ITO, WD-29(4), KOLKATA, Kolkata V. Sita Devi Khaitan, Kolkata

ITA 563/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1230 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 08-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHAWNGTHU CIT LD
• Assessee Lawyers: SUNIL SURA NA FCA LD
• Keywords: Difference of opinion; Change of opinion
• Section: 143(3); 147; 148; 263

Judgement Text

1 ITA NO. 563/KOL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: K OLKATA BEFORE: SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JU DICIAL MEMBER I.T.A NO. 563/KOL/2015 A.Y: 2006-07 I.T.O., WARD 29(4), VS. SITA DEVI KHAITAN KOLKATA PAN: ANDP K6540K [APPELLANT] [RESPONDEN T] FOR THE APPELLANT : SHRI DAVID Z. CHAWNGTHU, ADDL. CIT, LD.SR.DR FOR THE RESPONDENT : SHRI SUNIL SURANA, FCA, LD . AR DATE OF HEARING : 03-08-2017 DATE OF PRONOUNCEMENT : 18-10-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DT. 23-02-2015 PASSED BY THE CIT-A, 8, KOLKATA FOR THE ASSESSMENT YEAR 2006-07. 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER TH E CIT-A IS JUSTIFIED IN HOLDING THAT THE REOPENING OF ASSESSME NT U/S. 147 OF THE ACT IS BAD IN LAW IN THE FACTS AND CIRCUMSTANCES O F THE CASE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL AND DERIVING HER INCOME FROM HOUSE PROPERTY AND OTH ER SOURCES. THE ASSESSEE FILED HER RETURN OF INCOME DECLARING TOTAL INCOME OF RS.19,24,528/- AND ASSESSMENT WAS COMPLETED. THERE AFTER, THE ASSESSMENT WAS SUBJECTED TO REVISION PROCEEDINGS U /S. 263 AND THE AO GIVEN EFFECT TO THE SAID DIRECTION OF THE CIT AN D DETERMINED THE INCOME OF THE ASSESSEE AT RS. 25,14,134/- VIDE HIS ORDER DT. 17-11- 2011 U/S. 143(3)/263 OF THE ACT. THEREAFTER, THE AO REOPENED THE ASSESSMENT U/S. 147 BY ISSUING NOTICE U/S. 148 OF T HE ACT DT. 18-03- 2013. IN PURSUANT TO WHICH, THE ASSESSEE FILED HER RETURN OF INCOME ON 19-04-2013, WHEREBY THE AO ADDED AN AMOUNT OF 2 ITA NO. 563/KOL/2015 RS.200,00,000/- (RS. 2 CRORES) TO HER TOTAL INCOME UNDER THE HEAD UNDISCLOSED INCOME. 4. BEFORE THE CIT-A THE ASSESSEE CHALLENGED THE SAM E IN RESPECT OF RE-OPENING OF PROCEEDINGS AND THE CIT-A TAKING I NTO CONSIDERATION SUBMISSIONS OF ASSESSEE HELD THAT THE ASSESSMENT MA DE U/S. 147 IS INVALID. 5. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US C HALLENGING THE IMPUGNED ORDER OF THE CIT-A, SPECIFICALLY FINDING F AULT THAT THE CIT-A WAS WRONG IN NOT CONSIDERING THAT THE AO REOPENED T HE ASSESSMENT U/S. 147 BASING ON NEW DOCUMENTS SHOWING ESCAPED OF INCOME AND THE AO TREATED THE ADVANCE TAKEN BY THE ASSESSEE A S TAXABLE INCOME. FOR WHICH THE LD.DR RELIED ON THE ORDER OF THE AO STATING THAT THE ASSESSEE DID NOT BRING TO THE KNOWLEDGE OF THE AO IN THE ORIGINAL PROCEEDINGS AS WELL UNDER REVISIONAL PROCEEDINGS U/ S. 263 ABOUT THE RECEIPT OF MONIES ON 21/11/05 (RS.75,00,000/), 28/1 2/05 (RS.50,00,000/-), 6/11/06 (RS.25,00,000/-) AND 02/0 3/06 (RS.25,00,000/-) TO AN EXTENT OF RS. 2 CRORES AND T HE ASSESSEE INTENTIONALLY DID NOT DISCLOSE THE SAID AMOUNT TO T HE ASSESSMENT TO AVOID THE TAX AND TO ESCAPE ASSESSMENT. 6. THE LD.AR ARGUED THAT ALL THE DOCUMENTS RELATING TO THE SAID ADVANCE OF RS. 2 CRORES WERE SUBMITTED TO THE AO IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND THE AO RAISED A SPECIFIC QUERY VIDE HIS NOTICE DT. 18-02-08. IN RESPONSE TO WHICH, THE ASSE SSEE FILED ALL THE DOCUMENTS VIDE HER LETTER DT. 16-05-08 AS REQUIRED BY THE AO EXPLAINING THE SAID RECEIPT OF RS. 2 CRORES RECEIVE D AS ADVANCE UNDER DEVELOPMENT AGREEMENT. THE AO ALSO EXAMINED THE BOO KS OF ACCOUNT, DETAILS OF CONFIRMATION OF SAID ADVANCE AN D COMPLETED THE ORIGINAL ASSESSMENT. THEREAFTER, THE ASSESSMENT WAS SUBJECTED TO REVISION U/S. 263 AND THE AO PASSED FRESH ASSESSMEN T ORDER BY GIVING EFFECT TO THE DIRECTION OF CIT, WHEREIN THE SAID AD VANCE OF RS. 2 CRORES WAS IN THE KNOWLEDGE OF AO AND EXAMINED AND DULY ACCEPTED 3 ITA NO. 563/KOL/2015 THE SAME. THE LD. AR FURTHER SUBMITS THAT THE ASSES SEE PROVIDED ALL THE DETAILS TO THE AO AS WELL AS TO THE CIT UNDER R EVISION PROCEEDINGS INSPITE OF WHICH THE AO REOPENED THE PROCEEDING WIT HOUT MAKING ANY REFERENCE TO ANY NEW DOCUMENT THAT CAME TO THE POS SESSION OF AO SHOWING THAT THE ASSESSEE WILLFULLY AND TRULY NOT DISCLOSED THE SAID AMOUNT IN THE ASSESSMENT PROCEEDINGS AND REFERRED T O REASONS RECORDED BY THE AO IN THE IMPUGNED ORDER AT PAGE 4 OF THE CIT-A ORDER. THE LD. AR ARGUED THAT THE AO REOPENED THE A SSESSMENT WITHOUT HAVING ANY NEW MATERIAL OF EVIDENCE AND AD DED THE IMPUGNED AMOUNT OF RS. 2 CRORES AS UNDISCLOSED INCO ME ONLY ON MERE CHANGE OF OPINION, WHICH IS BAD IN LAW. THE LD .AR PRAYED TO DISMISS THE APPEAL OF THE REVENUE AND TO DECLARE TH E ASSESSMENT MADE U/S. 144/147 AS INVALID. 7. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AO DID NOT POINT OUT ANY S PECIFIC NEW MATERIAL EVIDENCE BASING ON WHICH THE ASSESSMENT WA S REOPENED. IT IS CLEAR FROM THE REASONS RECORDED, WHICH WAS REPRO DUCED BY THE CIT- A IN HIS ORDER AT PAGE 4. IT IS OBSERVED THAT THE A O RAISED AN OBJECTION IN RESPECT OF IMPUGNED AMOUNT OF RS. 2 CR ORES VIDE LETTER DT. 18-02-2008 AND THE ASSESSEE COMPLIED WITH THE SAME VIDE HER REPLY DT. 16-05-08 BY STATING THAT SAID RECEIPT WAS AN ADVANCE UNDER DEVELOPMENT AGREEMENT. WE FIND THAT THE CIT-A EXAMI NED THE SAID FACT AND FOUND THAT DETAILS OF SAID RECEIPT OF ADVA NCE OF RS. 2 CRORES SAID TO HAVE BEEN RECEIVED BY THE ASSESSEE UNDER DE VELOPMENT AGREEMENT. THE CIT FOUND NO ERROR TO THIS EFFECT IN VOLVING THE SAID AMOUNT UNDER REVISIONAL PROCEEDINGS. IN OUR VIEW T HAT THE ASSESSEE WAS SUBJECTED TO TWO ASSESSMENTS I) UNDER NORMAL PR OCEEDINGS U/S. 143(3) AND II) UNDER GIVING EFFECT TO REVISION PROC EEDINGS. WE FIND THAT THE AO EXAMINED THE BOOKS OF ACCOUNT AND OTHER DETAILS IN BOTH THE PROCEEDINGS. THEREFORE, THE AO RE-OPENED THE AS SESSMENT PROCEEDINGS ON MERE CHANGE OF OPINION AND NO FINDIN G WAS RECORDED THAT THE ASSESSEE WILLFULLY OR TRULY NOT DISCLOSED ALL THE MATERIAL FACTS 4 ITA NO. 563/KOL/2015 NECESSARY FOR ASSESSMENT. IN VIEW OF THE SAME, WE F IND NO INFIRMITY IN THE IMPUGNED ORDER OF THE CIT-A AND IT IS JUSTIF IED. WE UPHOLD THE SAME. THEREFORE, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18- 10-2017 SD/- SD/- J. SUDHAKAR REDDY S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18-10-2017 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT / REVENUE : THE INCOME TAX OFFICER, WARD 29(4), AAYKAR BHAVAN DAKSHIN, 2 GARIAHAT ROAD SOUTH, 4 TH FLOOR, KOLKATA-68. 2 RESPONDENT / ASSESSEE: SITA DEVI KHAITAN, 1 ASHOKA ROAD, ALIPORE, KOLKATA - 27. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O.O ITAT KOLKATA