ACIT, CC-3(4), Kolkata, Kolkata V. Sri Bijay Kumar Garodia, Kolkata

ITA 2281/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1679 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 30-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N O N E
• Assessee Lawyers: HARSH VARDHAN BHARDWAJ
• Section: 143(3); 153A; 132

Judgement Text

1 ITA NO.2281 & 2230/KOL/2014 BIJAY KUMAR GARODIA, AY 2010-11 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE .., /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M. BALAGANESH , AM] I.T.A. NO. 2281/KOL/2014 ASSESSMENT YEAR: 2010-11 ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-3(4), KOLKATA. VS. BIJAY KUMAR GARODIA (PAN: ACCPG4986F) APPELLANT RESPONDENT & I.T.A. NO. 2230/KOL/2014 ASSESSMENT YEAR: 2010-11 BIJAY KUMAR GARODIA VS. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-XXV, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 14.06.2017 DATE OF PRONOUNCEMENT 16.08.2017 FOR THE REVENUE N O N E FOR THE ASSESSEE SHRI HARSH VARDHAN BHARDWAJ, FCA ORDER PER SHRI A.T.VARKEY, JM BOTH THESE CROSS APPEALS FILED BY THE REVENUE AND T HE ASSESSEE AGAINST THE ORDER OF LD. CIT(A, CENTRAL-III, KOLKATA DATED 31.12.2014 FO R AY 2010-11. NONE APPEARED ON BEHALF OF THE REVENUE. AFTER HEARING THE LD. AR AN D CONSIDERING THE MATERIAL AVAILABLE ON RECORD, WE DISPOSE OF THE APPEAL EX PARTE QUA THE R EVENUE. 2. AT THE OUTSET ITSELF, THE LEGAL ISSUE HAS BEEN R AISED BY THE LD. AR OF THE ASSESSEE WHICH HAS BEEN ADMITTED IN THE LIGHT OF THE HONBLE SUPREME COURT DECISION IN THE CASE OF NATIONAL THERMAL POWER CORPORATION LTD. VS. CIT REP ORTED IN (1998) 229 ITR 383 (SC). THE LD. AR SHRI HARSH VARDHAN BHARDWAJ, FCA BROUGHT TO OUR NOTICE THAT A SEARCH WAS CONDUCTED ON 18.09.2012 ON THE PREMISE OF THE ASSES SEE, THEREFORE, ACCORDING TO HIM, THE 2 ITA NO.2281 & 2230/KOL/2014 BIJAY KUMAR GARODIA, AY 2010-11 ASSESSMENT FOR THE RELEVANT YEAR UNDER CONSIDERATIO N I.E. 2010-11 GOT ABATED ON THE DATE OF SEARCH I.E. ON 18.09.2012. AS PER SECTION 153A OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), WHERE A SEARCH IS INITIA TED U/S. 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER 31.05.2003 THE ASSESSMENT CAN BE DONE ONLY UNDER THIS PROVISION OF THE ACT . AS PER THE SECOND PROVISO TO SECTION 153A (1) OF THE ACT, THE ASSESSMENT OR REAS SESSMENT, IF ANY, RELATING TO ANY ASSESSMENT FALLING WITHIN THE PERIOD OF SIX ASSESSM ENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CO NDUCTED OR REQUISITION IS MADE AND WHICH IS PENDING ON THE DATE OF INITIATION OF THE SEARCH U/S. 132 OF THE ACT OR MAKING OR REQUISITION U/S. 132A OF THE ACT, AS THE CASE MAY BE, SHALL ABATE . IN THE LIGHT OF THE AFORESAID PRESCRIPTION OF LAW AND SINCE THE SEARCH HAS HAPPEN ED ON 18.09.2012 AND THE ASSESSMENT YEAR UNDER CONSIDERATION AY 2010-11 WAS PENDING ON THE DATE OF SEARCH (WHICH CULMINATED IN THE ASSESSMENT U/S. 143(3) OF THE ACT ON 26.02.2 013) STOOD ABATED AND THE ASSESSMENT FOR THE RELEVANT ASSESSMENT YEAR COULD HAVE BEEN FRAMED ONLY U/S. 153A OF THE ACT. IN THE LIGHT OF THE SECOND PROVISO TO SECTION 153A(1) OF THE ACT , THE ASSESSMENT FOR AY 2010-11 WHICH WAS UNDISPUTEDLY PENDING ON THE DATE OF SEARCH I.E. ON 18.09.2012 AND BY OPERATION OF LAW STOOD ABATED ON THE DATE OF SEARCH. THEREFORE, WE HAVE NO HESITATION IN HOLDING THE ASSESSMENT FRAMED U/S. 143(3) OF THE ACT BY ORDER D ATED 26.02.2013 IS NON EST IN THE EYES OF LAW AND, THEREFORE, IT STANDS QUASHED. 3. SINCE WE HAVE QUASHED THE ASSESSMENT FRAMED U/S. 143(3) OF THE ACT, WHICH GOES TO THE ROOT OF THE MATTER, THE APPEAL OF THE REVENUE N EED NOT BE ADJUDICATED AND, THEREFORE, THE SAME IS DISMISSED. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED ON THE LEGAL ISSUE RAISED BEFORE US AND THE OTHER GROUNDS RAISED IS ACADEMIC WHICH WE ARE N OT INCLINED TO ADJUDICATE AND THAT OF THE REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.08.2017 SD/- SD/- (M. BALAGANESH) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16TH AUGUST, 2017 JD.(SR.P.S.) 3 ITA NO.2281 & 2230/KOL/2014 BIJAY KUMAR GARODIA, AY 2010-11 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT DCIT, C.C-XXV/ACIT, CENTRAL CIRCLE-3(4) , KOLKATA 2 RESPONDENT SHRI BIJAY KUMAR GARODIA, CF-366, SALT LAKE CITY, SECTOR- 1, KOLKATA-700 064. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BE NCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY