ACIT, Circle - 24(1), Hooghly , Hooghly V. M/s. A.K. Industries , Hooghly

ITA 58/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6256 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 10-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER CIT DR REVEN
• Assessee Lawyers: V N PUROHIT
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA D BENCH, KOLKATA (BEFORE SRI S.S. GODARA, JUDICIAL ME MBER & SRI M. BALAGANESH, ACCOUNTANT MEMBER) ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 ACIT, CIRCLE-24(1), HOOGHLY............ ..................................APPELLANT VS. M/S. A.K. INDUSTRIES.......................... .....................RESPONDENT G T ROAD KALBAZAR P.O.-PANDUA HOOGHLY 712 149 [PAN : AAJFA 3817 E] APPEARANCES BY: SHRI V.N. PUROHIT, FCA, APPEARED ON BEHALF OF THE ASS ESSEE . SHRI SANKAR HALDER, ADDL. CIT D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 27 TH , 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 25 TH , 2019 ORDER PER S.S. GODARA, JM :- 1. THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2008-09 ARISES AGAINST COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKATAS ORDER DATED 31 /10/2017 PASSED IN CASE NO. 15/CIT(A)-6/KOL/2016-17, INVOLVING PROCEEDINGS U/S 147/144, OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 1.1. HEARD BOTH PARTIES. CASE FILES PERUSED. 2. THE REVENUE RAISED THE FOLLOWING SUBSTANTIVE GRO UNDS IN THE INSTANT APPEAL:- 1. THAT ON FACTS AND IN CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) HAS ERRED IN NOT UPHOLDING THE FACT THAT NOTICE ISSUED BY ITO IS WITHIN HIS JURISDICTION AND SERVED WITHIN THE TIME FRAM E. 2. THAT ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT UPHOLDING THE FACT THAT ASSESSM ENT ORDER PASSED BY THE AO IS ON THE BASIS OF VALID NOTICE ISSUED BY THE AO AFTER TAKING PRIOR APPROVAL OF THE APPROPRIATE AUTHORITY. 3. THAT ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT UPHOLDING THE ADDITION OF RS.1 ,91,24,370/- MADE BY AO IS JUSTIFIED AND AS PER LAW. 2 ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 M/S. A.K. INDUSTRIES 4. LEARNED DEPARTMENTAL REPRESENTATIVE TAKES US TO THE CIT(A)S FINDINGS QUASHING THE IMPUGNED RE-OPENING/RE-ASSESSMENT AS FOLLOWS:- 3 ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 M/S. A.K. INDUSTRIES 4 ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 M/S. A.K. INDUSTRIES 5 ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 M/S. A.K. INDUSTRIES 6 ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 M/S. A.K. INDUSTRIES 7 ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 M/S. A.K. INDUSTRIES 8 ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 M/S. A.K. INDUSTRIES 5. IT IS VEHEMENTLY CONTENDED AT THE REVENUES BEHE ST THAT THE CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN HOLDING THAT THE ITO, WA RD 1(1), NOIDA, DID NOT HAVE TERRITORIAL JURISDICTION FOR RE-OPENING THE ASSESSMENT AFTER RE CORDINGS REASONS OF ESCAPEMENT OF ASSESSEES TAXABLE INCOME FROM BEING ASSESSED. IT T HEN QUOTES HONBLE DELHI HIGH COURTS JUDGMENT IN THE CASE OF ABHISHEK JAIN VS. ITO [2018] 94 TAXMANN.COM 355 (DELHI ) HOLDING THAT THE ASSESSING OFFICERS JURISDICTION CANNOT BE CALLED INTO QUESTION AT THE CONCERNED TAX PAYERS INSTANCE AFTER EXPIRY OF ONE MONTH FROM DATE ON WHICH HE WAS SERVED WITH THE NOTICE FOR REOPENING UNDER SECTION 148 OF THE A CT. WE DO NOT FIND ANY MERIT IN EITHER 9 ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 M/S. A.K. INDUSTRIES OF THE REVENUES TWIN ARGUMENTS. CASE FILE SUGGESTS THAT THE ASSESSEE HAS BEEN ASSESSED AT HOOGHLY ONLY RIGHT FROM ASSESSMENT YEAR 2002-03, ONWARDS. THERE IS NO DISPUTE THAT IT IS THE ACIT, CIRCLE-24, HOOGHLY, ITO NOIDA, WHO HAD FRAMED THE IMPUGNED RE- ASSESSMENT IN THE INSTANT CASE. IT THUS EMERGES TO BE AN INSTANCE OF SECTION 148 NOTICE ISSUED BY AN ASSESSING OFFICER NOT HAVING TERRITORI AL JURISDICTION GOING TO ROOT OF THE MATTER. HONBLE JURISDICTIONAL HIGH COURT (SUPRA) C ATEGORICALLY HOLDS THAT SUCH AN ERRONEOUS ASSUMPTIONS OF SECTION 148 PROCEEDINGS IS NOT SUSTAINABLE IN LAW. WE THEREFORE ACCEPT THE ASSESSEES ARGUMENTS SUPPORTIN G THE CIT(A) ACTION QUASHING THE IMPUGNED REOPENING. 6. COMING TO THE REVENUES LATTER PLEA BASED ON HON BLE DELHI HIGH COURTS JUDGEMENT (SUPRA) WE FIND THAT SECTION 148 NOTICE S TOOD SERVED ON THE ASSESSEE ON 09/03/2016 FOLLOWED BY ITS DETAILED OBJECTIONS FILE D BEFORE THE ASSESSING OFFICER ON 21/03/2016 I.E., WITHIN A MONTH. THIS JUDICIAL PREC EDENT DOES NOT APPLY IN FACTS OF THE CASE IN HAND THEREFORE. 7. THIS REVENUES APPEAL IS DISMISSED. KOLKATA, THE 25 TH DAY OF JANUARY, 2019. SD/- SD/- [M. BALAGANESH] [S.S. GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25.01.2019 {SC SPS} 10 ITA NO. 58/KOL/2018 ASSESSMENT YEAR: 2008-09 M/S. A.K. INDUSTRIES COPY OF THE ORDER FORWARDED TO: 1. M/S. A.K. INDUSTRIES G T ROAD KALBAZAR P.O.-PANDUA HOOGHLY 712 149 2. ACIT, CIRCLE-24(1), HOOGHLY 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE CO PY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES