DCIT, Circle - 6(1), , Kolkata V. CFL Capital Financial Services Ltd., , Kolkata

ITA 2390/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8283 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1995-1996
• Appeal Filed On: 16-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Keywords: Set aside
• Section: 143(3); 153A; 250; 264; 72; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.2390/KOL/2018 ( / ASSESSMENT YEAR: 1995-96) DCIT, CIRCLE-6(1), KOLKATA VS. CFL CAPITAL FINANCIAL SERVICES LTD. THE OFFICIAL LIQUIDATOR (IN RESPECT OF CFL CAPITAL FINANCIAL SERVICES LTD.), 9, OLD POST OFFICE STREET, WEST BENGAL-700001 ./ ./PAN/GIR NO.: AABCC 0704 F (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI RADHEY SHYAM, CIT RESPONDENT BY : NONE / DATE OF HEARING : 11/11/2019 /DATE OF PRONOUNCEMENT : 22/01/2020 / O R D E R DR. A.L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERT AINING TO ASSESSMENT YEAR 1995-96, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-20, KOLKATA IN APPEAL NO. CIT(A), KOLKATA- 20/10090/2007-08, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY TH E ASSESSING OFFICER U/S 144 / 254 / 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 02/07/2007. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCASION AND LD . DEPARTMENTAL REPRESENTATIVE(DR), WAS PRESENT FOR THE APPELLANT R EVENUE. IN THE ABSENCE OF ANY CFL CAPITAL FINANCIAL SERVICES LTD. ITA NO.2390/KOL/2018 ASSESSMENT YEAR:1995-96 P PP PA AA AG GG GE EE E | || | 2 22 2 APPEARANCE BY THE ASSESSEE, THE APPEAL IS BEING DIS POSED OF EX PARTE QUA THE ASSESSEE, AFTER HEARING LD. DR FOR THE REVENUE ON M ERITS IN TERMS OF RULE 24 OF THE INCOME TAX APPELLATE, TRIBUNAL, RULES, 1963. 3. THE APPEAL FILED BY THE REVENUE IS BARRED BY LIM ITATION BY 41 DAYS. THE REVENUE FILED PETITION FOR CONDONATION OF DELAY. WE HAVE HEARD BOTH THE PARTIES ON THIS PRELIMINARY ISSUE AND HAVING REGARD TO THE REA SONS GIVEN IN THE PETITION FOR CONDONATION OF DELAY. WE CONDONE THE DELAY AND ADMI T THE APPEAL OF REVENUE FOR HEARING. 4. THE GROUNDS OF APPEAL RAISED BY THE REVENUE READ S AS FOLLOWS: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED BY HOLDING THAT THIS CASE FALLS UN DER PURVIEW OF SECTION 153(2A) AND NOT UNDER SECTION 153(3)(II). 2. WHETHER THE ORDER OF LD. CIT(A) IS TENABLE IN AB SENCE OF ISSUE OF NOTICE BY HIM U/S 250(1) TO THE ASSESSING OFFICER. 3. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DELE TE AND MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 5. WE NOTE THAT THE LD. CIT(A) HAS ADJUDICATED THE ISSUE IN RESPECT OF LIMITATION U/S 153A OBSERVING THE FOLLOWINGS: 5.1. FOREMOST IS THE ISSUE OF WHETHER THE IMPUGNED ASSESSMENT ORDER HAD BEEN BARRED BY LIMITATION U/S 153. 5.1.1 THIS BEING THE CASE OF THE HONBLE ITAT BY IT S ORDER DATED 13.08.2003 REMANDING THE ISSUE TO THE AO FOR FRESH ADJUDICATIO N - THUS IT WAS THE CASE OF LIMITATION U/S 153(2A)) - WHICH MANDATE WAS THAT TH E ASSESSMENT ORDER BE COMPLETED BEFORE THE EXPIRY OF 1 YEAR FROM THE END OF THE FINANCIAL VEAR IN WHICH THE ORDER U/S 254 IS RECEIVED BY THE COMMISSIONER. THUS, IN THIS INSTANT CASE, THE ASSESSMENT ORDER WA S TO BE MADE BY 31.03.2005. WHEREAS THE IMPUGNED ASSESSMENT ORDER WAS MADE 2 YE ARS LATER - ON 02.07.2007. EVEN THE NOTICE FOR HEARING WAS ISSUED AFTER THE PE RIOD FOR MAKING THE ORDER OF ASSESSMENT HAD ALREADY BEEN TIME-BARRED - BEING NOT ICE DATED 12.04.2007. 5.1.2. I HAVE TODAY ALSO PASSED THE APPEAL ORDER FO R THE AY 1998-99 ON THE LIKE- WISE ASSESSMENT U/S 144/254. THAT ORDER TOO THE ACI T AO HAD MADE BY ON THE CFL CAPITAL FINANCIAL SERVICES LTD. ITA NO.2390/KOL/2018 ASSESSMENT YEAR:1995-96 P PP PA AA AG GG GE EE E | || | 3 33 3 SAME DATE AS THIS IMPUGNED ORDER ON 02.07.2007. THU S IT IS OBVIOUS THAT WHEN THE PROCEEDINGS U/S 143(3)/254 WERE TAKEN UP FOR THE AY 1998-99, THAT THE ACIT AO REALIZED FROM THE RECORDS THAT THERE WAS ALSO TO BE MADE ASSESSMENT U/S 143(3)/254 FOR THIS AY 1995-96 AND ALSO 1996-97; BU T BY THEN ALREADY BARRED BY LIMITATION U/S 153(2A). 5.1.3. THE ACIT AO HAS TRIED TO TAKE REFUGE U/S 153 (3)(II) - BUT THOSE PROVISIONS ARE IN TOTALLY DIFFERENT CONTEXT, BEING IN THE CONT EXT OF CONSEQUENTIAL EFFECT. THIS IS NOT THE CASE HERE. AND, IN THE APPEAL SUBMISSIONS THE AR HAS RELIED ON THE FOLLOWING DECISION - WHICH DEALS ON THE ISSUE: [2005] 93 ITD 535 (KOLKATA)/[2005] 94 TTJ 169 (KOLK ATA) [2005] 93 ITD 535 (KOL.) IN THE ITAT KOLKATA BENCH B W.C. SHAW (P.) LTD. V. ASSISTANT COMMISSIONER OF INCOME-TAX K.K. GUPTA, ACCOUNTANT MEMBER AND C.L. SETHI, JUDIC IAL MEMBER IT (SS) APPEAL NO. 72 (KOL.) OF 2003 [BLOCK PERIOD 1-4-1986 TO 3-11-1995] JANUARY 31, 2005 SECTION 153, READ WITH SECTION 158BE, OF THE INCOME -TAX ACT, 1961 - ASSESSMENT - TIME-LIMIT FOR COMPLETION OF - BLOCK PERIOD 1-4-198 6 TO 3-11-1995 - WHETHER LIMITATION SPECIFIED IN SECTION 158BE IS LIMITATION FOR COMPLETING ASSESSMENT TO BE MADE BY ASSESSING OFFICER AND IT IS NOT A LIMITATIO N FOR MAKING A FRESH ASSESSMENT SETTING ASIDE OR CANCELLING ASSESSMENT IN PURSUANCE OF AN ORDER UNDER SECTION 250 OR 254 OR 263 OR 264 - HELD, YES - WHETHER FOR PURP OSE OF APPLICABILITY OF SECTION 153(2A), IT IS NOT NECESSARY THAT WHOLE ASSESSMENT SHOULD BE SET ASIDE TO COMPLETE SAME DE NOVO AND EVEN IF FRESH ASSESSMENT HAS TO BE MADE IN RESPECT OF ANY ONE ISSUE IN PURSUANCE OF ORDER UNDER SECTION 250 OR 25 4 OR 263 OR SECTION 264, PROVISIONS OF SECTION 153(2A) WOULD BE APPLICABLE F OR PURPOSE OF COMPLETING FRESH ASSESSMENT ON SAID ISSUE WHICH HAS BEEN SET ASIDE F OR FRESH ADJUDICATION - HELD, YES - WHETHER TIME-LIMIT FOR MAKING FRESH ASSESSMEN T REFERRED TO IN SECTION 153(2A) IS NOT LIFTED BY SECTION 153(3) - HELD, YES - WHETHER WHERE TRIBUNAL DIRECTED ASSESSING OFFICER TO DECIDE MATTER AFRESH BUT THERE WAS NO SPECIFIC FINDING OR DIRECTION ON ISSUES INVOLVED THEREIN, PR OVISIONS OF SECTION 153(3) WOULD NOT BE APPLICABLE - HELD, YES - WHETHER, THEREFORE, FRESH ASSESSMENT ORDER OF ASSESSING OFFICER DATED 28-3-2003 IN PURSUANCE OF T RIBUNALS ORDER DATED 1-6- 2000 WOULD BE BARRED BY LIMITATION - HELD, YES 5.1.4. THUS, THE IMPUGNED ASSESSMENT ORDER HAD ALRE ADY BEEN BARRED BY LIMITATION. 6. CONCLUSION: THE APPEAL SUCCEEDS . CFL CAPITAL FINANCIAL SERVICES LTD. ITA NO.2390/KOL/2018 ASSESSMENT YEAR:1995-96 P PP PA AA AG GG GE EE E | || | 4 44 4 THUS, IN THIS INSTANT CASE, THE ASSESSMENT ORDER WA S TO BE MADE BY 31.03.2005.WHEREAS THE IMPUGNED ASSESSMENT ORDER WA S MADE 2 YEARS LATER - ON 02.07.2007. EVEN THE NOTICE FOR HEARING WAS ISSUED AFTER THE PERIOD FOR MAKING THE ORDER OF ASSESSMENT HAD ALREADY BEEN TIME-BARRED - BEING NOTICE DATED 12.04.2007. WE NOTE THAT THE LD. CIT(A) HAS PASSED A REASONED O RDER CONSIDERING ALL THE FACTS OF THE CASE AND LAW APPLICABLE TO THE FACTS THEREFO RE IT DOES NOT REQUIRE ANY INTERFERENCE. THAT BEING SO, WE DECLINE TO INTERFER E IN THE ORDER PASSED BY THE LD. CIT(A), HIS ORDER ON THIS ISSUE, IS HEREBY UPHELD A ND THE GROUNDS OF APPEAL RAISED BY THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 22.0 1.2020 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 22/01/2020 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. DCIT, CIRCLE-6(1), KOLKATA 2. CFL CAPITAL FINANCIAL SERVICES LTD. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES