Shabbir Taherbhai Tardwala, Kolkata V. ITO, Ward-36(2), Kolkata, Kolkata

ITA 2118/KOL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99760 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 18-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GOURI PRASAD SEN
• Keywords: Reopening of assessment; Unexplained investment
• Section: 147; 69; 148; 143(3)

Judgement Text

I.T.A. NO . 2118 / KOL ./20 1 4 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P. M . JAGTAP , ACCOUNTANT MEMBER I.T.A. NO. 2118 / KOL / 20 1 4 ASSESSMENT YEAR : 200 8 - 20 0 9 SHABBIR TAHERBHAI TARDIWALA,......................... ..........APPELLANT C/O. OVERSEAS COMMERCIAL CORPORATION, 24, N.S. ROAD, KOLKATA - 700 001 [PAN : ACXPT 4518 K] - VS. - I NCOME TAX OFFICER , ............................ .......... . ..........RESPONDENT WARD - 36 ( 2 ) , KOLKATA, INCOME TAX OFFICE, 110, SHANTI PALLY, AAYAKAR BHAWAN, 8 TH FLOOR, KOLKATA - 700 107 APPEARANCES BY: SHRI GOURI PRASAD SEN, ADVOCATE, FOR THE ASSESSEE S HRI AMITAVA BHATTACHARYA, JCIT, SR. D.R. , FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : SEPTEMBER 08 , 2 01 5 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 09 , 201 5 O R D E R TH IS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - X X , KOLKATA D ATED 04 . 0 9 .20 1 4 FOR THE ASSESSMENT YEAR 200 8 - 0 9 ON THE FOLLOWING GROUNDS: - ( 1 ) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) - XX, KOLKATA GROSSLY ERRED IN LAW IN NOT DEALING WITH ON DISPOSING GROUND NO. (I) CHALLENGING THE LEGAL VALIDITY OF THE ASSESSMENT COMPLETED EVEN IGNORING THE STATEMENT OF FACTS ANNEXED TO THE APPEAL PAPERS, A MAND ATORY REQUIREMENT UNDER LAW FOLLOWED BY WRITTEN SUBMISSION IN COURSE OF HEARING. ( 2 ) THAT IN VIEW OF GROUND NO. 1 , THE ORDER OF CIT(A) IS LIABLE TO BE QUASHED. I.T.A. NO . 2118 / KOL ./20 1 4 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 2 OF 4 ( 3 ) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - XX, KOLKATA GROSSLY ERRED IN LAW IN CONFIRMING THE ITO S ADDITION OF RS.10,00,000/ - REPRESENTING INVESTMENT IN PUNE PROPERTY AS UNDISCLOSED INVESTMENT OF THE ASSESSEE BY WAY OF DISMISSING THE APPEAL. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL, WHO FILED HIS RETURN OF IN COME FOR THE YEAR UNDER CONSIDERATION ON 02.12.2008 DECLARING TOTAL INCOME OF RS.1,21,176/ - . IN THE ASSESSMENT ORIGINALLY COMPLETED UNDER SECTION 143(3) BY AN ORDER DATED 04.11.2010, THE INCOME AS DECLARED BY THE ASSESSEE WAS ACCEPTED BY THE ASSESSING OFFI CER. SUBSEQUENTLY THE SAID ASSESSMENT WAS REOPENED BY THE ASSESSING OFFICER AND A NOTICE UNDER SECTION 148 WAS ISSUED BY HIM AFTER RECORDING THE REASONS. IN RESPONSE TO THE SAID NOTICE, NO RETURN OF INCOME WAS FILED BY THE ASSESSEE AND, THEREFORE, THE RETU RN FILED BY THE ASSESSEE ORIGINALLY ON 02.12.2008 WAS TREATED BY THE ASSESSING OFFICER AS THE RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148. THEREAFTER THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 147 WAS COMPLETED BY THE ASSESSING OFFI CER VIDE ORDER DATED 30.11.2012 BY MAKING AN ADDITION OF RS.10,00,000/ - TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED INVESTMENT FOUND TO BE MADE BY THE ASSESSEE IN THE PROPERTY. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER UNDER S ECTION 143(3) READ WITH SECTION 147, AN APPEAL WAS PREFERRED BY THE CIT(APPEALS) CHALLENGING THE VALIDITY OF THE SAID ASSESSMENT AS WELL AS DISPUTING THE ADDITION MADE THEREIN UNDER SECTION 69 ON ACCOUNT OF UNEXPLAINED INVESTMENT ON MERIT. BEFORE THE CIT(A PPEALS), IT WAS SUBMITTED BY THE ASSESSEE THAT THE REASONS RECORDED FOR REOPENING THE ASSESSMENT HAD NOT BEEN FURNISHED BY THE ASSESSING OFFICER INSPITE OF SPECIFIC REQUEST MADE IN THIS REGARD. IT WAS CONTENDED THAT THE ASSESSING OFFICER WAS DUTY BOUND TO FURNISH THE REASONS RECORDED BY HIM TO THE ASSESSEE AS PER THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF G.K.N. DRIVE SHAFTS (INDIA) LTD. VS. - ITO REPORTED IN 259 ITR 19 AND THE FAILURE OF THE ASSESSING OFFICER TO COMPLY WITH THIS REQUIREMENT M ADE THE I.T.A. NO . 2118 / KOL ./20 1 4 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 3 OF 4 ASSESSMENT PASSED BY HIM UNDER SECTION 143(3) READ WITH SECTION 147 TO BE INVALID. THE CIT(APPEALS) DISPOSED OF THE APPEAL FILED BY THE ASSESESE VIDE HIS APPELLATE ORDER DATED 0 4 .0 9 .2014, WHEREIN HE DID NOT DEAL WITH THIS PRELIMINARY ISSUE SPECIFIC ALLY RAISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 143(3) READ WITH SECTION 147 , A LTHOUGH HE DECIDED THE ISSUE RAISED BY THE ASSESSEE CHALLENGING THE ADDITION OF RS.10,00,000/ - MADE UNDER SECT ION 69 ON MERITS AGAINST THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT I S OBSERVED THAT A SPECIFIC REQUEST WAS MADE BY THE ASSESSEE TO THE ASSESSING OFFICER AFTER RECEIPT OF NOTICE UNDER SECTION 148 TO PROVIDE HIM THE REASONS RECORDED FOR REOPENING THE ASSESSMENT, BUT THE ASSESSING OFFICER FAILED TO FURNISH THE SAME AND THIS P OSITION EVIDENT FROM THE RECORD IS NOT DISPUTED EVEN BY THE LD. D.R. IN THE CASE OF KASHI NATH DUTT IN ITA NO. 1289/KOL/2011, A SIMILAR FACT SITUATION WAS OBTAINED, IN AS MUCH AS, THE REASONS FOR REOPENING THE ASSESSMENT HAD NOT BEEN PROVIDED BY THE ASSESS ING OFFICER TO THE ASSESSEE DESPITE A SPECIFIC REQUEST MADE IN THIS REGARD AND THE COORDINATE BENCH OF THIS TRIBUNAL VIDE ITS ORDER DATED 07.02.2014 RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION BY FOLLOWING THE PRINCIPLES LA ID DOWN BY THE HON BLE SUPREME COURT IN THE CASE OF G.K.N. DRIVE SHAFTS (INDIA) LTD. (SUPRA). RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF KASHI NATH DUTT (SUPRA), I RESTORE THE PRELIMINARY ISSUE RELATING TO THE VALIDITY OF THE ASSESSMENT TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FURNISH THE REASONS RECORDED FOR THE REOPENING OF ASSESSMENT TO THE ASSESSEE AND DECIDE THE SAME AFTER TAKING INTO CONSIDERATION THE OBJECTIONS RAISED BY THE ASSESS EE IN THE LIGHT OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF G.K.N. DRIVE SHAFTS (INDIA) LTD. (SUPRA). I.T.A. NO . 2118 / KOL ./20 1 4 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 4 OF 4 5. THE OTHER ISSUE INVOLVED IN THIS APPEAL RELATING TO THE ADDITION OF RS.10,00,000/ - UNDER SECTION 69 OF THE ACT IS LEFT OPEN WITH THE L IBERTY TO THE ASSESSEE TO RAISE THE SAME AGAIN BY WAY OF AN APPEAL BEFORE THE CIT(APPEALS) IF HE FAILS TO SUCCEED O N THE PRELIMINARY ISSUE RELATING TO THE VALIDITY OF THE ASSESSMENT BEFORE THE ASSESSING OFFICER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSE E IS TREATED A S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 09 , 2015. SD/ - (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA , THE 9 TH D AY OF SEPTEMBER , 201 5 COPIES TO : (1) SHABBIR TAHERBHAI TARDIWALA, C/O. OVERSEAS COMMERCIAL CORPORATION, 24, N.S. ROAD, KOLKATA - 700 001 (2) INCOME TAX OFFICER, WARD - 36(2), KOLKATA, INCOME TAX OFFICE, 110, SHANTI PALLY, AAYAKAR BHAWAN, 8 TH FLOOR, KOLKATA - 700 107 (3) COMMISSIONER OF INCOME - TAX (APPEALS) - XX, K OLKATA (4) COMMISSIONER OF INCOME TAX , KOLKATA ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR , INCOME TAX APPELLATE TRIBUNAL , K OLKATA B ENCHES, KOLKATA LAHA/SR. P.S .