M/s Ardhendu Mondal., Burdwan V. I.T.O Wd - 1(1),Burdwan., Burdwan

ITA 314/KOL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83192 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 01-08-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 14-02-2013
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Keywords: Reopening of assessment; Opportunity of being heard; Difference of opinion; Change of opinion
• Section: 143(3); 147; 148; 12; 2

Judgement Text

, SM C , IN THE INCOME TAX APPELLATE TRIBUNAL SM C BENCH: KOLKATA ( ) BEFORE , ) [BEFORE SHRI MAHAVIR SINGH, JM] / I.T.A NO S . 313 & 314 /KOL/20 1 3 / ASSESSMENT YEAR S : 20 0 2 - 0 3 & 2003 - 04 M/S. ARDHENDU MONDAL VS. INCOME - TAX OFFICER, WD - 1(1), BURDWAN (PAN:AAFFA0358H) ( /APPELLANT ) ( / RESPONDENT ) DATE OF HEARING: 2 5 . 11 .201 4 DATE OF PRONOUNCEMENT: 26 . 1 1 .201 4 FOR THE APPELLANT : SHRI SIDDHARTH JHAJHARIA, FCA FOR THE RESPONDENT : SHRI K. K. TRIPATHI , JCIT, SR. DR / ORDER BOTH THESE APPEAL S BY ASSESSEE ARE ARI SING OUT OF SEPARATE ORDER S OF CIT(A) - DURGAPUR IN APPEAL NO S . 12 1 &122 /CIT(A) /ASL/WD - 1(1)/BWN/2008 - 09 BOTH DATED 2 0. 11 .2012. ASSESSMENT S WERE FRAMED BY ITO, WARD - 1(1), BURDWAN U/S. 143(3) /147 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR S 200 2 - 0 3 AND 2003 - 04 VIDE HIS SEPARATE ORDER S BOTH DATED 31 .12.20 0 8 . 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STATED THAT HE HAS RAISED THE ISSUE OF REOPENING U/S. 147 OF THE ACT, IS NOT VALID AS SUCH REOPENING IS MERE CHANGE OF OPINION OF THE AO. FOR THIS ASSESSEE HAS RAISED COMMON GROUND IN BOTH THE YEARS AND RELEVANT GROUND AS RAIS ED IN AY 2002 - 03 READS AS UNDER: FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A), ASANSOL INSTEAD OF DISMISSING GR. NO. 1 AND 2 OUGHT TO HAVE FOUND THAT THE REOPENING OF ASSESSMENT U/S. 148 OF I. T. ACT , 1961 IS NO T VALID AS SUCH REOPENING OF ASSESSMENT IS MERE CHANGE OF OPINION OF A.O. 3 . LD. COUNSEL FOR THE ASSESSEE STATED THAT THE AO HAS NOT ADJUDICATED THE ISSUE OF REOPENING. HE DREW OUR ATTENTION TO PARA 6 OF ASSESSMENT ORDER WHICH READS AS UNDER: 6. IN RE PLY, THE ASSESSEE FILED A SUBMISSION ON 06.11.2008 DISPUTING THE PROCEEDINGS U/S. 148. ON CONSIDERING THE SUBMISSION OF THE ASSESSEE THE CONTENTION OF THE ASSESSEE IS FOUND NOT TO BE TENABLE IN VIEW OF THE FACTS AS CITED ABOVE. FURTHER, THE ASSESSEE CIT ED THE DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF RIJHUMAL VALIRAM AND OTHERS VS. CIT (1971) ITR 79 PAGE 9 WHICH ON CLOSER SCRUTINY FOUND NOT TO BE APPLICABLE IN THE PRESENT CASE AS THE FACT AND CIRCUMSTANCES OF THE SAID CASE ARE DIFFERENT. 2 ITA NO S . 313 & 314 /K/201 3 M/S. ARDHENDU MONDAL, AY 200 2 - 0 3 & 2003 - 04 HE STATED THAT THE OBJECTION HAS NOT BEEN DECIDED IN TERM OF THE RATIO LAID DOWN BY HON BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFT S ( INDIA ) LTD. VS. ITO (2003) 259 ITR 19 (SC) WHEREIN HON BLE SUPREME COURT HAS LAID DOWN THE PRINCIPLE THAT WHEN A NOTICE UNDER SECTION 148 IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICE IS TO FILE A RETURN AND IF HE SO DESIRES, TO SEEK REASONS FOR ISSUING NOTICE. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, THE NOTICEE IS ENTITLED TO FILE OBJECTION TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN VIEW OF THIS, LD. COUNSEL FOR THE ASSESSEE REQUESTED FOR SETTING ASIDE THE ISSUE TO THE FILE OF AO. ON THIS, THE LD. SR. DR HAS NOT OBJECTED TO THE SAME. 4. AFTER HEARING BOTH THE SIDES AND PERUSING THE ORDERS OF THE AUTHORITIES BELOW, I FIND THAT THE AO HAS NOT ADJUDICATED THE OBJECTIONS RAISED BY ASSESSEE . HENCE, IN TERM OF THE DECISION OF HON BLE SUPR EME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD., SUPRA I SET ASIDE THE ASSESSMENTS OF BOTH THE YEARS TO THE FILE OF AO FOR REDOING THE SAME AFTER MEETING THE OBJECTIONS OF THE ASSESSEE FOR REOPENING OF ASSESSMENT. EVEN ON MERITS, THE AO WILL PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL S OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6 . ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 6 . 1 1 . 2 0 1 4 S D / - , (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 2 6 T H NOVEMBER , 201 4 JD.(SR.P.S.) - COPY OF THE ORDER FORWARDED TO: 1 . / A PPELLANT M/S. ARDHENDU MONDAL, KALI BAZAR, P.O & DIST. BURDWAN, PIN 713 101 . 2 / RESPONDENT ITO, WARD - 1(1), BURDWAN 3 . ( )/ THE CIT(A), DURGAPUR 4. 5. / CIT / DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, / BY ORDER, /ASSTT. REGISTRAR .