Dipti Mehta , Kolkata V. ITO, Ward - 43(2), , Kolkata

ITA 2031/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5727 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MADHUMALTI GHOSH CITSRDR
• Assessee Lawyers: ANIKESH BANERJEE
• Section: 14A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.2031/KOL/2018 ASSESSMENT YEAR:2009-10 DIPTI MEHTA 161/1 M.G. ROAD, GROUND FLOOR, KOKATA-700007 [ PAN NO.AESPM 0353 A ] / V/S . INCOME TAX OFFICER WARD-45(2), 3, GOVT. PLACE,KOLKATA-101 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI ANIKESH BANERJEE, ADVOCATE /BY RESPONDENT SHRI SMT. MADHUMALTI GHOSH ADDL. CIT-SR-DR /DATE OF HEARING 23-01-2019 /DATE OF PRONOUNCEMENT 30-01-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-13, KOLKATAS ORDER DATED 02.07.2018 PASSED IN CASE NO. 22/CIT(A)-13/W-45(2)/KOL/2015-16 INVOL VING PROCEEDINGS U/S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. I COME TO FORMER ISSUE OF VALIDITY OF RE-OPENING IN QUESTION. THIS ASSESSEE HAD FILED HER RETURN FOR THE IMPUGNED ASSESSMENT YEAR O N 28.07.2009 DECLARING TAXABLE INCOME OF 3,99,390/-. THE SAME STOOD SUMMARILY PROCESSED. THE ASSESSING OFFICER THEREAFTER FORMED REASONS TO BELIEVE AS PER THE INV ESTIGATION WINGS REPORT THAT THE ASSESSEE HAD TAKEN A LOSS ENTRY FROM M/S MAHASAGAR GROUP. THIS ALLEGED LOSS ENTRY INVOLVED AN AMOUNT OF 2,71,500/-. THE ASSESSING OFFICER ISSUED SEC. 148 N OTICE DATED 03.02.2014. THE ASSESSEE IN TURN REQUESTED TO TREAT HER ORIGINAL RETURN AS THE ONE FILED IN FURTHERANCE TO SEC. 148 PROCEEDINGS. THE ASSESSI NG OFFICER THEREAFTER COMPLETED RE- ASSESSMENT ON 28.02.2015 DISALLOWING THE SUM IN QUE STION OF 28,891/- U/S 14A R.W.S. RULE 8D(2) IN THE NATURE OF DIRECT AND ADMINISTRATI VE EXPENDITURE TO THE TUNE OF ITA NO.2031/KOL/2018 A.Y. 2009-10 DIPTI MEHTA VS. ITO WD-45(2), KOL. PAGE 2 2,048/- AND 26,843/-; RESPECTIVELY IN RELATION TO EXEMPT INCOM E OF 29,911/-. THE CIT(A) HAS DECLINED ASSESSEES BOTH GROUNDS CHALLEN GING VALIDITY OF RE-OPENING AS WELL AS CORRECTNESS OF ABOVE STATED DISALLOWANCE(S) ON MERITS. 3. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L SUBMISSIONS. THE ASSESSEES FORMER SUBSTANTIVE GROUND CHALLENGES VALIDITY OF RE -OPENING. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE ASSESSING OFFICER HAD RE -OPENED THE ASSESSEES CASE RECORDING THAT SHE HAD AVAILED AN ACCOMMODATION ENT RY OF LOSS AMOUNTING TO 2,71,500- WHEREAS HE DISALLOWED THE AMOUNT IN QUEST ION OF 28,891/- ONLY DURING THE COURSE OF RE-ASSESSMENT (SUPRA). HON'BLE MUMBAI HIG H COURTS DECISION IN CIT VS. JET AIRWAYS (I) LTD (2011) 331 ITR 236 (BOM)., RANBAXY LABORATORIES VS. CIT (2011) 366 ITR 136 (DEL) AND ACIT VS. MAJOR DEEPAK MEHTA (2012) 336 ITR 136 (CHHATTISGARH) HOLD THAT SUCH A RE-ASSESSMENTS NOT MAKING ANY ADDITION QUA THE SPECIFIED REASONS OF RE-OPENING BUT ON OTHER ISSUES ARE NOT SUSTAINABLE. I THEREFORE QUASH THE IMPUGNED RE-ASSESSMENT FOR THIS SOLE REAS ON. 3. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 30/01/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS - 30/01/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DIPTI MEHTA, 161/1 M.G. ROAD, GROUND FL, KOLKAATA-007 2. /RESPONDENT-ITO WRD-45(2), 3, GOVT. PLACE, KOLKATA- 101 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ',