Kamendra Mishra , Ramgarh V. ITO WD-2(3), Ramgarh

ITA 201/RAN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0607 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 24-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MOHANTY
• Assessee Lawyers: M K CHOUDHARYMANAV PODDAR
• Keywords: Reopening of assessment
• Section: 143(3); 147; 148; 10

Judgement Text

P A G E 1 | 6 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO S . 201 TO 202 / RAN /201 7 ASSESSMENT YEAR S : 2009 - 10 TO 2010 - 11 KAMENDRA MISHRA, RAMGARH GYMKHANA CLUB, RANCHI ROAD, MARAR, RAMGARH VS. ITO, WARD 2(3), RAMGARH. PAN/GIR NO. (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI M.K.CHOUDHARY/MANAV PODDAR, ADV REVENUE BY : SHRI A.K.MOHANTY, JCIT DATE OF HEARING : 27 / 11 / 2018 DATE OF PRONOUNCEMENT : 30 / 11 / 2018 O R D E R PER N.S.SAINI, AM THESE ARE APPEAL S FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDER S OF THE CIT(A), HAZARIBAG, ALL D ATED 27.6.2017 FOR THE ASSESSMENT YEAR S 2009 - 10 TO 2010 - 11 , RESPECTIVELY. 2 . IN BOTH THE ASSESSMENT YEARS, THE ASSESSEE HAS RAISED FOLLOWING COMMON GROUNDS OF APPEAL: 1. THE ORDER OF THE LOWER AUTHORITIES ARE BAD IN LAW AND FACTS. 2. THE CIT(A) ERRED IN CONFIRMING REOPENING OF THE CASE WITHOUT COMPLYING WITH THE D IRECTION OF SUPREME COURT AND SECTION 147. ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 2 | 6 3. THE CIT(A) ERRED IN CONFIRMING THE ESTIMATE OF THE INCOME ON THE GROSS RECEIPT AT THE RATE OF 8% WITHOUT ANY BASIS. 4. THE CIT(A) ERRED IN CONFIRMING CHARGING INTEREST U/S.234B, CONTRARY TO THE BINDING DECISION OF JURISDICTIONAL HIGH COURT. 5. FOR THAT, ORDER GROUNDS IF ANY, WOULD BE URGED AT THE TIME OF HEARING. 3 . GROUND NOS.1 AND 5 OF APPEAL ARE GENERAL IN NATURE, HENCE REQUIRES NO SEPARATE ADJUDICATION BY US. 4 . AT THE TIME OF HEARING, LD AUTHORISED REPRESENTATIVE DID NOT PRESS GROUND NOS.3 AND 4 OF THE APPEAL FOR BOTH THE ASSESSMENT YEARS UNDER APPEAL AND HAS ALSO MADE ENDORSEMEN T TO THIS EFFECT IN THE GROUNDS OF APPEAL APPENDED TO FORM NO.36 FILED BEFORE THE TRIBUNAL. THEREFORE, GROUND NOS.3 AND 4 ARE DISMISSED AS NOT PRESSED. 5 . THE ONLY REMAINING GRIEVANCE TAKEN IN GROUND NO.2 OF APPEAL FOR BOTH THE ASSESSMENT YEARS IS THAT T HE CIT(A) ERRED IN CONFIRMING REOPENING OF ASSESSMENT WITHOUT COMPLYING WITH THE DIRECTION OF HONBLE SUPREME COURT AND SECTION 147 OF THE ACT. 6 . LD AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSMENT YEARS INVOLVED ARE 2009 - 10 AND 2010 - 2011. NOTICE UNDER SECTION 148(2) OF THE ACT WAS ISSUED ON 3.2.2016, WHICH IS BEYOND THE PERIOD OF FOUR YEARS FROM THE DATE OF THE RELEVANT ASSESSMENT ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 3 | 6 YEARS. LD AUTHORISED REPRESENTATIVE BY REFERRING TO PAGE 1 OF THE ASSESSMENT ORDER PASSED UNDER SECTION 147 R.W.S 14 3(3) OF THE ACT DATED 30.12.2016 IN BOTH THE YEARS UNDER APPEAL SUBMITTED THAT THE ASSESSING OFFICER BEFORE ISSUING NOTICE FOR REOPENING OF ASSESSMENT HAS TAKEN APPROVAL OF JOINT COMMISSIONER OF INCOME TAX , RANGE - 2, HAZARIBAG. HE POINTED OUT THAT PROVISIO NS OF SECTION 151 OF THE ACT WERE AMENDED BY THE FINANCE ACT, 2015 W.E.F. 1.6.2015 AND THE AMENDED PROVISIONS OF SECTION 151(1) READ AS UNDER: NO NOTICE SHALL BE ISSUED UNDER SECTION 148 BY THE ASSESSING OFFICER AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEARS, UNLESS THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER, OR PRINCIPAL COMMISSIONER OR COMMISSIONER IS SATISFIED ON THE REASONS RECORDED BY THE ASSESSING OFFICER THAT IT IS A FIT CASE FOR ISSUE OF SUCH NOTICE. 7 . HE FURTHER RELIED ON THE DECISION OF HONBLE JHARKHAND HIGH COURT IN THE CASE OF NAVKETAN ENTERPRISES VS CIT, (2001) 250 ITR 508 (JHARKHAND) AND SUBMITTED THAT THE HONBLE HIGH COURT HAS HELD THAT THE MANNER OF ISSUE OF NOTICE UNDER SECTION 148 AND THE R EQUIREMENTS TO BE COMPLIED WIT H, ARE CONTAINED IN SECTION 151. IF THEREFORE, THE ASSESSING OFFICER CONTEMPLATES INITIATING PROCEEDINGS UNDER SECTION 147 AND BEFORE HE DOES SO SINCE HE HAS TO ISSUE A NOTICE UNDER SECTION 148, THE REQUIREMENTS AS CONTAINED IN SECTION 151 HAVE TO BE COMPLIED WITH. FOR ISSUANCE OF NOTICE ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 4 | 6 UNDER SECTION 148 OF THE ACT, THE ASSESSING OFFICER IS SUPPOSED TO LOOK AT THE LAW AS IT PRESENTLY STANDS AND APPLY THE SAME. HE HAS NOT TO GO BACK TO A LAW WHICH STOOD AT A POINT OF TIME WH EN THE ORIGINAL ASSESSMENT ORDER WAS PASSED. OBTAINING THE APPROVAL OF A SUPERIOR OFFICER IS PROCEDURAL IN NATURE. THEREFORE, FOR THE PURPOSE OF OBTAINING THE APPROVAL, THE ASSESSING OFFICER HAS TO APPLY THE LAW AS IT STANDS ON THE DATE WHEN HE DECIDES, B Y RECORDING HIS REASONS, TO INVOKE SECTION 147 AND, THUS DECIDES TO ISSUE NOTICE UNDER SECTION 148. THUS, IT WAS HIS SUBMISSION THAT NOTICE WAS ISSUED ON 3.2.2016 WHEN THE AMENDED PROVISIONS OF S ECTION 151(1) WERE APPLICABLE AND THE ASSESSING OFFICER WAS REQUIRED TO SEEK APPROVAL FROM PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER, OR PRINCIPAL COMMISSIONER OR COMMISSIONER AS REOPENING OF ASSESSMENT WAS MADE AFTER FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEARS. AS THE APPROVAL WAS OBTAINED F ROM THE JOINT COMMISSIONER OF INCOME TAX, RANGE - 2, HAZARIBAG, THEREFORE, THE REOPENING OF ASSESSMENT WAS BAD IN LAW AND CONSEQUENTLY, THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE SAID NOTICE IS ALSO BAD IN LAW AND IS REQUIRED TO BE CANCELLED. 8 . LD DEPA RTMENTAL REPRESENTATIVE COULD NOT CONTROVERT THE SUBMISSION OF LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE. ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 5 | 6 9 . IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT AS THE ASSESSING OFFICER HAD NOT TAKEN APPROVAL FROM THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER, OR PRINCIPAL COMMISSIONER OR COMMISSIONER , FOR REOPENING O F ASSESSMENT, WHICH WAS BEYOND THE PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEARS BY ISSUANCE OF NOTICE UNDER SECTION 148 ON 3.2.2016, WHICH WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 151(1) OF THE ACT APPLICABLE AT THE RELEVA NT POINT OF TIME, THE ISSUANCE OF NOTICE U/S.148 OF THE ACT IS BAD IN LAW AND CONSEQUENTLY, THE ASSESSMENT ORDER PASSED UNDER SECTION 147 R.W.S 143(3) IS ALSO BAD IN LAW AND HENCE, SAME IS CANCELLED. THEREFORE, THIS GROUND OF APPEAL IS ALLOWED. 10 . IN TH E RESULT, BOTH THE APPEAL S OF THE ASSESSEE ARE PARTLY ALLOWED . ORDER PRONOUNCED ON 30 / 11 /2018. SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER RANCHI ; DATED 30 / 11 /2018 B.K.PARIDA, SPS ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 6 | 6 COPY OF THE ORDER FORWARDED TO : BY ORDER SR.PVT.SECRETARY, ITAT, RANCHI ON TOUR 1. THE APPELLANT : KAMENDRA MISHRA, RAMGARH GYMKHANA CLUB, RANCHI ROAD, MARAR, RAMGARH 2. THE RESPONDENT. ITO, WARD 2(3), RAMGARH. 3. THE CIT(A) - HAZARIBAG 4. PR.CIT - HAZARIBAG 5. DR, ITAT, RANCHI 6. GUARD FILE. //TRUE COPY//