DCIT, Cir-3(1), Kolkata, Kolkata V. M/s Saregama India Ltd, Kolkata

ITA 470/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6367 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 09-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B DAS
• Assessee Lawyers: MRITYUNJAY ACHARJEE
• Keywords: Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 80IB; 147; 148

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 470 / KOL / 20 17 ASSESSMENT YEAR :2007-08 DCIT CIRCLE-5(2), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 8 TH FLOOR, KOLKATA-69 V/S . M/S BALMER LAWRIE & CO. LTD., 21, NETAJI SUBHAS ROAD, KOLKATA-700001 [ PAN NO.AABCB 0984 E ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI B. DAS, ADDL. CIT-DR /BY RESPONDENT SHRI MRITYUNJAY ACHARJEE, AR /DATE OF HEARING 07-06-2018 /DATE OF PRONOUNCEMENT 15-06-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL FOR THE ASSESSMENT YEAR 2007- 08 CHALLENGES OF CORRECTNESS OF THE COMMISSIONER OF INCOME TAX (APPE ALS)-8, KOLKATAS ORDER DATED 12.01.2016, PASSED IN CASE NO.969/2014-15 QUA SHING RE-ASSESSMENT IN QUESTION TO BE HIT BY SECTION 147 1 ST PROVISO AS WELL AS MERE CHANGE OF OPINION, INVOLVING PROCEEDINGS U/S 147 R.W.143(3) O F THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. WE HAVE HEARD BOTH THE PARTIES. CASE FILE PERUSE D. LEARNED DEPARTMENTAL REPRESENTATIVE INVITES SOUR ATTENTION TO CIT(A)S DETAILED FINDINGS UNDER CHALLENGE READING AS UNDER:- 5. GROUND NO.S 1 AND 2: ON THE INITIATION OF THEE PROCEEDINGS FOR REASSESSMENT U/S 147, AND THE CONSEQUENTIAL REASSES SMENT MADE. 5.1 REASSESSMENT IS NO ORDINARY ASSESSMENT PROCEDUR E. THE STATUTE REQUIRES STRICT AND DISTINCT OBSERVATIONS TO BE SATISFIED BE FORE THE AO CAN INITIATE REASSESSMENT PROCEEDINGS U/S 147. THE LEGAL, TECHNI CAL, AND THE PROCEDURES LAID DOWN IN THE STATUTE HAVE TO BE APRIORI SATISFI ED. ITA NO.470/KOL/2016 A.Y.20 07-08 DCIT CIR-5(2), KOL. VS. M/S BALMER LAWRIE & CO. LTD. PAGE 2 IN THIS CASE THE AY IS 2007-08. REGULAR ASSESSMENT U/S. 143(3) HAD ALREADY EARLIER BEEN COMPLETED ON 30.11.2009; AND AGAINST W HICH THE APPELLANT HAD APPEALED TO THE CIT(A), AND CIT(A) HAD ALSO ALREADY DECIDED THE APPEAL, FOR WHICH THE APPEAL EFFECT HAD ALREADY ALSO BEEN GIVEN BY ORDER DATED 18.03.2011. THE IMPUGNED INITIATION OF THE REASSESSMENT WAS EFF ECTED BY ISSUE OF THE NOTICE U/S. 148 DATED 28.03.2013. THUS BY THAT TIME , 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR HAD ALREADY ELAPSED AND SO THIS IS THE CASE WHERE THE PROVISO TO SECTION 147 IS APPLICABLE, NAM ELY WHETHER THERE HAD BEEN FAILURE ON THE PART OF THE ASSESSEE TO DISCLOS E FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ITS ASSESSMENT. 5.2 THE DCIT AO FOR REASONS TO INITIATE THE REASSES SMENT PROCEEDINGS U/S. 147 MAKES THE STARTING REFERENCE TO THE TAX AUDIT R EPORT (TAR) PARTICULARS. AT THE ONSET ITSELF, THE TAR IS GOT DONE AND IS FURNIS HED BY THE APPELLANT ITSELF. SO ALL THE MATERIAL FACTS TO THE ISSUE HAD ALREADY BEEN FULLY AND TRULY DISCLOSED BY THE APPELLANT ITSELF. IT WAS ONLY QUESTION OF IN TERPRETATION OF SOME NARRATION/CAPTION. THUS, THE PROVISO TO SECTION 147 IS SQUARELY APPLICABLE IN THIS CASE WHICH MAKE THE INITIATION OF THE REASSE SSMENT PROCEEDINGS U/S. 147 BAD IN LAW, AND THUS VOID AUTHORITIES BELOW INI TIO. THIS ADDRESSES GROUND OF APPEAL NO.1, 2(A), 2(B), 2(E) AND 2(F). THUS THE IMPUGNED REASSESSMENT ORDER IS HEREBY ANNU LLED AS BEING BAD IN LAW, VOID AUTHORITIES BELOW INITIO. 5.3 MORE SO AND FURTHERMORE, THE ISSUE OF CLAIM OF DEDUCTION U/S. 80IB HAD ALREADY BEEN EXAMINED BY THE THEN AO IN THE IN THE ORIGINAL REGULAR ASSESSMENT U/S. 143(3). IT IS AT FORM PAGE 3 TO PAG E 4 OF THAT ASSESSMENT ORDER U/S. 14W3(3), AND THE AO HAD MADE DISALLOWANC E AT 1,32,14,823/- UNDER THE SECTION 80IB. THE POINT IS THE ISSUE HA D ALREADY BEEN EXAMINED BY THE AO IN THE ORIGINAL ASSESSMENT. THUS IT IS AL SO MERE CHANGE IN OPINION WHICH ADDRESSES GROUND OF APPEAL NO.2(C) AND 2(D). WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO REVEN UES SOLE SUBSTANTIVE GRIEVANCE ON TWIN ASPECTS OF APPLICATION OF SECTION 147 1 ST PROVISO AS WELL AS THAT OF CHANGE OF OPINION. THE ASSESSING OFFICER S ASSESSMENT ORDER DATED 30.12.2013 REPRODUCES THE SOLE REASON OF REOPENING TO BE SCRUTINY OF RECORDS AVAILABLE IN THE CASE FILE REVEALING THE ASSESSEE T O HAVE SOLD RAW MATERIALS ONLY FOLLOWED BY SECTION 80IB DEDUCTION CLAIM AS PE R ITS TAX AUDIT REPORT. WE FAIL TO UNDERSTAND AS TO HOW THE ASSESSEE CAN BE HE LD NOT TO HAVE DISCLOSED FULLY AND TRULY ALL THE RELEVANT PARTICULARS OF HIS INCOME IN THIS FACTUAL BACKDROP AS PER SECTION 147 1 ST PROVISO OF THE ACT IN THESE FACTS. HON'BLE APEX CO URTS LANDMARK DECISION IN PARASHURAM POTTERY WORKS CO. LTD. VS. ITO (1976) 106 ITR 1 (SC) MAKES IT CLEAR THAT A TAXPAYER CANNOT BE HELD RESPONSIBLE ON ACCOUNT OF THE ASSESSING OFFICERS REMISSNESS IN NO T APPLYING THE CORRECT ITA NO.470/KOL/2016 A.Y.20 07-08 DCIT CIR-5(2), KOL. VS. M/S BALMER LAWRIE & CO. LTD. PAGE 3 STATUTORY PROVISION. WE THEREFORE DECLINE THE REVEN UES FORMER ARGUMENT TO THIS EFFECT. 3. LEARNED DRS NEXT VEHEMENTLY CONTENTION IS THAT CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN TERMING THE IMPUGNED RE- ASSESSMENT TO BE MERE CHANGE OF OPINION. THE SAME IS FOUND TO BE DEVOID O F MERIT AS IT IS CLEAR FROM THE PERUSAL OF ASSESSMENT ORDER DATED 30.11.2009 PA GE 3 THAT ASSESSING OFFICER HAD VERY WELL CONSIDERED THE IMPUGNED ISSUE OF SECTION 80IB DEDUCTION WHILST MAKING DISALLOWANCE OF 1,32,14,323/-. WE QUOTE OF HON'BLE APEX COURTS DECISION IN CIT VS. KELVINATOR OF INDIA LTD. (2010) 320 ITR 561(SC) AS REITERATED IN THEIR LORDSHIP LATTER JUDGMENT DATED 24.04.2018 IN CIVIL APPEAL NO.2732/2007 ITO VS. TECHSPAN (I) PVT. LTD. HOLDING SUCH A CHANGE OF OPINION TO BE NOT SUSTAINABLE. THE REVENUE FAILS N SOLE OF ITS ARGUMENTS 4. THIS REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 15/ 06/2018 SD/- SD/- ( %) (' %) (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 15 / 06 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DCIT, CIR-5(2), AAYAKAR BHAWAN, P-7, CHO WRINGHEE SQ. KOL-69 2. /RESPONDENT-M/S BALMER LAWRIE & CO. LTD. 21,NETAJI SUBHAS ROAD, KOLKATA-001 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA (E-MAIL) 5. 7 ''3, 3, / DR, ITAT, KOLKATA (E-MAIL) 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,