Ganeshdas Ramgopal, Kolkata V. DCIT, CIR-40, KOLKATA, Kolkata

ITA 495/KOL/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9262 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-12-2016
• Assessment Year: 1999-2000
• Appeal Filed On: 27-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H R SINGH
• Assessee Lawyers: S M SURANA
• Keywords: Rectification of order
• Section: 244A; 147; 148; 154; 15

Judgement Text

ITA NO.495/KOL/2015-GANESHDAS RAMGOPAL A.Y.1999-2000 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE HONBLE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.495/KOL/2015 ASSESSMENT YEAR : 1999-2000 SHRI GANESHDAS RAMGOPAL 1, CHITTARANJAN AVENUE, KOLKATA-700072. PAN AACFG 8705A V/S . D.C.I.T., CIRCLE-40, 3, GOVERNMENT PLACE WEST, KOLKATA-700001. /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI S.M.SURANA, ADVOCATE /BY RESPONDENT SHRI H.R.SINGH, ADDL.CIT /DATE OF HEARING 19.01.2017. /DATE OF PRONOUNCEMENT 10.03.2017. /O R D E R PER WASEEM AHMED, AM THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)- 12, KOLKATA DATED 19.01.2015. ASSESSMENT WAS FRAMED BY A.C.I.T., CIRCLE-56, KOLKATA U/S 143(3)/147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 29.09.2003 FOR ASSESSMENT YEAR 1999-00. SHRI S.M. SURANA, LD. AUTHORIZED REPRESENTATIVE APP EARED ON BEHALF OF ASSESSEE AND SHRI H.R.SINGH, LD. DEPARTMENTAL REPRESENTATIVE REPRESEN TED ON BEHALF OF REVENUE. 2. THE SOLITARY ISSUE RAISED BY THE ASSESSEE I N THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF AO BY TREATING THE CORPORAT ION TAX OF RS.10,38,400/- AND RS.83220/- RECEIVED FROM THE TENANTS AS INCOME UNDER THE HEAD OTHER SOURCES BY PASSING A RECTIFICATION ORDER U/S 154 OF THE ACT. ITA NO.495/KOL/2015-GANESHDAS RAMGOPAL A.Y.1999-2000 2 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF PETROL PUMP. THE ASSESSEE, FOR THE YEAR UNDER CONSIDERATIO N, HAS FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.11,73,380/- COMPRISING INCOME FR OM BUSINESS, HOUSE PROPERTY AND OTHER SOURCES. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT AND THE REFUND OF RS. 232599/- U/S 244A OF THE ACT WAS GRANTED TO THE ASSESSEE. SUBSEQUENTL Y THE NOTICE WAS ISSUED U/S 148 OF THE ACT ON ACCOUNT OF VARIOUS REASONS AND ACCORDINGLY ASSESSME NT WAS FRAMED U/S 147 OF THE ACT AT A TOTAL INCOME OF RS.20,29,710/- AFTER MAKING CERTAIN ADDIT IONS/DISALLOWANCES TO THE TOTAL INCOME OF THE ASSESSEE WHICH ARE DISCUSSED HEREIN AFTER. THE ASSE SSEE, INTER ALIA WAS DERIVING RENTAL INCOME FROM PROPERTIES WHICH WAS OFFERED TO TAX UNDER THE HEAD HOUSE PROPERTY BESIDES THE RENTAL INCOME, THE ASSESSEE RECEIVED PROPERTY TAX FOR RS.1 0,38,400/- AND RS.83,220/- RESPECTIVELY FROM THE TENANTS WHICH WAS DEPOSITED WITH THE MUNICIPAL AUTHORITIES OF WEST BENGAL. THE ASSESSEE, IN HIS RETURNED OF INCOME HAS NEITHER SHOWN ANY INCOME OF SUCH AMOUNT NOR CLAIMED ANY DEDUCTION IN HIS INCOME TAX COMPUTATION. HOWEVER, THE AO TREA TED THE SAME AS INCOME FROM OTHER SOURCES AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. AGGRIEVED, THE ASSESSEE PREFERRED A REVISIONARY APPLICATION U/S 264 OF THE ACT TO THE COMMISSIONER OF INCOME TAX. THE LD. CIT U/S 264 OF THE ACT HAS DELETED THE ADDITION MADE BY THE AO VIDE ORDER DATED 23.03.2005 BY OBSERVING AS UNDER :- KEEPING IN VIEW THE ORDER OF THE JURISDICTIONAL HIG H COURT IN THE CASE OF CIT - VS- GILLANDERS ARBUTHNOT & CO. LTD. 142ITR 598(CAL) AND THE PROVIS ION OF THE CALCUTTA MUNICIPAL CORPORATION ACT 1980 AND THE WEST BENGAL PREMISES TENANCY ACT 1 997 THE AMOUNT RECEIVED BY THE ASSESSEE AS TENANT SHARE OF CORPORATION TAXES TO BE PAID BY THE ASSESSEE TO THE CORPORATION CANNOT BE ASSESSED UNDER THE HEAD 'OTHER SOURCES' MERELY BECAUSE THE S AME CANNOT BE ASSESSED UNDER THE HEAD ' INCOME FROM HOUSE PROPERTY '. KEEPING IN VIEW THE PROVISION OF CALCUTTA MUNICI PAL ACT 1980 AND WEST BENGAL PREMISES TENANCY ACT 1997 THE ASSESSEE MEREL Y IS AN AGENT OF MUNICIPAL CORPORATION FOR THE COLLECTION OF TENANT SHARE OF MUNICIPAL TAXES A ND THEREFORE, THE RECEIPT CANNOT BE ASSESSED UNDER HEAD OF ' INCOME FROM OTHER SOURCES ' . THE AO IS THEREFORE, NOT JUSTIFYING IN ASSESSING TH E CORPORATION TAX REALIZATION RS. 10,38,400/- AND RS.83,220/- BY THE APPLICANT FROM ITS TENANTS IN RE SPECT OF PROPERTY ACT NO.3,DECRES LANE AND 2/6 SARAT BOSE ROAD, KOLKATA AS INCOME UNDER THE HEAD ' INCOME FROM OTHER SOURCES '. THE SAME IS THEREFORE DELETED. SUBSEQUENTLY, THE AO PASSED THE EFFECT GIVING ORDER VIDE DATED 30.05.2006 BY DELETING THE ADDITION AS DIRECTED BY THE LD. CIT U/S 264 OF THE ACT. HOWEVER, SUBSEQUENTLY THE AO OBSERVED THAT WHILE GIVING EFFECT TO THE ORDER OF LD. CIT U/ S 264 OF THE ACT, A MISTAKE APPARENT FROM RECORD ITA NO.495/KOL/2015-GANESHDAS RAMGOPAL A.Y.1999-2000 3 HAS OCCURRED I.E. NOT ADDING THE MUNICIPAL TAXES IN THE ANNUAL VALUE OF BOTH THE PROPERTIES. ACCORDINGLY, THE AO ISSUED NOTICE U/S 154 OF THE AC T DATED 07.07.2008 FOR RECTIFYING THE ORDER OF THE LD. CIT U/S 264 OF THE ACT DATED 15.02.2008. FI NALLY, THE AO ADDED THE MUNICIPAL TAXES IN THE ANNUAL VALUE OF BOTH THE PROPERTIES WHICH WERE LET OUT DURING THE YEAR AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL TO THE L D. CIT(A). THE ASSESSEE BEFORE THE LD. CIT(A) SUBMITTED THAT THE PROVISION OF SECTION 154 OF THE ACT ARE APPLIED TO A MISTAKE APPARENT FROM RECORD BUT IN THE INSTANT CASE NO SUCH MISTAKE IS A RISING FROM THE ORDER OF LD.CIT U/S 264 OF THE ACT. THE LD. CIT U/S 264 OF THE ACT HAS JUST DELETE D THE ADDITION AS PRAYED BY THE ASSESSEE AND THERE WAS NO SUCH DIRECTION FOR ADDING THE MUNICIPA L TAXES IN THE ANNUAL VALUE OF THE PROPERTIES. THERE WAS ABSOLUTELY NO MISTAKE IN THE ORDER PASSED FOR GIVING EFFECT TO THE ORDER OF THE LD. CIT U/S 264 OF THE ACT. HOWEVER THE LD. CIT(A) AFTER CO NSIDERING THE SUBMISSIONS OF THE ASSESSEE HAS CONFIRMED THE ADDITION OF THE AO BY OBSERVING AS UN DER :- THE ASSESSING OFFICER WAS PROPOSING TO RECTIFY THE ORDER DATED 30.05.2006 AND NOT SOME ORDER DATED 15.02.2008 IS ALSO BORNE OUT BY THE SECOND GR OUND OF APPEAL IN WHICH IT HAS BEEN STATED THAT THE PROCEEDINGS U/S.154 OF THE ACT WERE INITIATED F OR RECTIFICATION OF THE ORDER DATED 30.05.2006. IT IS CLEAR FROM THESE FACTS AND THE TONE AND TENOR OF TH E ORDER DATED 17.10.2008 THAT THE SAME WAS PASSED ONLY WITH THE VIEW TO AMEND THE ORDER DATED 30.05.2006 GIVING EFFECT TO THE ORDER U/S 264 OF THE ACT. THUS, IT APPEARS THAT IT WAS ONLY BY MISTA KE THAT THE ORDER U/S.154 DATED 15.02.2008 WAS STATED AS THE ORDER SOUGHT TO BE RECTIFIED IN THE O RDER DATED 17.10.2008. SECTION 2928 OF THE ACT LAYS DOWN THAT NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN F URNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISIONS OF THE ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF .INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOM E, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN SUBSTANCE AND, EFFECT IN CONFORMIT Y WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THE ACT. AS IS CLEAR FROM THE FACTS NARRATED ABOVE, IN SUBSTANCE AND EFFECT THE ORDER DATED 1,7.10.2008 U/S.154 IS IN CONFORMITY WITH THE PROVI SIONS OF SECTION 154 OF THE ACT AND WAS PASSED WITH A VIEW TO RECTIFYING THE MISTAKES APPARENT FRO M RECORD IN THE ORDER DATED 30.05.2006 GIVING EFFECT TO THE ID CII''S ORDER U/ S.264 OF THE ACT. IT WOULD NOT BE OUT OF PLACE TO STATE THAT THE APPELLANT'S FIRST GROUND NO.1 DOES NOT BECOME INVAL ID MERELY FOR THE REASON THAT HE HAS WRONGLY MENTIONED THE DATE OF THE IMPUGNED ORDER DAS 17.10. 2006 INSTEAD OF 17.10.2008. SIMILARLY, THE ORDER DATED 17.10.2009 DOES NOT BECOME INVALID MERE LY BY REASON OF MISTAKE IN MENTIONING THE ORDER DATED 15.02.2008 U/S 154 AS THE ORDER SOUGHT TO BE RECTIFIED BY VIRTUE OF THE PROVISIONS OF SECTION 292 B OF THE ACT. HENCE THE FIRST GROUND OF APPEAL IS REJECTED. BEING AGGRIEVED BY THE ORDER OF LD. CIT(A) THE ASSE SSEE IS IN SECOND APPEAL BEFORE US ON THE FOLLOWING GROUNDS OF APPEAL :- ITA NO.495/KOL/2015-GANESHDAS RAMGOPAL A.Y.1999-2000 4 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) ERRED ON FACTS AND IN LAW IN SUSTAINING VALIDITY OF THE RECTIFICATION PROCEEDINGS INITIATED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-56, KOLKATA ('THE ASSESSING OFFICER') BY NOT ICE DATED 07/07/2008 AND THE ORDER DATED 17-10- 2008 MADE BY ASSESSING OFFICER UNDER SECTION 154 OF THE ACT CONSEQUENT TO THE SAID NOTICE DATED 07/07/2008 FOR THE ASSESSMENT YEAR 1999-2000. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN FACT AND IN LAW IN IGNORING: (A) THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OB VIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING OR EXAMINING ARGUMENTS ON POINTS WHERE THERE MAY CONCEIVABLY BE TWO POINTS; (B) THAT AN AUTHORITY CANNOT PROCEED TO RECTIFY THE MISTAKE IN THE ORDER OF ANY HIGHER AUTHORITY; AND ( C) THAT UNDER THE GUISE OF RECTIFICATION, THE ASSESSING OFFICER CANNOT UNDO THE DIRECTIONS OF THE APPELLATE AUTHORITY. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) BOTH ON FACTS AND IN LAW WAS NOT JUSTIFIED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER BRINGING THE CORPORATION TAX OF RS.10,38,400/- AND RS.83,220/- REALIZED FROM THE TE NANTS/ OCCUPIERS OF THE HOUSE PROPERTY SITUATED AT 3, DACRES LANE AND 2/6 SARAT BOSE ROAD RESPECTIV ELY FOR ASSESSMENT UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IN THE RECTIFICATION PROCEEDIN GS THOUGH SUCH AMOUNT WAS NEITHER ASSESSED UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IN ASSE SSMENT ORIGINALLY MADE UNDER SECTIONS 147/143(3) NOR SO DIRECTED BY THE LEARNED COMMISSIO NER IN HIS ORDER UNDER SECTION 264 OF THE ACT. 4. THAT THE APPELLANT CRAVES LEAVE TO ADDUCE ADDITI ONAL GROUNDS AND/OR TO MODIFY, SUBSTITUTE OR AMEND ANY OF THE FOREGOING GROUNDS AT/OR BEFORE OF HEARING OF THE APPEAL. 5. THE LD. AR BEFORE US SUBMITTED THAT THE ISSUE WAS RAISED BEFORE THE LD. CIT U/S 264 OF THE ACT. THE AO ERRED IN TREATING THE AMOUNTS OF MUNICI PAL TAXES RECEIVED FROM THE TENANTS AS INCOME FROM OTHER SOURCES. IN FACT THE AO DELETED T HE MUNICIPAL TAXES AS INCOME FROM OTHER SOURCES PASSED U/S 147 OF THE ACT VIDE ORDER DATED 29.09.2003. IN THE ORDER PASSED U/S 147 OF THE ACT THERE WAS NO WHISPER WHETHER SUCH RECEIPT WAS H OUSE PROPERTY INCOME OR OTHER SOURCES. THE LIMITED ISSUE WAS THAT BEFORE CIT U/S 264 OF THE AC T THAT THE AO ERRED IN TREATING THE MUNICIPAL TAXES RECEIVED AS INCOME OF THE ASSESSEE WHICH WAS DELETED BY THE LD. CIT U/S 264 OF THE ACT. AS SUCH, THERE WAS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF LD. CIT U/S 264 OF THE ACT. THEREFORE ORDER CANNOT BE RECTIFIED U/S 154 OF THE ACT. SIMILARLY THE FINDINGS OF THE LD. CIT(A) THAT THE A O IS PROPOSING TO RECTIFY THE ORDER DATED 30.05.2006 WHICH IS BASED ON HIS WRONG PREMISES. IT IS BECAUSE THERE IS NO APPARENT MISTAKE AS THE ORDER WAS PASSED TO COMPLY WITH THE DIRECTIONS GIVEN BY THE LD. CIT U/S 264 OF THE ACT. ON THE OTHER HAND THE LD. DR RELIED ON THE ORDERS OF T HE AUTHORITIES BELOW. THE LD. AR IN HIS REJOINDER FURTHER SUBMITTED THAT ORDER OF THE AO PA SSED U/S 147 OF THE ACT GOT MERGED WITH THE ORDER U/S 264 OF THE ACT PASSED BY THE LD. CIT AND THEREFORE THE SAME CANNOT BE RECTIFIED U/S 264 OF THE ACT. ITA NO.495/KOL/2015-GANESHDAS RAMGOPAL A.Y.1999-2000 5 THE LD. AR WITHOUT PREJUDICE TO THE ABOVE ALSO SUBM ITTED THAT IF THE ORIGINAL ORDER IS TO BE RECTIFIED THEN THE PERIOD OF FOUR YEARS WHICH SHOUL D BE COUNTED FROM THE DATE OF THE ORIGINAL ORDER I.E. 29.09.2003. THUS, THE PERIOD FOR RECTIFY ING THE ORDER ENDS DATED 31.03.2008 AND THE NOTICE IN THE INSTANT CASE FOR RECTIFICATION U/S 15 4 OF THE ACT WAS ISSUED ON 07.07.2008 WHICH IS BARRED BY TIME. SUBSEQUENTLY THE RECTIFICATION ORDE R U/S 154 OF THE ACT WAS PASSED DATED 17.10.2008 WHICH IS AGAINST THE PROVISION OF LAW. ON THE OTHER HAND, LD. DR VEHEMENTLY RELIED ON THE ORDER OF AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RELATES TO THE MUNICIPAL TAXES RECEIVED BY THE ASSESSEE FROM ITS TENANTS. THE AO IN ITS ORDER PASSED U/S 14 7 OF THE ACT TREATED THE SAME AS INCOME FROM OTHER SOURCES. AGAINST THE ORDER OF AO THE ASSESSEE FILED A REVISIONARY PETITION TO THE LD. CIT U/S 264 OF THE ACT WHEREIN THE ADDITION WAS DELETED. AC CORDINGLY THE AO TREATED THE ADDITION IN ITS EFFECT ORDER PASSED ON 30.5.2006. HOWEVER, SUBSEQUE NTLY, THE AO STATED THAT THE INCOME THAT THE MUNICIPAL TAXES SHOULD HAVE BEEN FORMED PART OF THE ANNUAL VALUE OF THE LET OUT PROPERTIES AND ACCORDINGLY HE RECTIFIED THE ORDER OF LD. CIT PASSE D U/S 264 OF THE ACT BY TREATING THE MUNICIPAL TAXES AS PART OF THE ANNUAL VALUE. AT THE OUTSET, W E FIND THAT THERE WAS NO DIRECTION IN THE ORDER OF THE LD. CIT U/S 264 OF THE ACT FOR ADDING THE MUNIC IPAL TAXES IN THE ANNUAL VALUE OF THE PROPERTIES. WHEN THERE WAS NO SUCH DIRECTION THEN T HE VIEW OF THE AO ASSUMING THE APPARENT MISTAKE IN THE ORDER OF THE LD. CIT U/S 264 OF THE ACT IS NOT SUSTAINABLE IN THE EYES OF LAW. THE PROVISIONS OF SECTION 154 OF THE ACT ARE VERY CLEAR AND THE SAME CAN BE RESORTED BY THE AO ONLY IN A CASE WHERE THE MISTAKE IS APPARENT FROM THE RE CORDS. WHILE DOING SO, WE FIND SUPPORT AND GUIDANCE FROM THE JUDGMENT OF THE HONBLE SUPREME C OURT IN THE CASE OF ITO VS. VOKART BROS REPORTED IN 82 ITR 50 WHEREIN IT WAS HELD AS UNDER :- A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG-DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. A DECISION ON A DEBATA BLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. THE POWER OF THE OFFICERS MENTIONE D IN S. 154 OF THE IT ACT, 1961 TO CORRECT 'ANY MISTAKE APPARENT FROM THE RECORD' IS UNDOUBTEDLY NO T MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF AN 'ERROR APPARENT ON THE FACE OF THE RECORD.' IN VIEW OF THE ABOVE, WE HOLD THAT THERE WAS NO MIS TAKE APPARENT FROM THE RECORD IN THE ORDER OF THE LD. CIT PASSED U/S 264 OF THE ACT. ITA NO.495/KOL/2015-GANESHDAS RAMGOPAL A.Y.1999-2000 6 6.1 WE ALSO FIND THAT THE ASSESSEE CANNOT RECTI FY ITS ORIGINAL ORDER PASSED ON 29.09.2003 U/S 147 OF THE ACT AS THE SAME HAS BEEN MERGED WITH THE ORDER OF THE LD. CIT U/S 264 OF THE ACT. IN THIS CONNECTION, WE RELY IN THE CASE OF ITC LIMITED VS INSPECTING ACIT AND OTHERS REPORTED IN 249 ITR 104 WHEREIN IT HAS BEEN HELD AS UNDER :- THE SUBJECT OF REBATE WAS AN ISSUE DECIDED ULTIMATE LY BY THE TRIBUNAL. THE RATE HAS ALSO BEEN FIXED BY THE APPELLATE AUTHORITY AND AFFIRMED BY TH E TRIBUNAL. HENCE, BY WAY OF RECTIFICATION SUCH REBATE CANNOT BE DECREASED OR INCREASED BY WAY OF R ECTIFICATION. SINCE THE QUESTION OF PAYMENT OF REBATE AND THE RATE OF REBATE HAD ONCE BEEN DECIDED AND REACHED ITS FINALITY BEFORE THE TRIBUNAL IT IS NOT OPEN FOR THE AO TO REVISE HIS ORDER WHICH HE HAS PASSED IN COMPLIANCE WITH THE DIRECTION OF THE APPELLATE AUTHORITY AFFIRMED BY THE TRIBUNAL. E VEN IF SUCH ISSUE CAN BE REOPENED SUCH CAN ONLY BE REOPENED BY THE TRIBUNAL AND NONE ELSE. THE REVENUE ACCEPTED THE ORDER OF THE TRIBUNAL, DID NOT PROCEED WITH THE REFERENCE APPLICATION AND ALLOWED THE SAME TO BE DISMISSED FOR NON- PROSECUTION. HAVING DONE SO, THE ORDER OF ASSESSMEN T PASSED BY THE AO IN COMPLIANCE WITH THE DIRECTION OF THE APPELLATE AUTHORITY HAS BEEN ACCEP TED BY THE REVENUE AND THE SAME CANNOT BE REOPENED AT THIS STAGE IN THE MANNER IT HAS BEEN AT TEMPTED.T.S. BALARAM, ITO VS. VOLKART BROTHERS (1971) 82 ITR 50 (SC) : TC 53R.165 AND OIL INDIA L TD. VS. CIT (1982) 27 CTR (CAL) 259 : (1982) 138 ITR 836 (CAL) : TC 57R.665 RELIED ON; CIT VS. METHOD TRADING & INVESTMENT LTD. (2001) 165 CTR (CAL) 541 : (2000) 246 ITR 588 (CAL ) APPLIED; ZDZIZLAW SKAKUZ VS. CIT (1986) 50 CTR (AP) 39 : (1986) 158 ITR 420 (AP) : T C 32R.599, SIRSA INDUSTRIES VS. CIT (1983) 36 CTR (P&H) 130 : (1984) 147 ITR 238 (P&H) : TC 13 R.372 AND SAIT NAGJEE PURUSHOTAM & CO. LTD. VS. THIRD ADDL. ITO (1964) 51 ITR 33 (KER) DISTINGUISHED. WE FURTHER FIND THAT IN CASE THE AO WISHES TO RECTI FY ITS ORIGINAL ORDER U/S 147 OF THE ACT THEN ALSO THE SAME NEEDS TO BE RECTIFIED WITHIN FOUR YEA RS AS CONTEMPLATED UNDER THE PROVISION OF SECTION 154 OF THE ACT. IN THE INSTANT CASE THE AO HAS RECTIFIED THE ORDER AFTER THE EXPIRY OF FOUR YEARS WHICH IS ALSO NOT VALID IN THE EYES OF LAW. I N THIS REGARD, WE FIND GUIDANCE FROM THE ORDER OF THIS CO-ORDINATE BENCH IN THE CASE OF SHRI HANUMAN SUGAR VS ACIT IN ITA NO.341/KOL/2010 VIDE ORDER DATED 08.06.2016, WHEREIN IT HAS WAS HEL D AS UNDER :- WE FIND THAT FROM THE END OF THE FINANCIAL YEAR I.E . 1997-98 THE AO IS BOUND TO MAKE THE RECTIFICATION ORDER WITHIN FOUR YEARS AND IN THIS C ASE THE AO IS BEYOND FOUR YEARS FROM THE ORIGINAL ASSESSMENT ORDER DATED 30.03.2001. THEREFO RE, WE ARE OF THE OPINION THAT THE IMPUGNED ORDER DT.30.03.2009 PASSED BY THE AO IS HELD TO BE INVALID BY TREATING THE SAME AS BARRED BY LIMITATION. ACCORDINGLY RESPECTFULLY FOLLOWING THE PRECEDENT AS ABOVE WE HOLD THAT THE ORDER PASSED U/S 154 OF THE ACT IS NOT MAINTAINABLE IN THE EYES OF LAW. THEREFORE, WE DIRECT THE LOWER AUTHORITIES TO DELETE THE ADDITION AS DISCUSSED ABOVE. SINCE THE R ECTIFICATION ORDER PASSED U/S 154 OF THE ACT IS NOT SUSTAINABLE AND THE ASSESSEE GETS RELIEF ON TEC HNICAL GROUNDS, THEREFORE WE ARE INCLINED TO ITA NO.495/KOL/2015-GANESHDAS RAMGOPAL A.Y.1999-2000 7 ADJUDICATE THE MATTER ON MERIT. HENCE, WE REVERSE T HE ORDER PASSED BY THE LOWER AUTHORITIES AND THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED IN THE COURT ON 10/03/2017 SD/- SD/- [S.S.VISWANETHRA RAVI] [SHR I WASSEM AHMED] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 10/03/2017 {RG SPS}/DKP* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE SRI GANESHDAS RAMGOPAL, 1 CHITARANJAN AVENUE, KOLKATA-72 2. RESPONDENT DCIT, CIRCLE-40M 3, GOVERNMENT PLAC E WEST, KOLKATA-001 3. CIT(A)- KOLKATA. 4. CIT , KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. BY ORDER /TRUE COPY/ ASSTT.REGI STRAR, ITAT, KOLKATA BENCHES