ITO, WD-6(1), KOLKATA, Kolkata V. M/s Calcutta Resources Pvt. Ltd., Kolkata

ITA 662/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1185 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 12-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: M D SHAH
• Keywords: Reopening of assessment
• Section: 147; 68

Judgement Text

1 ITA NO.661&662/KOL/2016 CALCUTTA RESOURCES PVT. LTD., AYS- 2003-04 & 2005-0 6 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NOS. 661 & 662/KOL/2016 ASSESSMENT YEARS: 2003-04 & 2005-06 INCOME-TAX OFFICER, WARD-6(1), KOL. VS. M/S. CALCUT TA RESOURCES (P) LTD. (PAN: AACCC2619L) APPELLANT RESPONDENT DATE OF HEARING 08.03.2018 DATE OF PRONOUNCEMENT 28.03.2018 FOR THE APPELLANT SHRI ARINDAM BHATTACHARJEE, ADDL. CIT FOR THE RESPONDENT SHRI M. D. SHAH, AR ORDER PER SHRI A.T.VARKEY, JM BOTH THESE APPEALS FILED BY THE REVENUE ARE AGAINST THE ORDER OF LD. CIT(A)-8, KOLKATA DATED 29.01.2016 FOR AYS 2003-04 AND 2005-0 6. 2. THE FOLLOWING SOLE COMMON GROUND OF APPEAL IS RA ISED BY THE REVENUE: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WH ETHER CIT(A) WAS RIGHT IN DELETING THE ADDITION MADE U/S. 68 THOUGH, THE CREDITWORTHINESS OF THE SHAREHOLDERS AND GENUINENESS OF THE TRANSACTION COULD NOT BE EXPLAINED. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE DREW OUR ATTENTION TO THE FACT THAT THE LD. CIT(A) HAS ANULLED THE ASSESSMENTS FRAMED BY THE AO FOR BOTH YEARS BY ALLOWING THE LEGAL ISSUE RAISED BY THE ASSESSEE AGAINST THE REOPENING OF ASSESSMENT ITSELF. ACCORDING TO THE LD. AR, SINCE THE REVENUE HAS NOT CHALLENGED THIS DECISION OF THE LD. CIT(A), THE ADJUDICATION OF THIS APPEAL BY THIS TRIBUNAL WILL B E MERE ACADEMIC IN NATURE, WHEN THE REASSESSMENT IN QUESTION HAS BEEN ALREADY ANNULLED BY THE LD. CIT(A). ON THE OTHER HAND, LD. DR RELIED ON THE DECISION OF AO. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE LD. CIT(A) HAS ANNULLED THE REASSESSMENT FRAMED BY THE AO AFTER 2 ITA NO.661&662/KOL/2016 CALCUTTA RESOURCES PVT. LTD., AYS- 2003-04 & 2005-0 6 REOPENING THE ASSESSMENTS IN QUESTION. HOWEVER, TH E LD. CIT(A) HAS UPHELD THE GROUND RAISED BY THE ASSESSEE AGAINST THE VERY ACTION OF A O TO REOPEN AND HAS ANNULLED THE REASSESSMENT FRAMED BY THE AO. WE NOTE THAT REVENU E THOUGH HAS PREFERRED AN APPEAL AGAINST THE ORDER OF LD. CIT(A) HAS NOT PREFERRED T O QUESTION THE ACTION OF LD. CIT(A) IN ANULLING THE REASSESSMENT ITSELF. THE REVENUE HA S PREFERRED THESE APPEALS ONLY ON MERITS. IN SUCH A SCENARIO, WE NOTE THAT REVENUE APPEALS AR E NOT MAINTAINABLE FOR THE SIMPLE REASON THAT REASSESSMENT FRAMED BY THE AO FOR BOTH YEARS I S ON THE FOUNDATION BUILT ON THE REOPENING U/S. 147 OF THE ACT, WHICH ITSELF HAS BEE N ANNULLED. SO THE LEGAL EFFECT OF SUCH AN ACTION OF LD. CIT(A) IS THAT WHEN THE REOPENING IS HELD TO BE NULL OR ANNULLED, THE JURISDICTION OF AO TO REOPEN ITSELF HAS BEEN HELD T O BE BAD IN LAW, SO THE REASSESSMENT IS VOID IN THE EYES OF LAW AND SO THERE IS NO REASSE SSMENT EXISTING IN THE EYES OF LAW. SO, WE CANNOT ADJUDICATE ON AN ASSESSMENT/(REASSESSMENT) W HICH IS NOT EXISTING IN THE EYES OF LAW AND SO THE APPEALS PREFERRED BY THE REVENUE, WITHOU T CHALLENGING THE IMPUGNED ACTION OF THE LD. CIT(A) IN ANNULLING THE REASSESSMENT FRAMED FOR BOTH YEARS IS NOT MAINTAINABLE AND, THEREFORE, DISMISSED. 5. IN THE RESULT, BOTH APPEALS OF REVENUE ARE DISMI SSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28.03.2018 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28TH MARCH, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ITO, WARD-6(1), KOLKATA. 2 RESPONDENT M/S. CALCUTTA RESOURCES (P) LTD., 41 , N. S. ROAD, KOLKATA- 700001. 3. THE CIT(A) KOLKATA. 4. 5. CIT KOLKATA DR, ITAT, KOLKATA. / TRUE COPY, BY ORDER, SR. PVT. SECRETARY