Berhampur Co-operative Central Bank Ltd., Ganjam V. DCIT, Berhampur Circle, Berhampur

ITA 281/CTK/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3592 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 11-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MOHAPATRA
• Keywords: Reopening of assessment; Reassessment proceedings
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 281 /CTK/2017 ASSESSMENT YEAR : 20 09 - 2010 BERHAMPUR CO - OP CENTRAL BANK LTD., BERHAMPUR, GANJAM VS. DCIT, BERHAMPUR CIRCLE, BERHAMPUR PAN/GIR NO. AAAAB 2634 C (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI A.K.MOHAPATRA, CIT DR DATE OF HEARING : 1 4 /0 8 / 2018 DATE OF PRONOUNCEMENT : 20 /0 8 / 2018 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 1, BHUBANESWAR DATED 9.3.2017 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE MATTER WAS CALLED FOR HE A RING. HOWEVER, AN ADJOURNMENT PETITION DATED 11. 8 .201 8 IS FILED BY THE ASSESSEE STATING THAT ON THE DATE OF HEARING THE COUNSEL FOR THE ASSESSEE BEING OUT OF STATE I.E. AT CHENNAI DUE TO HIS PRE - OCCUPATION IN PROFESSIONAL ASSIGNMENT AND, THEREFORE, IS UNABLE TO ATTEND THE HEARING AND HENCE, REQUESTED FOR ADJOURNING THE HEARING TO THE MONTH OF NOVEMBER, 2018 . THE BENC H DID NOT FIND THE REASON FOR SEEKING ADJOURNMENT AS A PLAUSIBLE ONE. HENCE, THE ADJOURNMENT PETITION WAS 2 ITA NO.281/CTK/2017 ASSESSMENT YEAR : 2009 - 2010 REJECTED AND THE APPEAL WAS DISPOSED OF AFTER HEARING LD D.R. AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. IN GROUND NOS.1 & 2, THE ASSESSEE HAS CHALLENGED THE REOPENING OF ASSESSMENT U/S.147 OF THE ACT. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT ON 16.12.2011 DETERMINING THE TOTAL INCOME OF R S.8,57,65,530/ - AS AGAINST THE RETUNED INCOME OF RS.21,42,680/ - . LATER ON, REASSESSMENT PROCEEDINGS U/S.147 OF THE ACT WAS INITIATED AND NOTICE U/S.148 OF THE ACT WAS ISSUED TO THE ASSESSEE BY THE ASSESSING OFFICER. IN RESPONSE TO NOTICE U/S.148 OF THE ACT, THE ASSESSEE DID NOT FILE RETURN OF INCOME WITHIN THE TIME ALLOWED BUT A WRITTEN SUBMISSION WAS FILED BY THE ASSESSEE STATING THEREIN TO TREAT THE ORIGINAL RETURN OF INCOME FILED ON 30.9.2009. IN THE SAID SUBMISSION, THE ASSESSEE ALSO HAD ASKED TO SUPPLY THE REASONS FOR INITIATING REASSESSMENT PR OCEEDINGS U/S.147 OF THE ACT. AS THE ASSESSEE HAS NOT FILED RETURN OF INCOME IN RESPONSE TO NOTICE U/S.148 OF THE ACT, IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. VS ITO, 259 ITR 19 (SC), THE REASONS FOR IN ITIATING THE REASSESSMENT PROCEEDINGS WAS NOT SUPPLIED TO THE ASSESSEE. THE ASSESSING OFFICER FRAMED REASSESSMENT U/S.147 R.W.S 143(3) ON 9.3.2017 MAKING DISALLOWANCE OF RS.2,06,50,598/ - ON ACCOUNT OF ARREAR SALARY PAID TO THE EMPLOYEES OF THE ASSESSEE. 3 ITA NO.281/CTK/2017 ASSESSMENT YEAR : 2009 - 2010 5. ON APPEAL BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT AS NO NEW MATERIAL CAME TO THE KNOWLEDGE OF THE ASSESSING OFFICER, THE REASSESSMENT PROCEEDINGS IS BAD IN LAW. IT WAS ALSO SUBMISSION THAT THE REASONS RECORDED BY THE ASSESSING OFFICER FOR INITIA TING THE REASSESSMENT PROCEEDINGS WAS NOT SUPPLIED TO THE ASSESSEE. THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER OBSERVING THAT THE ASSESSING OFFICER HAS RECORDED THE REASONS FOR HIS BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. 6. WE HAVE HEARD LD D.R., PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. WE FIND THAT IN THE INSTANT CASE, THE ASSESSEE WAS REQUIRED BY THE ASSESSING OFFICER TO FILE THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S.148 OF THE AC T. HOWEVER, THE ASSESSEE DID NOT FILE THE RETURN OF INCOME AND FILED A WRITTEN SUBMISSION REQUESTING TO SUPPLY THE REASONS RECORDED FOR REOPENING OF ASSESSMENT. THE ASSESSING OFFICER DID NOT SUPPLY THE REASONS RECORDED AND COMPLETED THE REASSESSMENT ON 9 .3.2017. LD CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 7. WE FIND THAT HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD VS. ITO & ORS, 259 ITR 019 (SC) HAS OBSERVED IN PARA 5 OF ITS ORDER THAT WHEN A NOTICE UNDER SECTION 148 OF THE A.T.ACT IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICEE IS TO FILE RETURN AND IF HE SO DESIRES, TO SEEK REASONS FOR ISSUING NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, 4 ITA NO.281/CTK/2017 ASSESSMENT YEAR : 2009 - 2010 THE NOTI CEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. 8. AS THE ASSESSING OFFICER HAS NOT SUPPLIED THE REASONS RECORDED FOR REOPENING THE ASSESSMENT U/S.147 OF THE ACT, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATING THE ISSUE OF REOPENING OF ASSESSMENT AFTER PROVIDING THE ASSESSEE WITH THE COPY OF REASONS RECORDED FOR REOPENING THE ASSESSMENT AND ALSO CONSIDERING THE SUBMISSIONS OF THE ASSESSEE ON THE RECORDED REASONS. THE ASSESSING OFFICER SHALL ALLOW A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE REFRAMING THE ASSESSMENT AS PER LAW. GROUND NO.1 &2 OF APPEAL OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. 9 . AS WE HAVE RESTORED THE ISSUE OF REOPENING OF ASSESSMENT TO THE FILE OF THE A SSESSING OFFICER FOR AFRESH ADJUDICATION, THEREFORE, GROUND NO .3 OF THE APPEAL OF THE ASSESSEE ON MERITS OF ADDITIONS IS ALSO RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH. 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 20 /0 8 /2018. S D/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 20 /0 8 /2018 5 ITA NO.281/CTK/2017 ASSESSMENT YEAR : 2009 - 2010 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : BERHAMPUR CO - OP CENTRAL BANK LTD., BERHAMPUR, GANJAM 2. THE RESPONDENT. DCIT, BERHAMPUR CIRCLE, BERHAMPUR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//