Jyoti Mohan Mall, Kolkata V. DCIT, Cir-43, Kolkata, Kolkata

ITA 385/KOL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1752 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 22-05-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 24-02-2017
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: B C JAIN
• Section: 143(3); 263

Judgement Text

ITA NO.385/KOL/2017 JYOTI MOHAN MALL A.Y.2003-04 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI WASE EM AHMED, AM] I. T.A NO. 385/KOL/2017 ASSES SMENT YEAR : 2003-04 JYOTI MOHAN MALL -VS.- D.C.I.T., CIRCLE-43, KOLKATA KOLKATA [PAN : AEAPM 6914 K] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SH RI B.C.JAIN, FCA FOR THE RESPONDENT : SHRI NIRAJ KUMAR, CIT(DR) DATE OF HEARING : 22.05.2017 DATE OF PRONOUNCEMENT : 24.05.2017. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 19.09.2016 OF CIT(A)-13, KOLKATA, RELATING TO AY 2003-04. 2. THERE IS A DELAY OF ABOUT 40 DAYS IN FILING T HIS APPEAL BY THE ASSESSEE. BEFORE WE GO INTO THE REASONS FOR THE DELAY IN FILING THIS AP PEAL IT IS NECESSARY TO SET OUT THE FACTS AND CIRCUMSTANCES UNDER WHICH THE PRESENT APPEAL AR ISES FOR CONSIDERATION. 3. THE ASSESSEE IS AN INDIVIDUAL. AN ORDER OF A SSESSMENT WAS PASSED U/S 143(3) R.W.S. 153C OF THE INCOME TAX ACT 1961 (ACT) ON 31. 12.2007 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.1,55,670/-. THIS ORDER OF THE AO WAS SET ASIDE BY CIT- XV, KOLKATA IN EXERCISE OF HIS POWERS U/S 263 OF T HE ACT BY AN ORDER DATED 30.03.2010 WITH THE DIRECTION LOOKED INTO THE FOLLO WING ISSUES :- 1. LOSS ON SALE OF SHARES FOR RS.38,48,205/- 2. PROFIT ON SALE OF LAND FOR RS.29,71,130/- 3. FRESH LOAN FOR RS.25,00,000/- ITA NO.385/KOL/2017 JYOTI MOHAN MALL A.Y.2003-04 2 4. THE ASSESSEE CHALLENGED THE ORDER OF CIT PASSE D U/S 263 OF THE ACT DATED 30.03.2010 BEFORE THE HONBLE ITAT IN ITA NO.819/KO L/2010. WHEN THAT APPEAL WAS PENDING THE AO GAVE EFFECT TO THE ORDER OF CIT DATE D 30.03.2010 PASSED U/S 263 OF THE ACT BY PASSING AN ORDER DATED 31.12.2010 DETERMININ G THE TOTAL INCOME OF THE ASSESSEE AT RS.40,03,883/-. IN THE SAID ORDER THE AO DISALLO WED A LOSS OF RS.38,48,213/- ON SALE OF SHARES. THE ASSESSEE CHALLENGED THE AFORESAID OR DER OF AO DATED 31.12.2010 BEFORE CIT(A)-13, KOLKATA WHO BY THE IMPUGNED ORDER UPHELD THE ORDER OF AO. 5.AGGRIEVED BY THE AFORESAID ORDER OF AO THE ASSESS EE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 6. PENDING DISPOSAL OF THIS APPEAL, THE APPEAL F ILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 30.03.2010 PASSED U/S 263 OF THE ACT IN ITA NO..819/KOL/2010 WAS TAKEN UP BY THE TRIBUNAL FOR HEARING AND THE TRIBUNAL BY AN ORDER DATED 21.12.2016 QUASHED THE ORDER U/S 263 OF THE ACT. IN VIEW OF THE AFORES AID ORDER OF THE TRIBUNAL THE ENTIRE PROCEEDINGS PURSUANT TO THE ORDER U/S263 OF THE ACT ARE LIABLE TO BE SET ASIDE. 7. AS FAR AS THE DELAY IN FILING THE PRESENT APPE AL BY THE ASSESSEE IS CONCERNED THE DELAY HAS OCCURRED DUE TO CONFUSION IN THE MIND OF THE ASSESSEE AS TO WHETHER PURSUANT TO THE ORDER OF ITAT DATED 21.12.2016 HE SHOULD MAK E A REQUEST TO THE AO TO ANNULL HIS ORDER PURSUANT TO THE ORDER U/S 263 OF THE ACT OR APPROACH THE CIT(A) OR TRIBUNAL FOR THE SAID PURPOSE. ON OBTAINING PROPER LEGAL ADV ICE THE ASSESSEE HAS NOW APPROACHED THE TRIBUNAL FOR DECLARING ALL PROCEEDIN GS PURSUANT TO ORDER U/S 263 OF THE ACT AS INFRUCTUOUS. THE DELAY EXPLAINED AS ABOVE I N THE AFFIDAVIT FILED BY THE ASSESSEE BEFORE US HAS BEEN PERUSED AND WE ARE SATISFIED THA T THERE WAS SUFFICIENT CAUSE FOR THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. HEN CE THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL IS CONDONED. 8. AS FAR AS THE MERITS OF THE APPEAL IS CONCERN ED WE ARE OF THE VIEW THAT IN THE LIGHT OF THE ORDER OF THE TRIBUNAL DATED 21.12.2016 QUASH ING THE ORDER U/S 263 OF THE ACT THE ITA NO.385/KOL/2017 JYOTI MOHAN MALL A.Y.2003-04 3 IMPUGNED ORDER OF CIT(A) AS WELL AS ORDER DATED 30. 03.2010 PASSED BY THE AO HAVE NO LEGS TO STAND AND THEY ARE THEREFORE ANNULLED. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE COUR T ON 24.05.2017. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24.05.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1. JYOTI MOHAN MALL, 216, MAHATMA GANDHI ROAD, KOLK ATA-700007. 2. D.C.I.T., CIRCLE-43, KOLKATA. 3. CIT(A)-13, KOLKATA. 4. C.I.T.-15, KOLKAT A. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES