Jayanta Saha, Kolkata V. ITO, Ward - 44(2) , Kolkata

ITA 2409/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6162 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-06-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 19-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDAR JCITSRDR
• Assessee Lawyers: SIDDHARTH JHOJHARIA
• Keywords: Reopening of assessment; Reassessment proceedings
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.2409/KOL/2018 ASSESSMENT YEAR:2012-13 JAYANATA SAHA 1, KALICHARAN GHOSH ROAD, KOLKATA-700050 [ PAN NO.AVKPS 4405 Q ] / V/S . INCOME TAX OFFICER WARD-44(2), 3,GOVT. PLACE, (WEST), KOLKATA-001 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SIDDHARTH JHOJHARIA, FCA /BY RESPONDENT SHRI SANKAR HALDAR, JCIT, SR-DR /DATE OF HEARING 27-06-2019 /DATE OF PRONOUNCEMENT 07-08-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-13, KOLKATAS ORDER DATED 23.07.2018 PASSED IN CASE NO.112/CIT(A)-13/KOL/2012-13, INVOLVING PRO CEEDINGS U/S. 147 R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT APPEARS AT THE OUTSET THAT ASSESSEES FORMER SUBSTANTIVE GROUND SEEKS TO QUASH THE RE-ASSESSMENT FRAMED IN THE INSTANT CASE FOR TH E REASON THAT THE ASSESSING OFFICE DID NOT FURNISH RE-OPENING DURING THE COURSE OF RE- ASSESSMENT. SUFFICE TO SAY, IT EMERGES FROM HIS PAPER BOOK ON RECORD THAT HE HAD R EQUESTED THE ASSESSING OFFICE ON 04.04.2014 TO SUPPLY THE RE-OPENING REASONS. 3. NEXT COMES HIS LETTER FILED BEFORE CIT(A) DATED 13.02.2017 IN FURTHERANCE TO THE ASSESSING OFFICES REMAND REPORT DATED 23.01.20 17 MAKING IT CLEAR NO PROVE HAS BEEN FOUND WHETHER THE REASON OF RE-OPENING OF THE CASE OF THE PETITIONER FOR ITA NO.2409/KIL/2018 A.Y.20 12-13 JAYANTA SAHA VS. ITO WD-44(2), KOL . PAGE 2 ASSESSMENT YEAR 2012-13 HAS BEEN INTIMATED TO THE A SSESSEE OR NOT. . MR. HALDER FAILS TO DISPUTE THIS CLINCHING FACTUAL POSITION. T HE SAME IS FURTHER SUBSTANTIATED FROM THE CIT(A)S CORRESPONDING DISCUSSION IN PAGES 12 A ND 13 OF THE LOWER APPELLATE ORDER. I NOTICE IN THIS BACKDROP OF FACTS THAT THE TRIBUNALS CO-ORDINATE BENCHS DECISION IN SRI BIKRAMJIT PAUL VS. DCIT CIRCLE-II KOLKATA IN ITA 1466/KOL/2016 DECIDED ON 01.03.2017 HAS QUASHED A SIMILAR PROCEEDINGS AS UND ER: 2. THE UNDISPUTED FACT IN THIS APPEAL IS THAT THE A S HAS NOT RECEIVED THE COPY OF THE REASONS RECORDED FOR REOPENING THEISM, DESPITE REQUEST FOR THE SAME FROM THE ASSESSING OFFICER. THE ISSUE RAISED IS WHETHER SUCH NON-FURNISHING OF THE REASONS FOR REOPENING, AFTER THE SPECIFIC REQUEST FOR THE SAME IS MADE BY THE ASSESSEE TO THE ASSESSING OFFICER, VITIATES THE REOPEN OF ASSESSMENT. 3. IN THE CASE OF CIT V. VIDESH SANCHAR NIGAM LTD. (2012) 340 ITR 66 (BOM.) THE TRIBUNAL FOLLOWING THE JUDGMENT OF BOMBAY HIGH CURT IN CIT V . FORMENTO RESORTS AND HOTELS LTD. ITA NO.71 OF 2006 DATED 27 TH NOVEMBER, 2006 HAS HELD THAT THOUGH THE REOPENING OF ASSESSMENT WAS WITHIN THREE YEARS FROM THE END OF RELEVANT ASS ESSMENT YEAR, SINCE THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT WERE NOT FURNISHED TO THE ASSESSEE TILL DATE THE COMPLETION OF ASSESSMENT, THE REASSESSMENT ORDER CANNOT BE UPHELD , MOREOVER, SPECIAL LEAVE PETITION FILED BY REVENUE AGAINST THE DECISION OF THIS COURT IN TH E CASE OF CIT V. FOMENTO RESORTS AND HOTELS LTD., HAS BEEN DISMISSED BY APEX COURT, VIDE ORDER DATED JULY 16,2007. THE MUMBAI ITAT FOLLOWED THE ABOVE DECISION AND QUASHED THE RE ASSESSMENT PROCEEDINGS IN THE FOLLOWING CASES: TATA INTERNATIONAL LTD V. DY. CIT (2012) 52 SOT 456 (MUM.) TELCO DADAJEE DHAKJEE LEARNED. V. DCIT (MUM.)(TM)- ITATNLINE.ORG MULLER & PHILIPS (INDIA) LTD. V. ITO (MUM.) (TRIB.); WWW.ITATONLINE.ORG JEEVANLAL JAIN ITA NO.910/M/2014 DT.13-1-2016, BEN CH J; (MUM.(TRIB.). 4. THE LD. DR RELIED ON THE DECISION OF THE DELHI A BENCH OF THE TRIBUNAL IN THE CASE OF ITO, WARD-11(6), NEW DELHI VS-SMT. GURINDER KAUR [ 2006] 102 ITD 189 (DEL) AND ARGUED THAT WHERE THE ASSESSEE WAS AWARE OF REASONS FOR RE OPENING THE ASSESSMENT, NON- COMMUNICATION OF REASONS WOULD NOT BE FATAL TO THE VALIDITY OF REASSESSMENT PROCEEDINGS. THE PROPOSITION LAID DOWN IN THIS CASE DOES NOT APPLY T O THE FACTS OF THE CASE ON HAND FOR THE REASONS THAT, IT CANNOT BE SAID THAT THE AS IN THIS CASE WAS AWARE OF THE REASONS FOR REOPENING OF ASSESSMENT. IN ANY EVENT, I AM BOUND TO FOLLOW T HE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN PREFERENCE TO THE JUDGMENT OF DIVISION BEN CH OF DELHI TRIBUNAL. 4. I ADOPT THE ABOVE DETAILED REASONING MUTATIS MU TANDIS TO QUASH THE IMPUGNED RE-OPENING IN FACTS OF THE INSTANT CASE. THE ASSESS EES ALL OTHER GROUNDS ARE RENDERED INFRUCTUOUS THEREFORE. 5. THIS ASSESSEES APPEAL IS ALLOWED IN ABOVE TERMS . ORDER PRONOUNCED IN OPEN COURT ON 07/08/2019 SD/- (S.S. GODARA) JUDI CIAL MEMBER KOLKATA, *DKP/SR.PS - 07/08/2019 ITA NO.2409/KIL/2018 A.Y.20 12-13 JAYANTA SAHA VS. ITO WD-44(2), KOL . PAGE 3 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-JAYANTA SAHA 1, KALICHARAN GHOSH ROAD, K OLKARTA-50 2. /RESPONDENT-ITO WARD-44(2), 3, GOVT. PLACE, (WEST), KOLKATA-001 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ ',