE AO TO DEAL WITH THE OBJECTION RAISED BEFORE PROCEEDING IN THE MATTER OF REASSESSM ENT PROPOSED BY HIM. THEREAFTER, THE LD. AR DREW OUR ATTENTION TO PAGE NOS. 89 TO 93 WHICH I S THE COPY OF THE ORDER SHEET IN THE CASE OF THE ASSESSEE MAINTAINED BY THE AO, WHEREIN WE NO TE THAT BASED ON THE INTERNAL AUDIT OBSERVATION THE AO INITIATED THE PROPOSAL TO REOPEN WHICH IS DATED 15.01.2013. THEREAFTER, WE NOTE THAT THE REASONS HAVE BEEN RECORDED ON 15.0 1.2013 WHICH IS FOUND RECORDED IN PAGES 90 TO 91. IN PAGE NO. 92, THE AO NOTES THAT ON 23.04.2013, MR. GIRISH SHIV SHARMA THE LD. AR OF THE ASSESSEE APPEARED AND FILED DETAI LS THROUGH HIS LETTER DATED 23.04.2013 (WHICH IS THE LETTER WE MENTIONED EARLIER, BY WHICH THE ASSESSEE HAS OBJECTED TO THE REOPENING/REASSESSMENT). THEREAFTER, WE NOTE THAT THERE IS NO OTHER ENTRY MADE WHEREIN AO HAS RECORDED THAT HE HAS DISPOSED OFF THE OBJECTION RAISED BY THE ASSESSEE VIDE LETTER DATED 23.04.2013. ON THE OTHER HAND, WE NOTE THAT THE AO NOTES THEREAFTER THAT HE HAS PASSED THE ASSESSMENT ORDER U/S. 147/143(3) OF THE ACT. FROM THE AFORESAID FACTS WE NOTE THAT THE ASSESSEES OBJECTION AFTER GOING THROUGH THE REASON S RECORDED FOR REOPENING, WAS NOT DONE AT ALL BY THE AO BEFORE PASSING THE REASSESSMENT ORDER WHICH IS PER SE AGAINST THE BINDING DIRECTION OF THE HONBLE SUPREME COURT IN GKN DRIVE SHAFT (INDIA) LTD.(SUPRA) WHEREIN THEIR LORDSHIPS HELD THAT ON RECEIPT OF REASONS, TH E NOTICEE IS ENTITLED TO FILE OBJECTION TO ISSUANCE OF THE NOTICE AND THE AO IS BOUND TO DISPO SE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE INSTANT CASE, A PERUSAL OF THE ORDER SHEET OF AO DOES NOT DISCLOSE THAT AO HAD DISPOSED OF THE OBJECTION RAISED BY THE ASSESSEE BY PASSING A SPEAKING ORDER. WE NOTE THAT THE ASSESSEE VIDE LETTER DATED 23.04.2013 HAD IN FA CT OBJECTED TO THE REOPENING OF FILING SIX PAGES LETTER AND THIS FACT IS CORROBORATED BY THE A O HIMSELF IN THE ORDER SHEET MAINTAINED BY HIM AND WE NOTE THAT THE AO HAS NOT PASSED ANY SPEA KING ORDER TO DISPOSE OF THE OBJECTION RAISED BY THE ASSESSEE. AS PER ARTICLE 141 OF THE CONSTITUTION OF INDIA, THE HONBLE SUPREME COURTS DIRECTION IS BOUND TO BE ACTED UPON BY THE COURTS AND OTHER AUTHORITIES. THE AO HAS NOT CARED TO DISPOSE OF THE OBJECTIONS RAISED BY TH E ASSESSEE AS DIRECTED BY THE HONBLE SUPREME COURT. AS STATED ABOVE, FROM THE ORDER SHEE T ENTRIES IT IS VERY CLEAR THAT THE AO DID NOT DISPOSE OF THE OBJECTION OF THE ASSESSEE AS DIR ECTED BY THE HONBLE SUPREME COURT IN 3 ITA NO.1993/KOL/2014 HARDWARE TRADING CORPORATION, AY, 2008-09 GKN DRIVESHAFT (INDIA) LTD.(SUPRA) WHICH MAKES THE REASSESSMENT ORDER BAD IN THE EYES OF LAW AND IS NON-EST IN THE EYES OF LAW FOR FLOUTING THE ORDER OF THE HONBLE SUPREME COURT. 3. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D. ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 RD NOVEMBER, 2017 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 3 RD 2NOVEMBER, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT HARDWARE TRADING CORPORATION, MARSHA LL HOUSE, R. NO. 601, 6 TH FLOOR, 25, STRAND ROAD, KOLKATA-700 001. 2 RESPONDENT ACIT, CIRCLE-34, KOLKATA. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY