Bhanu Vyapaar Pvt. Ltd., Kolkata V. ITO, Ward-6(4), Kolkata, Kolkata

ITA 2084/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1061 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-05-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 14-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALYAN NATH RESPONDEN
• Assessee Lawyers: S K AGARWAL
• Keywords: Reopening of assessment; Difference of opinion; Assessment record; Change of opinion
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, KOLKATA BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 2084/KOL/2014 ASSESSMENT YEAR: 2006-07 BHANU VYAPAAR PVT. LTD......................APPELLANT [PAN : AABCB 1334 Q] I.T.O, WARD 6(4), KOLKATA......RESPONDENT APPEARANCES BY: SHRI S.K. AGARWAL, FCA, APPEARED ON BEHALF OF THE APPELLANT. SHRI KALYAN NATH, ADDL. CIT(DR), APPEARED ON BEHALF OF THE RESPONDENT.. DATE OF CONCLUDING THE HEARING : OCTOBER 23, 2017 DATE OF PRONOUNCING THE ORDER : NOVEMBER 10, 2017 ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-CENTRAL-I, KOLKATA [HEREINAFTER THE LD. CIT(A)], DATED 17.09.2014 PASSED U/S 143(3)/147 OF THE INCOME TAX ACT, 1961 (THE ACT) FOR THE ASSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS: 1. THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THAT THE REOPENING OF ASSESSMENT PROCEEDINGS U/S 147 OF THE IT ACT IS VALID AND THAT THERE WAS NO CHANGE OF OPINION OF THE AO. 2. THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF THE PROVISION FOR LOSS ON DERIVATIVE TRANSACTIONS AMOUNTING TO RS.76,62,632/-. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD FRESH GROUND AND/OR MODIFY OR SUBSTITUTE ANY GROUNDS BEFORE OR AT THE TIME OF HEARING. 2. WHEN THE MATTER HAD COME BEFORE THE BENCH ON EARLIER OCCASIONS, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WAS DIRECTED TO VERIFY THE ASSESSMENT RECORDS AND CONFIRMED WHETHER THE ALLEGATIONS OF THE ASSESSEE THAT THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT U/S 147 OF THE ACT WAS NOT FURNISHED TO THE ASSESSEE WAS CORRECT OR NOT. 2 BHANU VYAPAAR PVT. LTD I.T.A. NO. 2084/KOL/2014 ASSESSMENT YEAR: 2006-07 3. TODAY WHEN THE MATTER CAME UP FOR HEARING, THE LD. DR PRODUCED THE ASSESSMENT RECORDS. HE COULD NOT PRODUCE ANY RECORD OR DOCUMENT TO SHOW THAT A COPY OF THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT HAS BEEN SERVED ON THE ASSESSEE BEFORE THE COMPLETION OF THE ASSESSMENT ON 22.12.2010, DESPITE REPEATED REQUESTS BY THE ASSESSEE TO THE A.O FOR FURNISHING THE SAME. UNDER THESE CIRCUMSTANCES, AS THE LD. A.O HAS FAILED TO GIVE A COPY OF THE REASONS RECORDED FOR REOPENING TO THE ASSESSEE DESPITE APPLICATION FOR THE SAME, THE ASSESSMENT IS TO BE HELD AS BAD IN LAW IN VIEW OF THE FOLLOWING JUDGMENTS: 1. GKN DRIVESHAFTS (INDIA) LTD VS. ITO & OTHERS (259 ITR 19) SC WHEN A NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICE IS TO FILE RETURN AND IF HE SO DESIRES, TO SEEK REASONS FOR ISSUING NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, THE NOTICE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE INSTANT CASE, AS THE REASONS HAVE BEEN DISCLOSED IN THESE PROCEEDINGS, THE ASSESSING OFFICER HAS TO DISPOSE OF THE OBJECTIONS, IF FILED, BY PASSING A SPEAKING ORDER BEFORE PROCEEDING WITH THE ASSESSMENT IN RESPECT OF THE FIVE ASSESSMENT YEARS. 3. CIT VS VIDESH SANCHAR NIGAM LTD. (340 ITR 66) BOMBAY HC IT WAS HELD THAT FAILURE TO FURNISH THE RECORDED REASONS FOR ISSUE OF REOPENING NOTICES TO THE ASSESSEE BEFORE COMPLETION OF THE ASSESSMENT PROCEEDINGS WOULD MAKE THE REASSESSMENT ORDER PASSED IN PURSUANCE OF SUCH A NOTICE BAD IN LAW. 4. APPLYING THE PROPOSITIONS LAID DOWN IN THIS CASE LAWS AND CONSIDERING THE FACTS OF THE CASE, WE HOLD THAT THE REASSESSMENT ORDER IS BAD IN LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 10 TH NOVEMBER, 2017. SD/- SD/- [ S.S. VISWANETHRA RAVI ] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 10.11.2017 RS, SPS 3 BHANU VYAPAAR PVT. LTD I.T.A. NO. 2084/KOL/2014 ASSESSMENT YEAR: 2006-07 COPY OF THE ORDER FORWARDED TO: 1 . BHANU VYAPAAR PVT. LTD., 687 ANANDAPUR, E M BYPASS, KOLKATA 700107. 2 . ITO-W-6(4), AYAKAR BHAWAN, P-7, CHOWRINGHEE SQ., KOLKATA 700 069. 3. CIT(A)- 4. CIT- , 5. CIT(DR), TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES