Shri Prabal Roy Choudhury, Silchar V. Income Tax Officer, Ward-2, Silchar

ITA 213/GTY/2019

AI Insights

The case involves Prabal Roy Choudhury, the appellant, who contested the assessment orders passed under sections 143(3) and 263 of the Income Tax Act, 1961, for the Assessment Year 2012-2013. Initially, an ex-parte assessment order was passed, which was later set aside by the Commissioner under section 263, directing a fresh assessment. The reassessment significantly increased the taxable income, which led to the appeal before the CIT(Appeals). The CIT(Appeals) dismissed the appeal on procedural grounds, stating that the order under section 263 could not be challenged at that level. The Tribunal found that the CIT(Appeals) had not properly addressed the grounds raised and directed a re-adjudication.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 129046 (ITAT-GUWAHATI)
• Duration Of Justice: 3 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-12-2022
• Assessment Year: misc
• Appeal Filed On: 12-05-2019
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order
• Section: 263; 144; 143(3); 143(1); 250; 143(2)

Judgement Text

ITA No. 213/GAU/2019 Assessment Year: 2012-2013 Prabal Roy Choudhury, Silchar 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA-GUWAHATI ‘e-COURT’, KOLKATA [Virtual Court Hearing] Before Shri Rajpal Yadav, Vice-President (KZ) & Dr. Manish Borad, Accountant Member I.T.A. No. 213/GAU/2019 Assessment Year: 2012-2013 Prabal Roy Choudhury,........................... Appellant Girish Road, Tarapur, Silchar-788003, Assam [PAN:AFOPC9393K] -Vs.- Income Tax Officer,.................................Respondent Ward-II, Silchar, Aayakar Bhawan, P.W.D. Road, Silchar, Assam-788001 Appearances by: Shri Anup Dutta, ITP, appeared as A/R on behalf of the assessee Shri N.T. Sherpa, JCIT, appeared on behalf of the Revenue Date of concluding the hearing : December 19, 2022 Date of pronouncing the order : December 19, 2022 O R A L O R D E R Per Rajpal Yadav, Vice-President (KZ):- The present appeal is directed at the instance of assesese against the order of ld. Commissioner of Income Tax (Appeals), Shillong dated 06.03.2019 passed for Assessment Year 2012-13. ITA No. 213/GAU/2019 Assessment Year: 2012-2013 Prabal Roy Choudhury, Silchar 2 2. Before adverting to the grounds of appeal taken by the assessee, we deem it appropriate to take note of the brief history, which reads as under:- The assessee has filed his return of income electronically on 21.11.2012 declaring total income of Rs.5,88,154/-. This return was originally processed under section 143(1) and thereafter taken for scrutiny by issuing a notice under section 143(2) of the Income Tax Act. The ld. Assessing Officer has passed an assessment order on 27.03.2015 under section 144 of the Income Tax Act. This was an ex-parte assessment order according to the best judgment of the ld. Assessing Officer. The ld. Assessing Officer has determined the taxable income of the assessee at Rs.18,96,150/-. 3. The ld. Commissioner took cognizance under section 263 of the Income Tax Act on the ground that assessment order is erroneous and prejudicial to the interest of revenue. Accordingly a notice under section 263 of the Income Tax Act was issued on 30 th December, 2016. Ultimately ld. Commissioner has passed an order under section 263 on 14.02.2017. He set aside the assessment order directing the ld. Assessing Officer to pass a fresh assessment order. ITA No. 213/GAU/2019 Assessment Year: 2012-2013 Prabal Roy Choudhury, Silchar 3 4. On receipt of the order passed under section 263, ld. Assessing Officer re-initiated the assessment proceeding in order to give logical end to the proceeding in terms of order under section 263. He ultimately passed an assessment order on 12.10.2017. He determined the taxable income of the assessee at Rs.1,12,73,490/-. 5. Dissatisfied with this assessment order, the assessee carried the matter in appeal before the ld. CIT(Appeals). It emerges out that in the grounds of appeal, the assessee has taken all those pleas, which ought to have been taken in an appeal before the ITAT for challenging order under section 263. The ld. CIT(Appeals) has dismissed the appeal of the assessee by observing that order of ld. Commissioner cannot be challenged before the ld. CIT(Appeals). The brief order reads as under:- “APPELLATE ORDER AND GROUNDS OF DECISION Instant appeal was filed on 16.11.2017 and is directed against order u/s 143(3)/263 of I.T. Act, 1961 passed by the ITO, Ward-2, Silchar on 12.10.2017. The appeal was filed with CIT(A)-1, Guwahati. The same was transferred to this jurisdiction vide letter T-1/Off-line Transfer/CIT(A)-I/GHY/2018-19/868 ated 04.12.2018. It was received on 10.12.2018. 2. Ground taken for adjudication is shown below:- (i) Seeking your natural justification for the selection of revision under section 263 as the notice is filled with malpractice facts and figures ITA No. 213/GAU/2019 Assessment Year: 2012-2013 Prabal Roy Choudhury, Silchar 4 and detection of the case is null and void. Thus seeking your natural justification. 3. In response to notice, Shri Anup Dutta, M. Com/ITP appeared as A/R. He gave written submission and explanation. 4. The ground of appeal is against the selection of the case for proceeding u/s 263. Even the statement of facts talked of order u/s 263 passed by the ld. Pr. CIT, Shillong in course of appeal hearing, the AO point4ed out that in the notice in which proceeding u/s 263 was initiated, facts and figures from return for AY 2011-12 were referred to. In the written submission filed, A/R requested that the income should be reassessed by me. 4.1. I have considered the matter. The CIT(A) cannot sit in judgment regarding the correctness or otherwise of order passed u/s 263. The correct forum to challenge the order u/s 263 is that of Hon’ble ITAT. The assessee has not taken up grounds against order of the AO consequent to setting aside of the assessment u/s 263. The appeal is clearly not maintainable. The same is dismissed. Order is passed u/s 250 of the Act”. 6. While impugning this order before the Tribunal, at Form No. 36, the assessee has narrated the details correctly but again repeated the mistake committed before the ld. 1 st Appellate Authority while raising the grounds of appeal. It may be due to at the end of the assessee for not having complete procedural knowledge. The ld. CIT(DR) submitted that appeal is not maintainable in the present forum because impugned order passed under section 263 was on 14.02.2017 and ITA No. 213/GAU/2019 Assessment Year: 2012-2013 Prabal Roy Choudhury, Silchar 5 this appeal is presented in 2019, therefore, it is time- barred. 7. We have duly considered the rival contentions and gone through the record carefully. Brief point is, that basically appeal is being filed against the order of ld. CIT(Appeals) vide which assessment order passed under section 143(3) read with section 263 was upheld. Due to some misconception of procedural aspect, assessee has taken all those pleas, which can enable it to challenge 263 Order. Sub-section (6) of section 250 provides that ld. 1 st Appellate Authority is required to bring the points in dispute from the record and thereafter decide the appeal after giving reasons on those points. In the present case, ld. CIT(Appeals) failed to follow that procedure, rather dismissed the appeal for the reasons that assessee has wrongly raised the grounds challenging the order under section 263. Apart from the above, if there is some inherent irregularity in raising the pleas in the grounds of appeal, then ld. CIT(Appeals) ought to have directed the assessee to amend those grounds instead of dismissing the appeal. Accordingly we allow this appeal of the assessee and remit the issues before the ld. CIT(Appeals) with a directions that ld. 1 st Appellate Authority re-adjudicate the issues emerging out from the assessment order after providing due opportunity of hearing to the assessee. ITA No. 213/GAU/2019 Assessment Year: 2012-2013 Prabal Roy Choudhury, Silchar 6 8. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 19.12.2022. Sd/- Sd/- (Manish Borad) (Rajpal Yadav) Accountant Member Vice-President Kolkata, the 19 th day of December, 2022 Copies to :(1) Shri Prabal Roy Choudhury, Girish Road, Tarapur, Silchar-788003, Assam (2) Income Tax Officer, Ward-II, Silchar, Aayakar Bhawan, P.W.D. Road, Silchar, Assam-788001 (3) Commissioner of Income Tax (Appeals), Shillong, (4) Commissioner of Income Tax- , (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.