Bardhaman Cooperative Milk Producers' Union Limited, Burdwan V. CIT, Burdwan, Burdwan

ITA 310/KOL/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78319 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-06-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 03-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: SOUOMITRA CHODHURY
• Keywords: Revision of order; Reasonable cause; Competent authority
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 310 - 311 / KOL / 2009 ASSESSMENT YEARS :2003-04 & 2004-05 BARDHMAN CO-OPERATIVE MILK PRODUCERS UNION LIMITED 79, N.BOSE ROAD, BURDWAN 713101 [ PAN NO. AAABB 0221C ] V/S . COMMISSIONER OF INCOME TAX, BURDWAN, AYAKAR BHAWAN, COURT COMPOUND, BURDWAN / APPELLANT .. / RESPONDENT) /BY ASSESSEE SHRI SOUOMITRA CHODHURY, A.R /BY RESPONDENT SHRI RAVI JAIN, CIT, DR /DATE OF HEARING 06-05-2014 /DATE OF PRONOUNCEMENT 06-05-2014 / // / O R D E R PER SHAMIM YAHYA, ACCOUNTANT MEMBER:- THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED A GAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX, BURDWAN DATED 14-03 -2008 PASSED U/S. 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) PERTAINING TO ASSESSMENT YEARS 2003-04 AND 2004-05 RESPECTIVELY. ISSUES ARE COMMON AND THE APPEALS ARE HEARD TOGETHER. THESE ARE BEING DIS POSED OF BY THIS COMMON ORDER. ITA NO. 310-311/KOL/2009 A.YS 03-04 & 04-0 5 BARDHMAN CO-OP. MILK PRODUCERS UNION LTD. V. CIT BWN PAGE 2 2. AT THE OUTSET, IT IS NOTICED THAT THERE A DELAY OF 290 DAYS IN FILING OF THESE APPEALS. IN THIS REGARD, AN AFFIDAVIT HAS BEEN FILE D BY THE ASSESSEES ADVOCATE, SHRI PRADIP AICH. IN THIS AFFIDAVIT, THE CONSULTANT HAS ADMITTED THAT THE DELAY IN FILING OF THE APPEALS WERE ABSOLUTELY THAT OF THE C ONSULTANT BECAUSE HE WAS NOT VERY CONVERSANT WITH THE TRIBUNAL MATTER AND HENCE COULD NOT ADVISE HIS CLIENT CORRECTLY. IN THIS REGARD, LD. COUNSEL FOR THE ASSE SSEE REFERRED TO DECISION OF THE TRIBUNAL IN THE CASE OF M/S FIBRE BOX COMPANY V. ITO IN ITA NO. 1301 & 983/KOL/2008. IN THESE CASES, VIDE ORDER DATED 24-1 2-2008 THE TRIBUNAL HAD CONDONED THE DELAY IN FILING THE APPEALS FOR 396 DA YS. THE REASONABLE CAUSE IN THESE CASES ALSO WAS ATTRIBUTED TO MISTAKE ON TH E PART OF THE ASSESSEES COUNSEL IN NOT PROPERLY ADVISING HIS CLIENT. 3. LD. DR ON THE OTHER HAND OPPOSED THE PLEA OF CON DONATION. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORD AND WE FIND THAT DELAY OF 290 DAYS IN FILING IN THE SE CASES HAS BEEN ATTRIBUTED TO MISTAKE ON THE PART OF ASSESSEES COUNSEL. THE C OUNSEL HAS CLEARLY ADMITTED THE MISTAKE ON HIS PART. WHEN THE DELAY IN FILING OF THESE APPEALS IS ATTRIBUTED TO THE MISTAKE OF THE CONSULTANT, IN OUR CONSIDERED OPINION, ASSESSEE SHOULD NOT BE PENALIZED ON THIS COUNT. THE CASE LAW REFERRED BY THE LD. COUNSEL FOR THE ASSESSEE ALSO SUPPORTS THIS PRO POSITION. ACCORDINGLY, WE CONDONE THE DELAY. 5. AS REGARDS THE MATTER IN APPEAL, WE NOTE THAT TH E SAME IS AGAINST ORDER PASSED BY THE LD. CIT U/S. 263 OF THE ACT. AT THE O UTSET, IN THIS CASE, LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE NOTIC E TO THE ASSESSEE U/S. 263 OF THE ACT IN THESE CASE, WAS ISSUED BY LETTER DATE D 06-03-2007. THE SAID NOTICE WAS SIGNED BY ACIT, HQRS., BURDWAN FOR COMMI SSIONER. REFERRING TO THIS ASPECT, THE LD. COUNSEL FOR THE ASSESSEE PLEAD ED THAT SECTION 263 OF THE ITA NO. 310-311/KOL/2009 A.YS 03-04 & 04-0 5 BARDHMAN CO-OP. MILK PRODUCERS UNION LTD. V. CIT BWN PAGE 3 ACT PROVIDES FOR NOTICE AND ADJUDICATION BY THE LD. CIT. LD. COUNSEL FOR THE ASSESSEE CLAIMED THAT SINCE NOTICE U/S. 263 OF THE ACT HAS NOT BEEN SIGNED BY THE LD. COMMISSIONER. THE JURISDICTION ASSUMED IS D EFECTIVE AND THE ORDER U/S 263 OF THE ACT, IS LIABLE TO BE QUASHED ON THIS GRO UND ITSELF. IN THIS REGARD, LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE DECISION O F HONBLE ALLAHABAD HIGH COURT IN THE COURSE OF CIT V. RAJESH KUMAR PANDEY (2012) 25 TAXMANN.COM 242 (ALL.). THE LD. COUNSEL FOR THE ASSESSEE FURTHE R REFERRED TO THE DECISION OF THE TRIBUNAL IN THE CASE OF SATISH KUMAR KASHRI V. ITO 104 ITD 382 (PAT). 6. LD. DR ON THE OTHER HAND SUBMITTED THAT ABOVE IS NOT THE MATERIAL DEFECT AND HE SUBMITTED THAT THERE IS NO REASON TO SET ASIDE THE ORDER U/S. 263 OF THE ACT, ON THIS ACCOUNT. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORD. WE FIND THAT SECTION 263(1) OF THE ACT PROVIDES AS UNDER:- THE CIT MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED BY THE AO IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTER EST OF REVENUE HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING H EARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEE MS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSES SMENT, OR CANCELLING THE ASSESSMENT AND DIRECTING FRESH ASSE SSMENT. NOW WE CAN ALSO REFER TO THE NOTICE U/S. 263 OF THE ACT ISSUED TO THE ASSESSEE. THIS NOTICE WAS SIGNED AS UNDER:- YOURS FAITHFULLY SD/- VIKRAMADITYA (VIKRAMADITDYA) ACIT, HQRS., BURDWAN, FOR COMMISSIONER. ITA NO. 310-311/KOL/2009 A.YS 03-04 & 04-0 5 BARDHMAN CO-OP. MILK PRODUCERS UNION LTD. V. CIT BWN PAGE 4 FROM THE ABOVE, IT IS CLEAR THAT THE SAID NOTICE U/ S. 263 OF THE ACT HA S NOT BEEN SIGNED BY THE COMMISSIONER OF INCOME TAX RAT HER IT HAS BEEN SIGNED BY ACIT, HQRS., BURDWAN. THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF RAJESH KUMAR PANDEY (SUPRA) HAS EXPOUNDED THAT WHEN THE LD. CIT HAS NO T RECORDED HIS SATISFACTION, BUT IT WAS THE SATISFACT ION OF THE INCOME TAX OFFICER (TECHNICAL) WHO IS NOT COMPETENT TO REVISE HIS ORDE R U/S. 263 OF THE ACT, THE ORDER PASSED WAS LIABLE TO BE SET ASIDE. THE RELEVA NT PORTION OF THE ORDER OF HONBLE ALLAHABAD HIGH COURT READS AS UNDER:- 6. ON PERUSAL OF THE AFORESAID PROVISIONS, IT WILL BE ABUNDANTLY CLEAR THAT THE PROVISIONS OF SECTION 299-BB DEALS WITH TH E PROCEDURE FOR SERVICE OF NOTICE AND IN CASE, THERE IS A DEFECTIVE SERVICE OF NOTICE, IT PROVIDES THAT IF THE ASSESSEE HAS COOPERATED, IT WI LL NOT BE OPEN FOR HIM TO RAISE THE PLEA, WHEREAS IN THE INSTANT CASE, IT IS NOT THE CASE OF THE SERVICE OF NOTICE, BUT THE INITIAL ISSUANCE OF NOTI CE, WHICH HAS NOT BEEN SIGNED BY THE COMPETENT AUTHORITY AS A FINDING HAS BEEN RECORDED BY THE TRIBUNAL THAT THE NOTICE HAS BEEN ISSUED UNDER THE SIGNATURE OF INCOME-TAX (TECHNICAL), WHEREAS IN VIEW OF THE PROV ISIONS OF POWERS UNDER SECTION 263(1), IT IS ONLY THE COMMISSIONER O F INCOME-TAX TO ISSUE NOTICE. IT IS ALSO RELEVANT TO ADD THAT PLEAS CAN B E RAISED ONLY OUT OF THE JUDGMENT PASSED BY THE TRIBUNAL OR OTHER AUTHORITIE S, BUT THE PLEA, WHICH WAS NOT RAISED AT ANY STAGE, CANNOT BE RAISED FOR THE FIRST TIME BEFORE THIS COURT. NO OTHER ARGUMENTS HAVE BEEN ADV ANCED IN RESPECT OF OTHER QUESTIONS FRAMED IN THE MEMO OF APPEAL. 8. SIMILARLY, WE NOTE THAT IN THE CASE OF SATISH KR. KESHARI (SUPRA), THE TRIBUNAL HAD HELD THAT WHEN THE NOTICE U/S. 263 OF THE ACT WAS NOT UNDER THE SEAL AND SIGNATURE OF LD. CIT AND SUFFERED FOR WANT OF DETAILS ON THE BASIS OF WHICH LD. CIT CAME INTO CONCLUSION THAT THE ORDER O F ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E, ASSUMPTION OF JURISDICTION U/S. 263 OF THE ACT BY THE LD. CIT WAS INVALID. 9. FROM THE ABOVE DISCUSSION REGARDING THE PROVISIO N OF LAW AND THE CASE LAW IN THIS REGARD, IT IS CLEAR THAT FOR A VALID AS SUMPTION OF THE JURISDICTION U/S. 263 OF THE ACT, THE NOTICE ISSUED U/S. 263 OF THE A CT SHOULD BE ISSUED BY THE LD. CIT. IN THIS CASE, IT IS UNDISPUTED THAT NOTICE WAS ISSUED BY ACIT, HQRS, BURDWAN WHO IS NOT COMPETENT TO ASSUME JURISDICTION U/S. 263 OF THE ACT. ITA NO. 310-311/KOL/2009 A.YS 03-04 & 04-0 5 BARDHMAN CO-OP. MILK PRODUCERS UNION LTD. V. CIT BWN PAGE 5 HENCE, THE NOTICE WAS NOT UNDER THE SEAL AND SIGNAT URE OF LD. CIT. HENCE, AS PER THE PRECEDENTS REFERRED TO ABOVE, THE ASSUMPTIO N OF JURISDICTION U/S. 263 OF THE ACT IN THIS CASE IS NOT VALID. ACCORDINGLY, THE ORDER U/S. 263 OF THE ACT PASSED IN THESE CASES ARE QUASHED. 10. IN THE RESULT, BOTH THE APPEALS FILED BY ASSESSEE A RE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 06 /05/2014 SD/- SD/- (MAHAVIR SINGH) (SHAMIM YAHYA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP #- 06/05/2014 / / / / 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT BARDHMAN CO-OPERATIVE MILK PRODUCERS UNION LTD., 79, N.BOSE ROAD, BURDWAN - 713101 2. / RESPONDENT COMMISSIONER OF INCOME TAX, BURDWAN 3. 5 / CONCERNED CIT 4. 5- / CIT (A) 5. / , , / DR, ITAT, KOLKATA 6. : / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,