DCIT, Circle-12, Kolkata, Kolkata V. M/s Caplet India Pvt. Ltd., Kolkata

ITA 634/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3116 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2013
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 20-04-2012
• Court: TRIBUNAL
• Department Lawyers: APURBA DAS SRDR
• Assessee Lawyers: S L KOCHAR
• Keywords: Difference of opinion; Change of opinion
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI, PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO. 634 / KOL / 2012 ASSESSMENT YEAR :2004-05 DCIT,CIRCLE-12, P-7, CHOWRINGHEE SQUARE, AAYKAR BHAWN, 7 TH FLOOR, KOLKATA 700 069 V/S . M/S. CAPLET INDIA PVT. LTD., 284/1, BANGUR AVENUE, BLOCK-B, KOLKATA 700 055 [ PAN NO.AABCC 0624 J ] / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI APURBA DAS, SR-DR /BY RESPONDENT SHRI S.L. KOCHAR, AR & SHRI ANIL KOCHAR, AR /DATE OF HEARING 27-06-2013 /DATE OF PRONOUNCEMENT 27-06-2013 / // / O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL FILED BY REVENUE ARISING OUT ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XII, KOLKATA IN APPEAL NO. 156 /CIT(A)-XII/CIR-12/08-09 DATED 10-01-2012. ASSESSMENT WAS FRAMED BY DCIT, CI RCLE-12, KOLKATA U/S. 147 R.W.S. 143(3) OF THE INCOME-TAX ACT, 1961 (HERE INAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 24-11-2008 FOR ASSESSMEN T YEAR 2004-05. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STAT ED THAT REVENUE HAS RAISED THE ISSUE ON MERITS BUT, HE STATED THAT CIT( A) HAS ADJUDICATED THE ADDITIONAL GROUND WHICH WAS RAISED BY ASSESSEE REGA RDING RE-OPENING, WHICH IS HELD TO BE BAD IN LAW BY CIT(A). ONCE THE RE-OPENING U/S. 147 OF ITA NO.634/KOL/2012 A.Y. 2004-05 DCIT CIR-12, KOL V. M/S. CAPLET INDIA PVT. LTD. PAGE 2 THE ACT IS HELD TO BE BAD AND RE-ASSESSMENT FRAMED IS QUASHED ON JURISDICTIONAL ISSUE, WHICH IS NOT CHALLENGED BEFOR E THE TRIBUNAL BY THE ASSESSING OFFICER, THE REVENUES APPEAL CANNOT BE A DJUDICATED ON MERITS. THE RELEVANT PARA OF CIT(A)S ORDER READS AS UNDER: 5. THE ADDITIONAL GROUND RELATES TO REOPENING OF A SSESSMENT U/S. 147 OF THE I. T. ACT, 1961. IN THIS CASE, ASSESSMENT W AS COMPLETED U/S. 143(3) ON 29.12.2006 LATER ON DUE TO AUDIT OBJECTIO N ASSESSMENT WAS REOPENED U/S. 147 OF THE I. T. ACT, 1961 BY A NOTIC E DATED 17.10.2008. THE ASSESSEE HAD RELIED UPON JUDGMENT OF CIT VS. KE LVINATOR 256 ITR PAGE-1 DELHI HIGH COURT, FULL BENCH WHICH HELD THAT A MERE CHANGE OF OPINION DOES NOT JUSTIFY THE RE-ASSESSMENT ON THE S ET OF FACTS. THIS JUDGMENT HAS BEEN UPHELD BY HONBLE SUPREME COURT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE ADDITI ON GROUND OF APPEAL IS ALLOWED. FROM THE ABOVE IT IS CLEAR THAT THE CIT(A) HAS QUAS HED THE REOPENING U/S. 147 OF THE ACT AND ONCE REOPENING IS QUASHED AND RE VENUE HAS NOT CHALLENGED THE SAME, ON MERITS THE ISSUE CANNOT BE ADJUDICATED. HENCE, WE DISMISS REVENUES APPEAL. 3. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER IS PRONOUNCED IN OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (MAHAVIR SI NGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) *DKP !' #- 27/06/2013 + ITA NO.634/KOL/2012 A.Y. 2004-05 DCIT CIR-12, KOL V. M/S. CAPLET INDIA PVT. LTD. PAGE 3 ,,- ,,- ,,- ,,- .- .- .- .- / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '0',1 2 / CONCERNED CIT 4. 2- / CIT (A) 5. -56 ,,,1, ,1 , / DR, ITAT, KOLKATA 6. 689 :; / GUARD FILE. BY ORDER/ , ,1 , +