M/s. GDM Associates, Purba Medinipur V. ITO, Ward 27(2), Haldia, Purba Medinipur

ITA 592/KOL/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8902 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIROBIN CHOUDHURY CITSRDR
• Keywords: Unexplained investment
• Section: 148

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI, M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 592 / KOL / 20 17 ASSESSMENT YEAR :2009-10 M/S GDM ASSOCIATES SONAMUI, RAMNAGAR,KALINDI, DIST. PURBA MEDINIPUR-721461 [ PAN NO.AAIFG 9805 F ] V/S . INCOME TAX OFFICER WARD-27(2), HALDIA TALPUKUR, HAJANCHAK, PURBA MIDNAPORE- 721461 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SOUMITRA CHOUDHURY, ADVOCATE /BY RESPONDENT SHRIROBIN CHOUDHURY, ADDL. CIT-SR-DR /DATE OF HEARING 05-12-2018 /DATE OF PRONOUNCEMENT 26-12-2018 / O R D E R PER M.BALAGANESH ACCOUNTANT MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKATAS O RDER DATED 06.05.2016 PASSED IN CASE NO.601/CIT(A)-7/WD.27(2)/14-15 INVOL VING PROCEEDINGS U/S 143(3)/R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN S HORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEE PLEADS TWO SUBSTANTIVE GROUNDS IN I TS INSTANT APPEAL. ITS FORMER GRIEVANCE CHALLENGES VALIDITY OF THE RE-OPEN ING / RE-ASSESSMENT AS UPHELD IN THE COURSE OF LOWER APPELLATE PROCEEDINGS . IT THEREAFTER AVERS THAT ITA NO.592/KOL/20-17 A.Y. 2 009-10 M/S GDM ASSOCIATES VS. ITO WD-27(2) HALDIA PAGE 2 THE ASSESSING OFFICER AS WELL AS CIT(A) HAVE ERRED IN LAW AS WELL AS ON FACTS IN MAKING ESTIMATED COST OF CONSTRUCTION ADDITION O F 63,08,735/- AS UNEXPLAINED INVESTMENT. 3. WE COME TO FORMER LEGAL ISSUE FIRST OF ALL. THER E IS NO DISPUTE ABOUT THE ASSESSING OFFICER HAVING COMPLETED THE REGULAR ASSE SSMENT IN ISSUE ON 03.12.2011. RELEVANT ASSESSMENT ORDER TO THIS EFFEC T READS THAT THE ASSESSEE HAD FILED ALL RELEVANT BILLS, VOUCHERS AND DOCUMENT S FOR VERIFICATION OF ITS EXPENDITURES ITEMS. THE ASSESSING OFFICER THEREAFTE R FORMED REASONS TO BELIEVE THAT ASSESSEES INCOME LIABLE TO BE TAXED H AD ESCAPED ASSESSMENT. THERE IS NO DISPUTE THAT IT WAS THE DVOS REPORT AL LEGING SOME DIFFERENCE IN COST OF CONSTRUCTION WHICH SET THE IMPUGNED RE-OPEN ING IN MOTION. THE ASSESSING OFFICER THEREAFTER ISSUED SEC. 148 NOTICE DATED 29.08.2012 AND FRAMED THE IMPUGNED RE-ASSESSMENT ON29.03.2014 ADDI NG THE ALLEGED DIFFERENCE IN COST OF CONSTRUCTION AMOUNTING TO 71,22,750/- AS UPHELD IN THE COURSE OF LOWER APPELLATE PROCEEDINGS. 4. LEARNED COUNSEL REPRESENTING ASSESSEE VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT THE ASSESSING OFFICER HA S ERRED IN LAW AS WELL AS ON FACTS IN RE-OPENING THE ABOVE REGULAR ASSESSMENT BA SED ON DVOS OPINION. THE REVENUES CASE ON THE OTHER HAND IS THAT THE SA ID DVOS REPORT HAD NOT COME DURING THE COURSE OF ASSESSMENT AND THEREFORE, THE ASSESSING OFFICER HAD RIGHTLY INITIATED RE-OPENING PROCEEDINGS AS PER LAW. WE NOTICE IN THIS BACKDROP OF THESE PLEADINGS THAT HON'BLE APEX COURT S DECISION IN ACIT VS. DHARIYA CONSTRUCTION CO. (2011) 197 TAXMAN 202 (SC) HAS SETTLED THE LAW THAT A DVOS REPORT PER SE IS NOT AN INFORMATION FO R THE PURPOSE OF RE-OPENING AN ASSESSMENT U/S 147 R.W.S. 148 OF THE ACT. THEIR LORDSHIPS CONCLUDED THAT AN ASSESSING OFFICER HAS TO NECESSARILY APPLY HIS MIND ON SUCH AN INFORMATION COLLECTED FINALLY CULMINATING IN THE BELIEF OF ESCA PEMENT OF TAXABLE INCOME FROM BEING ASSESSED. NO SUCH MATERIAL EMERGES FROM THE CASE FILE INDICATING THE ASSESSING OFFICER TO HAVE FORMED HIS BELIEF ON THE DVOS REPORT IN ISSUE. ITA NO.592/KOL/20-17 A.Y. 2 009-10 M/S GDM ASSOCIATES VS. ITO WD-27(2) HALDIA PAGE 3 WE THEREFORE DRAW STRONG SUPPORT FROM HON'BLE APEX COURTS ABOVE STATED DECISION TO HOLD THAT THE IMPUGNED RE-OPENING IN TH E INSTANT CASE IS NOT SUSTAINABLE IN THE EYES OF LAW. THE SAME IS ACCORDI NGLY QUASHED. THE ASSESSEE SUCCEEDS IN ITS FORMER LEGAL GROUND. ITS L ATTER GRIEVANCE ON MERIT IS RENDERED INFRUCTUOUS. 5. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 26/ 12/2018 SD/- SD/- ($ &) ( &) (S.S.GODARA) (M.BALAGANESH) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S (- 26 / 12 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S GDM ASSOCIATES, SONAMUI, RAMNAGAR, K ALNDI, DIST. PURBA MEDINIPUR-72146 1 2. /RESPONDENT-ITO WARD-27(2) HALDIA, TALPUKUR, KHAJAN CHAK, PURBA MIDNAPORE 721602 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 $$3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ / 3,