Nandkishore Lakhotia, Howrah V. PCIT-1, KOLKATA

ITA 621/KOL/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 7357 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Appeal Filed On: 30-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Principle of natural justice; Set aside
• Section: 263; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH KOLKATA Before Shri Sanjay Garg, Judicial Member and Shri Girish Agrawal, Accountant Member I.T.A. No.621/Kol/2021 Assessment Year: 2017-18 Nandkishore Lakhotia...................... .........................................................Appellant 545, G.T. Road (South), Howrah Maidan, Howrah-711101. [PAN:AAXPL4116B] vs. PCIT-1, Kolkata.................................................................................Respondent Appearances by: None appeared on behalf of the appellant. Sudipta Guha, CIT-DR, appeared on behalf of the Respondent. Date of concluding the hearing : March 08, 2022 Date of pronouncing the order : March 08, 2022 ORDER Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 02.11.2021 of the Principal Commissioner of Income Tax [hereinafter referred to as ‘PCIT’] agitating against the action of the Ld. PCIT in setting aside the assessment order dated 19.12.2019 invoking revision jurisdiction u/s 263 of the Income Tax Act (hereinafter referred to as the ‘Act’). The assessee in this appeal has taken the following grounds of appeal: “1. FOR THAT on the facts and circumstances of the case and in law, the order passed by Ld. Principal Commissioner of Income Tax (PCIT) – 1 u/s 263 of the Income-tax Act, 1961 (the Act) dated 02.11.2021 Setting aside the assessment framed u/s 143(3) of the Act holding the Same as erroneous and prejudicial to the interest of the revenue, is unlawful, without jurisdiction, and ab-initio void. 2 FOR THAT during the course of Revision proceeding u/s 263 of the Act, your appellant vide response dated 25.10.2021 categorically stated that hearing notice dated 09.09.2021 for hearing on 22.09.2021 was received on 18.10.2021 and requested the Ld. Principal Commissioner of Income Tax (PCIT) - 1 to re-fix the hearing for the ends of natural justice. However, Ld. Principal Commissioner of I.T.A. No.621/Kol/2021 Assessment Year: 2017-18 Nandkishore Lakhotia 2 Income Tax (PCIT) - 1 without considering the reply and without giving any opportunity of being heard passed two unlawful orders u/s 263 29.10.2021 02.11.2021 which tantamount to violation of principal of natural justice. 3. FOR THAT there were two orders u/s 263 dated 29.10.2021/02.11.2021 of the Act passed. There is no provision under the Act for passing two orders without taking the recourse of section 154. Hence, the entire proceeding u/s 263 is a nullity and void and liable to be quashed in appeal. 4 FOR THAT order passed by the Ld. A.O. cannot be said to erroneous on his own view the facts that books of account was not properly 5. FOR THAT from the A.O's action it is obvious that he was fully satisfied with the return filed and now he cannot be permitted to take advantage of his wrong doing, if any, in the grab of section 263 of the Act to save limitation of time frame of original assessment. 6. FOR THAT in case of lack of inquiry the PCIT himself has to carry some inquiry on his own and he cannot under the law merely set aside the Assessment Order whi1ch is contrary to the guidelines as mandated in the Hon'ble Delhi High Court in the case of ITO Vs. DG Housing Projects Ltd.” 2. No one has put in appearance on behalf of the assessee despite notice. We, therefore, proceed to decide this appeal on merits after going through the records. 3. A perusal of the above reproduced grounds of appeal reveals that the main grievance of the assessee is that no proper opportunity of hearing is given to the assessee before passing the impugned order u/s 263 of the Act. A further grievance of the assessee is that the ld. PCIT has passed two orders against the same assessment order i.e. order dated 29.10.2021 and the order dated 02.11.2021 both u/s 263 of the Act setting aside the same assessment order dated 29.10.2021 and 02.11.2021. The facts are apparent that the aforesaid orders dated 29.10.2021 and 02.11.2021 have been passed by the ld. PCIT without application of mind and in a mechanical manner. Even the ld. PCIT proceeded to pass another order dated 02.11.2021 in oblivion of the fact that he has already passed order dated 29.10.2021 on the same subject matter on the same issue relating to same assessment order. Both the orders of the PCIT, therefore, are not sustainable in the eyes of law and the same are set aside. I.T.A. No.621/Kol/2021 Assessment Year: 2017-18 Nandkishore Lakhotia 3 4. In the result, the appeal of the assessee stands allowed. Kolkata, the 8 th March, 2022. Sd/- Sd/- [Girish Agrawal] [Sanjay Garg] Accountant Member Judicial Member Dated: 08.03.2022. RS Copy of the order forwarded to: 1. Nandkishore Lakhotia 2. PCIT-1, Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches