Smt. Meena Mehta, Kolkata V. ITO, Ward - 35(4), Kolkata , Kolkata

ITA 2306/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1561 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 10-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL
• Assessee Lawyers: ANIKESH BANERJEE
• Keywords: Reopening of assessment
• Section: 148

Judgement Text

1 ITA NO. 2306/KOL/2017 ASSESSMENT YEAR: 2009-2010 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 2306/KOL./2017 ASSESSMENT YEAR: 2009-2010 SMT. MEENA MEHTA,.................................. .............................APPELLANT C/O. M/S. SUNNY SALES, 29/1C, BENTINCK STREET, KOLKATA-700 001 [PAN: AESPM 5579 C] -VS.- INCOME TAX OFFICER,................................ .................................. RESPONDENT WARD-35(4), KOLKATA, AAYAKAR BHAWAN POORVA, 8 TH FLOOR, 110, SHANTI PALLY, KOLKATA-700 107 APPEARANCES BY: SHRI ANIKESH BANERJEE, ADVOCATE, FOR THE ASSESSEE SHRI P.K. MONDAL, ADDL. CIT, D.R., FOR THE DEPARTME NT DATE OF CONCLUDING THE HEARING : FEBRUARY 21, 2018 DATE OF PRONOUNCING THE ORDER : FEBRUARY 23, 2018 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA DA TED 04.08.2017. 2. THE RELEVANT FACTS OF THE CASE GIVING RISE TO TH IS APPEAL ARE THAT THE ASSESSEE IS AN INDIVIDUAL, WHO FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ORIGINALLY ON 29.07.2009 DECLAR ING TOTAL INCOME OF RS.3,29,140/-. ALTHOUGH THE SAID RETURN WAS INITIAL LY ACCEPTED BY THE ASSESSING OFFICER UNDER SECTION 143(1), HE SUBSEQUE NTLY REOPENED THE ASSESSMENT AND AFTER RECORDING THE REASONS, A NOTIC E UNDER SECTION 148 WAS ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 27.05.2014. IN 2 ITA NO. 2306/KOL/2017 ASSESSMENT YEAR: 2009-2010 REPLY, A LETTER WAS FILED BY THE ASSESSEE REQUESTIN G THE ASSESSING OFFICER TO TREAT THE RETURN FILED BY HER ORIGINALLY ON 29.0 7.2009 AS THE RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148. THEREAFTER THE ASSESSMENT UNDER SECTION 143(3)/147 WAS COMPLETED B Y THE ASSESSING OFFICER VIDE AN ORDER DATED 29.02.2016 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.6,79,140/- AFTER MAKING THE ADDI TION OF RS.3,50,000/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF D EEMED DIVIDEND UNDER SECTION 2(22)(E) OF THE ACT. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3)/147, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE VALIDITY OF THE ASSESS MENT MADE BY THE ASSESSING OFFICER UNDER SECTION 143(3)/147 AS WELL AS DISPUTING THE ADDITION MADE THEREIN UNDER SECTION 2(22)(E) AND SI NCE THE SUBMISSIONS MADE BY THE ASSESSEE IN SUPPORT OF HER CASE ON THES E TWO ISSUES WERE NOT FOUND ACCEPTABLE BY HIM, THE LD. CIT(APPEALS) DISMI SSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APP EALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. IN GROUNDS NO. 1 TO 7 TAKEN IN HER APPEAL, THE A SSESSEE HAS RAISED THE PRELIMINARY ISSUE RELATING TO THE VALIDITY OF A SSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 143(3)/147. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THIS PRELIMINARY ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILA BLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, AFTE R OBTAINING COPY OF THE REASONS RECORDED BY THE ASSESSING OFFICER, SPECIFIC OBJECTIONS WERE RAISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF REOPENI NG OF ASSESSMENT VIDE LETTER DATED 10.06.2014. HE HAS INVITED MY ATTENTIO N TO THE COPY OF THE SAID LETTER PLACED AT PAGES NO. 9 & 10 OF THE PAPER BOOK AND SUBMITTED THAT SPECIFIC OBJECTIONS RAISED BY THE ASSESSEE IN THE SAID LETTER WERE NEITHER CONSIDERED NOR DISPOSED OF BY THE ASSESSING OFFICER BEFORE PROCEEDING TO COMPLETE THE REASSESSMENT UNDER SECTI ON 143(3)/147 OF 3 ITA NO. 2306/KOL/2017 ASSESSMENT YEAR: 2009-2010 THE ACT. RELYING ON THE DECISION OF THE DIVISION BE NCH OF THIS TRIBUNAL IN THE CASE OF HARDWARE TRADING CORPORATION VS.- ACIT (ITA NO. 1993/KOL/2014 DATED 03.11.2017), HE HAS CONTENDED T HAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UN DER SECTION 143(3)/147 WITHOUT DISPOSING OF THE OBJECTIONS RAIS ED BY THE ASSESSEE CHALLENGING THE VALIDITY OF REOPENING IS BAD-IN-LAW AND THE SAME IS LIABLE TO BE CANCELLED. IT IS OBSERVED THAT THE FACTS INVO LVED IN THE CASE OF HARDWARE TRADING CORPORATION (SUPRA) WERE MATERIALL Y SIMILAR TO THE FACTS OF THE PRESENT CASE, INASMUCH AS THE SPECIFIC OBJECTIONS RAISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENT AFTER GOING THROUGH THE REASONS RECORDED WERE NEITHER CON SIDERED NOR DISPOSED OF BY THE ASSESSING OFFICER BY PASSING A S PEAKING ORDER. BY RELYING ON THE DECISION OF THE HONBLE SUPREME COUR T IN THE CASE OF G.K.N. DRIVESHAFT (INDIA) LIMITED VS.- CIT [259 ITR 19], THE TRIBUNAL HELD THAT THE REASSESSMENT ORDER PASSED BY THE ASSESSING OFFI CER WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY THE ASSESSEE IN RESPECT OF THE VALIDITY OF REOPENING WAS BAD-IN-LAW. IN THE CASE OF G.K.N. DRI VESHAFT (INDIA) LIMITED (SUPRA), IT WAS HELD BY THE HONBLE SUPREME COURT T HAT THE ASSESSEE ON RECEIPT OF REASONS RECORDED BY THE ASSESSING OFFICE R IS ENTITLED TO FILE OBJECTION TO THE ISSUE OF NOTICE UNDER SECTION 148 AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAID OBJECTION B Y PASSING A SPEAKING ORDER. RESPECTFULLY FOLLOWING THE DECISION OF THE H ONBLE SUPREME COURT IN THE CASE OF G.K.N. DRIVESHAFT (INDIA) LIMITED (S UPRA) AS WELL AS THE DECISION OF THE DIVISION BENCH OF THIS TRIBUNAL IN THE CASE OF HARDWARE TRADING CORPORATION (SUPRA), I HOLD THAT THE ASSESS MENT MADE BY THE ASSESSING OFFICER UNDER SECTION 143(3)/147 WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY THE ASSESSEE CHALLENGING THE V ALIDITY OF REOPENING WAS BAD-IN-LAW AND THE SAME IS LIABLE TO BE CANCELL ED. I ORDER ACCORDINGLY AND DECIDE THIS PRELIMINARY ISSUE IN FAVOUR OF THE ASSESSEE. 6. KEEPING IN VIEW THE DECISION RENDERED ABOVE ON T HE PRELIMINARY ISSUE CANCELLING THE ASSESSMENT MADE BY THE ASSESSI NG OFFICER UNDER SECTION 143(3)/147, THE ISSUES RAISED BY THE ASSESS EE IN GROUNDS NO. 8 & 4 ITA NO. 2306/KOL/2017 ASSESSMENT YEAR: 2009-2010 9 CHALLENGING THE ADDITION MADE BY THE ASSESSING OF FICER IN THE SAID ASSESSMENT HAVE BECOME INFRUCTUOUS AND I DO NOT CON SIDER IT NECESSARY OR EXPEDIENT TO DECIDE THE SAME. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD DAY OF FEBRUARY, 2018. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 23 RD DAY OF FEBRUARY, 2018 COPIES TO : (1) SMT. MEENA MEHTA, C/O. M/S. SUNNY SALES, 29/1C, BENTINCK STREET, KOLKATA-700 001 2) INCOME TAX OFFICER, WARD-35(4), KOLKATA, AAYAKAR BHAWAN POORVA, 8 TH FLOOR, 110, SHANTI PALLY, KOLKATA-700 107 (3) CIT(APPEALS)-10, KOLKATA, (4) CIT- , KOLKATA, (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/DDO, INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.