DCIT, C.C.-VII, Kolkata, Kolkata V. RAJENDRA KUMAR BANKA, Kolkata

ITA 550/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7920 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 10-04-2012
• Court: TRIBUNAL
• Department Lawyers: K K DAS
• Assessee Lawyers: A K TULSIYAN
• Section: 143(3); 153A; 32; 132

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () , , !' ] ]] ] [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SANJAY ARO RA, AM] $ $ $ $ /ITA NO.550/KOL/2012 %& '(/ ASSESSMENT YEAR : 2008-09 (*+ / APPELLANT ) - % - ( -.*+ /RESPONDENT) D.C.I.T.,CENTRAL CIRCLE-VII, -VERSUS- RAJENDRA KUM AR BANKA KOLKATA KOLKATA (PAN : AEAPB 1076 R ) *+ / 0 !/ FOR THE APPELLANT: SHRI K.K.DAS -.*+ / 0 !/ FOR THE RESPONDENT: SHRI A.K.TULSIYAN 1%2 / 3' /DATE OF HEARING : 09.08.2012. 4' / 3' /DATE OF PRONOUNCEMENT : 09.08.2012. !5 / ORDER IMMEDIATELY UPON CONCLUSION OF HEARING OF THIS APPE AL ON 9 TH AUGUST, 2012, THE BENCH PASSED THE FOLLOWING ORDER : 9 TH AUGUST, 2012 REVENUE APPEAL IS DISMISSED. ORDER PRONOUNCED IN OP EN COURT. DETAILED ORDER WILL FOLLOW. PER BENCH THIS APPEAL OF THE REVENUE IS ARISING OUT OF ORDER OF THE CIT(A)-KOLK ATA IN APPEAL NO.20/CIT(A)-XVI/WD-29(4)/2010-11 DATED 30.0 8.2011. ASSESSMENT WAS FRAMED BY I.T.O., WARD-29(4), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR A.YR. 20 08-09 VIDE ITS ORDER DATED 28.12.2010. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS THA T THE ASSESSMENT PROCEEDINGS U/S 153A IN THE SECOND PROVISO WAS NOT TO ABATE AND ASS ESSMENT FRAMED U/S 143(3) OF THE ACT WAS RIGHTLY MADE BY THE AO. FOR THIS THE REVENU E HAS RAISED THE FOLLOWING GROUND: 2 1. THAT THE LD. CIT(A) HAS ERRED IN ADJUDICATING T HE ISSUES RELATING TO THE ADDITIONS MADE IN THE ASSESSMENT DESPITE THE FACTS THAT THE A SSESSMENT ORDER PASSED U/S 143(3) WAS CANCELLED BY THE LD. CIT(A) IN VIEW OF THE SECO ND PROVISO TO SECTION 153A OF I.T.ACT, 1961 AND CIRCULAR NO.7 OF 2003. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE TH ROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEF STATED FACTS ARE THAT A SEARCH U /S 132 OF THE ACT WAS CONDUCTED BY THE DEPARTMENT ON 28.09.2010. THE RELEVANT ASSESSMENT Y EAR INVOLVED IS 2008-09 AND DUE DATE FOR FILING OF RETURN U/S 139(1) OF THE ACT WAS 31.07.2008. ASSESSEE FILED RETURN OF INCOME ON DUE DATE I.E. 31.07.2008. AO ISSUED NOTIC E U/S 143(2) OF THE IT ACT ON 28.02.2009 AND ASSESSMENT U/S 143(3) WAS COMPLETED ON 28.12.2010. THESE FACTS ARE UNDISPUTED. WHEN THESE FACTS WERE PUT TO SR.CIT(DR) HE FAIRLY ADMITTED. BUT THE LD. DR STATED THAT THE ASSESSMENT PROCEEDINGS U/S 143(3 ) WOULD NOT ABATE, AND THE ASSESSMENT U/S 143(3) HAS BEEN RIGHTLY FRAMED BY TH E AO. WE HAVE GONE THROUGH THE PROVISIONS OF SECTION 153A, SECOND PROVISO TO SECTI ON 153A(B) OF THE ACT, IT CLEARLY STATES THAT THE ASSESSMENT OR RE-ASSESSMENT, IF ANY , RELATING TO ANY ASSESSMENT FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN SECTION 153A PENDING ON THE DATE OF INITIATION OF SEARCH U/S 132 OF THE ACT OR REQUISITION U/S 132A OF THE ACT, AS THE CASE MAY BE, SHALL ABATE. NOW WE HAVE TO SEE AS ON THE DATE OF INITIATION OF SEARCH U/S 132 OF THE ACT I.E. 28.09.2010 ASSESSMENT IS PENDIN G OR NOT. THE ASSESSEE FILED ITS RETURN OF INCOME ON 31.07.2008 U/S 139(1) FOR A.YR .2008-09 AND AO ISSUED NOTICE U/S 143(2) OF THE ACT ON 28.2.2009. FROM THE ABOVE FACTS IT IS CLEAR THAT THE AO CAN FRAME ASSESSMENT U/S 143(3) OF THE ACT UPTO 31.03.2 011. BUT SUCH ASSESSMENT IS A PENDING ASSESSMENT AS ON 28.09.2010 WHEN SEARCH WAS CONDUCTED. IN SUCH CIRCUMSTANCES, WE ARE OF THE VIEW THAT ASSESSMENT W AS PENDING WHICH WILL ABATE IN VIEW OF SECOND PROVISO TO SECTION 153A (B) OF THE A CT. HENCE WE FIND NO INFIRMITY IN THE ORDER OF LD.CIT(A) AND THIS APPEAL OF THE REVEN UE IS DISMISSED. HOWEVER, ONCE THIS ASSESSMENT WILL ABATE REVENUE IS FREE TO MAKE ASSES SMENT U/S 153A OF THE ACT IN PURSUANCE TO THE SEARCH CONDUCTED ON ASSESSEE U/S 1 32 OF THE ACT. 3 4. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.08.2012. SD/- SD/- [ , !' ] [ , ] [ SANJAY ARORA ] [ MAHAVIR SI NGH ] ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( (3' 3' 3' 3') )) ) DATE: 09.08.2012. R.G.(.P.S.) !5 / -6 7!6'8- COPY OF THE ORDER FORWARDED TO: 1. RAJENDRA KUMAR BANKA, SUIT NO.212&214, KRISHNA BUIL DING, 224, A.J.C.BOSE ROAD, KOLKATA-700017. 2 THE D.C.I.T., CENTRAL CIRCLE-VII, KOLKATA. 3. THE CIT, 4. THE CIT(A)-XVI, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA .6 -/ TRUE COPY, !5%1/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES