DCIT, CC-XVI, Kolkata, Kolkata V. Polar Marmo Agglomerates Ltd., Kolkata

ITA 645/KOL/2011

• Counselvise Citation: 64523514 RSA 2011
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 28-04-2011
• Court: TRIBUNAL
• Department Lawyers: LKS DEHIYA LD
• Assessee Lawyers: MANISH TIWARI LD
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 148; 143(3)

Judgement Text

, B , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- B CALCUTTA () BEFORE , SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER /AND ! '# ! , SHRI N.VIJAYA KUMARAN, JUDICIAL MEMBER $ / ITA NO. 645/KOL/2011 %!& '(/ ASSESSMENT YEAR: 2001-02 D.C.I.T, CC-XVI, KOLKATA POLAR MARMO AGGLOMERATES LTD PAN AACCP 9151A (*+ / APPELLANT ) - ! - - VERSUS - . (-*+/ RESPONDENT ) *+ . / / FOR THE APPELLANT: / SHRI LKS DEHIYA, LD.DR -*+ . / / FOR THE RESPONDENT: / SHRI MANISH TIWARI, LD.AR . !0 . 1 /DATE OF HEARING : 05-03-2012 2' . 1 /DATE OF PRONOUNCEMENT: 23-03-2012 3 / ORDER ! '# ! , , , , , , ,, , SHRI N. VIJAYA KUMARAN, JUDICIAL MEMBER THIS APPEAL BY THE DEPARTMENT IS FOR THE ASSESSMEN T YEAR 2001-02. IT IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), CENTRAL- II, KOLKATA DATED 14- 01-2011 2. THOUGH THE DEPARTMENT HAS RAISED AS MANY AS FOUR GROUNDS OF APPEAL, BUT THE ONLY EFFECTIVE ISSUE IS ON THE VALIDITY OF RE-OPENING OF ASSESSMENT U/S.147 OF THE INCOME-TAX ACT, 1961. 3. THE FACTS RELEVANT ARE THAT THE ASSESSEE COMPANY ENGAGED IN MANUFACTURE OF AGGLOMERATED MARBLES AND TILES. THE ORIGINAL RETUR N OF INCOME FILED ON 29-10-2001 DECLARING BUSINESS LOSS OF THE YEAR AT RS.7,06,60,142/- APART FROM CARRY FORWARD OF BUSINESS LOSS AND UNABSORBED DEPRECIATION OF EARLIER YEARS OF RS.23, 71,30,999/- AND RS.10,99,45,105/- RESPECTIVELY. THE RETURN WAS ACCOMPANIED WITH AUDI TED ACCOUNTS AND TAX AUDIT REPORT AS REQUIRED U/S. 44AB OF THE INCOME-TAX ACT 1961. THE CASE WAS SELECTED FOR SCRUTINY AND REGULAR ASSESSMENT ORDER U/S. 143(3) OF THE ACT WAS PASSED ON 26-03-2004 DETERMINING LOSS OF THE ITA NO. 645/KOL/2011-B_NVK 2 CURRENT YEAR AND CARRIED FORWARD LOSS OF EARLIER YE ARS AT THE SAME FIGURE AS DECLARED BY THE ASSESSEE COMPANY. 3.1 NOTICE U/S. 148 WAS SERVED ON THE ASSESSEE COMP ANY DATED 08-03-2007, WHICH WAS ADMITTEDLY BEYOND 4 YEARS. 4. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) FOUND THAT ON PERUSAL OF THE REASONS THAT THE ATTEMPTED RE-ASSESSMENT IS INVALID AND THE RE-ASSESSMENT PROCEEDING IS VOID ABINITIO ON THE GROUND THAT THE ASSESSING OFFICER NEVER STATED THAT THE ASSESSMENT ESCAPED ONLY DUE TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FU LL AND TRUE MATERIAL FACTS. THERE IS NOT EVEN A WORD THAT THE DISCLOSURE IN NOTE NO.B-4 OF SCHEDU LE 16 OF AUDITED ACCOUNTS WAS MADE IN THE ORIGINAL ASSESSMENT PROCEEDINGS. THE ASSESSING OFF ICER NEVER STATED THAT THIS NOTE WAS NOT MADE IN THE ORIGINAL ASSESSMENT PROCEEDINGS. THE DISCLOSURE WAS VERY CONSPICUOUS AND IN THE ABSENCE OF SATISFACTION THAT ESCAPED ASSESSMENT WA S ON THE FAILURE OF THE ASSESSEE TO DISCLOSE FULL AND TRUE MATERIAL FACTS NECESSARY FOR THE ASS ESSEES ASSESSMENT FOR THAT ASSESSMENT. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) RELIED ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. M/S. BAER SHOES (I) P. LTD IN ITA NO.706 OF 2010 IN ORDER DATED 03-08-2010. FURTHER, THE DECISION OF HONBLE MUMBAI HIGH COURT IN THE CASE OF CIT VS. JET AIRWAYS (I) LTD REPORTED IN (2011) 333 ITR 236 (MUM) IS DIRECTLY APPLICABLE TO THE PRESENT FACTS OF THE CASE. 5. RESPECTFULLY FOLLOWING SAME, THE GROUNDS RAISED BY THE DEPARTMENT ARE DEVOID OF MERITS AS THE ASSESSEE HAS DISCLOSED MATERIAL FACTS AND TH ERE IS NO FAILURE ON THE PART OF THE ASSESSEE AND ATTEMPTED REOPENING IS BEYOND THE PERIOD OF 4 Y EARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. IN VIEW OF THE ABOVE, WE REJECT TH E GROUNDS RAISED BY THE DEPARTMENT. 6. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISM ISSED. 4 3 5 ! 6 47 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT 23- 03-2012 SD/- SD/- ( , ) ( PRAMOD KUMAR, ACCOUNTANT MEMBER) ( ! '# ! , ) ( N.VIJAYA KUMARAN, JUDICIAL MEMBER ) DATED: 23-03-2012