ITO,Ward-1(1), Kolkata, Kolkata V. M/s Aminex Merchant (P) Ltd., Kolkata

ITA 566/KOL/2012

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1896 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-05-2017
• Assessment Year: 1996-1997
• Appeal Filed On: 11-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S ALLONG YADEN CIT LD
• Assessee Lawyers: S L KOCHAR; ANIL KOCHAR L
• Keywords: Assessment record
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BE NCH, KOLKATA BEFORE : SHRI J. SUDHAKAR REDDY,ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 566/KOL/2012 A.Y 1996-97 I.T.O., WARD 1(1), KOLKATA VS. M/S. AMINEX MERCHA NT PVT. LTD. PAN AACCA5556A [APPELLANT ] [RESPONDENT ] C.O NO. 12/ KOL/2016 [ITA NO. 566/KOL/2016 A.Y 1996-97] AMINEX MERCHANT VS. I.T.O., WARD 1(1), KOLKATA PVT. LTD. [CROSS OBJECTOR-ASSESSEE ] [DEPARTMENT-RESPONDENT ] APPELLANT BY : SHRI SALLONG YADEN, ADDL.CIT, LD. SR.DR RESPONDENT BY : SHRI S.L. KOCHAR, ADVOCATE, & SHRI ANIL KOCHAR, A DVOCATE, LD.ARS DATE OF HEARING : 24-10-2017 DATE OF PRONOUNCEMENT : 5 TH -01-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS IS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (A), XI X, KOLKATA DATED 09-01-2012 FOR THE ASSESSMENT YEAR 1996-97. THE CRO SS OBJECTION IS FILED BY THE ASSESSEE. 2. THERE IS DELAY OF 08 DAYS IN FILING THE APPEAL O F THE REVENUE AND THE DELAY OF 1495 DAYS IN FILING THE CROSS OBJECTIO N OF THE ASSESSEE. 3. FIRST, WE TAKE UP THE REVENUES APPEAL (ITA NO. 566/KOL/2002 A.Y 1996-97) 4. THE DELAY IN FILING OF THIS REVENUE APPEAL IS CO NDONED AFTER PERUSING THE PETITION FOR CONDONING THE DELAY AND T HE APPEAL IS ADMITTED. ITA NO. 566/KOL/2012 & CO NO. 12/KOL/2016 M/S. AMINEX MERCHANTS PVT. LTD 2 5. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE R ULE 27 OF THE ITAT RULES AND SUBMITTED THAT THE NOTICE ISSUED U/S . 148 OF THE ACT WAS BAD IN LAW FOR THE FOLLOWING REASONS:- A. INITIALLY NOTICE WAS ISSUED U/S. 148 OF THE ACT DTD. 04-12- 1998 AND WAS SERVED ON THE ASSESSEE ON 09/02/1998. WITHOUT CONCLUDING THESE PROCEEDINGS A SECOND NOTICE U/S. 1 48 OF THE ACT DT. 26-03-1999 WAS PURPORTEDLY ISSUED TO THE AS SESSEE. B. NOTICE U/S. 148 DT. 26-03-199 IS SAID TO HAVE BE EN SERVED BY AFFIXTURE ON 28-04-1999 AT THE OLD/WRONG ADDRESS AND HENCE, NOT A VALID NOTICE. C. THE SECOND NOTICE ISSUED U/S. 148 OF THE ACT WAS ISSUED ON 26-03-1999, WHEREAS THE AO STATES THAT HE RECEIV ED THE ASSESSMENT RECORDS FROM THE JURISDICTIONAL AO ONLY IN 2003 FOLLOWING RESTRUCTURING IN THE DEPARTMENT. HENCE, T HESE REASONS RECORDED ARE WITHOUT REFERENCE TO THE MATERIAL AVAI LABLE IN THE ASSESSMENT RECORD. HENCE, THERE IS NON-APPLICATION OF MIND. HENCE, THE NOTICE IS BAD IN LAW. 6. THAT, THE CIT-A IN THIS CASE HAS NOT ADJUDICATED THIS ISSUE OF VALIDITY OF NOTICE. HENCE, IT IS DEEMING THAT THE S AME IS DECIDED AGAINST THE ASSESSEE. FOR THIS PROPOSITION, HE RELI ED ON THE ORDER OF ITAT, CHENNAI, D BENCH IN THE CASE OF INDIA CEMEN TS LTD, IN ITA NO. 582/MAD/2005 FOR THE A.Y 1996-97, REPORTED IN 121 T TJ 568 (CHENNAI), WHEREIN IT IS HELD AS FOLLOWS:- 'IT IS SETTLED POSITION OF LAW THAT IF ANY ISSUE IS NOT ADJUDICATED BY AN APPELLATE AUTHORITY, THEN IT SHAL L BE DEEMED TO HAVE BEEN DECIDED AGAINST THE APPELLANT----- AND HE IS ENTITLED TO AGITATE THIS POINT IN APPEAL BEFORE THE TRIBUNAL EV EN IF APPEAL HAS NOT B.2. THE HON'BLE ITAT, CHENNAI 'D' BENCH IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME-TAX VS. INDIA CEME NTS LTD IN ORDER ITA NO. 582/MAD/2OOS; FOR ASSESSMENT YR. 1996 -97, WHICH IS REPORTED IN 121 TTJ (CHENNAI) S68 HAVE HELD AS U NDER:- 'IT IS SETTLED POSITION OF LAW THAT IF ANY ISSUE IS NOT ADJUDICATED BY AN APPELLATE AUTHORITY, THEN IT SHAL L BE DEEMED TO HAVE BEEN DECIDED AGAINST THE APPELLANT----- AND HE IS ENTITLED TO AGITATE THIS POINT IN APPEAL BEFORE THE TRIBUNAL EV EN IF APPEAL HAS NOT BEEN FILED.' IN VIEW OF THE ABOVE DECISION REND ERED BY THE HON'BLE ITAT CHENNAI, IT IS SUBMITTED THAT THE ADDI TIONAL GROUNDS RAISED ARE IN ORDER AND THE SAME DESERVE TO BE ADMI TTED FOR CONSIDERATION BY HON'BLE TRIBUNAL. ITA NO. 566/KOL/2012 & CO NO. 12/KOL/2016 M/S. AMINEX MERCHANTS PVT. LTD 3 7. THE LD.DR OPPOSED THE CONTENTIONS OF THE ASSESSE E AND RELIED ON THE ORDER OF THE AO AND SUBMITTED THAT THE CIT-A HAS WRONGLY DELETED THE ADDITION. 8. AFTER HEARING THE RIVAL SUBMISSIONS, WE FIND THA T THE AO (ITO, WARD-1(1), KOLKATA) VIDE F NO. WD-1(1)/2005-06/636 DTD. 02-11- 2004 HAS GIVEN A REMAND REPORT TO THE LD. COMMISSIO NER OF INCOME TAX, APPEAL-VII, KOLKATA. THE LD. CIT-A, AFTER REC EIVING THIS REMAND REPORT HAS NOT ADJUDICATED THE ISSUE OF (I) VALIDIT Y OF NOTICE ISSUED U/S. 148 OF THE ACT AND (II) THE ISSUE OF LIMITATIO N. IN THIS REMAND REPORT, THE AO HAS ACKNOWLEDGED THAT PRIMA FACIE IT HAS BEEN PROVED THAT THE ASSESSEE HAD RECEIVED A NOTICE U/S. 148 D T. 4-12-1998 ON 09-12-1998. WHILE SO THERE IS NO BASIS FOR ISSUANCE OF SECOND NOTICE U/S. 148 ON 26-03-1999 BY THE AO (ITO, W -1(1), KOL KATA). WHEN THE PROCEEDINGS THAT COMMENCED ON THE ISSUING THE FIRST NOTICE ARE STILL OPEN, A SECOND NOTICE RE-OPENING THE ASSESSMENT ( W HICH WAS NOT YET CLOSED) CANNOT BE GIVEN. THIS NOTICE IS BAD IN LAW. 9. SECONDLY, WE FIND THAT THE AO RECORDS THAT, HE R ECEIVED THE ASSESSMENT RECORD FROM THE ITO, W-1(1), KOLKATA ONL Y IN 2003. WHILE SO, WE DO NOT UNDERSTAND HOW ON 26-03-1999, A NOTIC E U/S. 148 OF THE ACT WAS ISSUED, BY RECORDING THE REASONS OF RE- OPENING, THAT THE ASSESSEES INCOME LIABLE TO TAX HAS ESCAPED ASSESSM ENT. THE AO CANNOT COME IN SUCH CONCLUSION WITHOUT LOOKING INTO THE ASSESSMENT RECORDS, THE INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED AND THEN STUDYING THE MATERIAL FACTS BASED ON WHICH HE RECORDS REASONS FOR RE-OPENING. HENCE, THE REASONS FOR REO PENING RECORDED WAS BASED ON MERE SURMISES, AS IT WAS DONE WITHOUT REFERENCE TO THE ASSESSMENT RECORDS. SUCH REASONS CANNOT BE SUSTAINE D. WE ALSO FIND THAT THE AO RECORDS THAT A RETURN, INTIMATING CHANG E OF ADDRESS WAS FILED BY THE ASSESSEE BEFORE THE ROC [ REGISTRAR OF COMPANIES]. IT IS CLEAR THAT THE ASSESSEES REGISTERED OFFICE WAS NOT AT THE PLACE ON WHICH SERVICE OF AFFIXTURE WAS DONE BY THE INSPECTO R OF INCOME-TAX. ITA NO. 566/KOL/2012 & CO NO. 12/KOL/2016 M/S. AMINEX MERCHANTS PVT. LTD 4 WHEN SERVICE IS TO BE DONE BY AFFIXTURE, THE MINIM UM EXPECTED IS THAT THE INCOME-TAX INSPECTOR, WHO DONE THIS AFFIXT URE, WOULD ENQUIRE WHETHER THE ASSESSEE RESIDES IN THIS PREMISES OR NO T OR WHETHER THIS IS THE REGISTERED OFFICE OF THE ASSESSEE COMPANY. I N THIS CASE, THE AFFIXTURE WAS DONE AT A WRONG ADDRESS. HENCE, THE S ERVICE OF NOTICE BY AFFIXTURE, BY THE INCOME-TAX INSPECTOR IS BAD IN LAW. THUS, THERE IS NO VALID NOTICE OF THE SECOND 148 NOTICE. HENCE, LI MITATION IS TO BE CALCULATED FROM THE FIRST NOTICE U/S. 148 OF THE ACT. AS THE ASSESSMENT ORDER IS PASSED BEYOND 31/3/2001, IT IS BARRED BY LIMITATION. FOR ALL THESE REASONS, THE ASSESSMENT O RDER IS QUASHED AS BAD IN LAW. 10. CO. NO.12/KOL/2016 (ITA NO.566/KOL/2012 A.Y 199 6-97 ( BY THE ASSESSEE). 11. THE C.O WAS FILED WITH THE DELAY OF 1495 DAYS. THE DELAY IS NOT CONDONED. HENCE, THE SAME IS DISMISSED AS NOT ADMIT TED. 12. IN THE RESULT, THE APPEAL (ITA NO. 566/KOL/2016 ) FILED BY THE REVENUE FOR THE A.Y 1996-97 IS DISMISSED AND CROSS OBJECTION (C.O NO. 12/KOL/2016) FILED BY THE ASSESSEE FOR THE A.Y 1996-97 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH -01-2018 SD/- SD/- J. SUDHAKAR REDDY S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :5 TH -01-2018 ITA NO. 566/KOL/2012 & CO NO. 12/KOL/2016 M/S. AMINEX MERCHANTS PVT. LTD 5 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/REVENUE :INCOME TAX OFFICER, WARD 1(1), R OOM NO. 5, P-7, CHOWRINGHEE SQUARE, KOLKATA-69. 2 RESPONDENT/ASSESSEE: M/S.AMINEX MERCHANT PVT. LTD P-15, INDIA EXCHANGE PLACE, EXTN, 2 ND FLOOR, TODI MANSION, KOLKATA-73. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER SR.PS, H.O.O, ITAT, KOLKATA