Triyogi Narayan Singh, Kolkata V. I.T.O Wd - 28(2),kolkata., Kolkata

ITA 713/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4990 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 28-04-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 04-04-2013
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL JCI
• Assessee Lawyers: SUBASH AGARWAL LD
• Section: 143(3); 234B; 145; 144

Judgement Text

ITA NOS. 713 TO 716/KOL/2013-A-JM- TRIYOGI NARAYAN S INGH 1 IN THE INCME TAX APPELLATE TRIBUNAL, A BENCH, KO LKATA BEFORE : SHRI WASEEM AHMED, ACCOUNTANT MEMBER, AND SHRI S.S VISHWANETHRA R AVI, JUDICIAL MEMBER, AND I.T.A NOS. 713 TO 716/KOL/2013 A.YS. 2005-06 & 2006-07 TRIYOGI NARAYAN SINGH VS. I.T.O 28(2), KOLKA TA PAN: APMPS 8395D (APPELLANT) (RESPON DENT) FOR THE APPELLANT/ASSESSEE : SHRI SUBASH AGA RWAL, ADVOCATE, LD.AR FOR THE RESPONDENT/DEPARTMENT: SHRI RAJAT KUMAR KUREEL, JCIT, LD.DR DATE OF HEARING: 28-04-2016 DATE OF PRONOUNCEMENT: 29- 04-20 15 ORDER SHRI S.S VISHWANETHRA RAVI, JM THESE APPEALS OF THE ASESSEE ARISE OUT OF THE SEPAR ATE ORDERS OF THE LEARNED CIT(A)-XVI, KOLKATA IN APPEAL NO. 92 & 91/CIT(A)-XV I/10-11 DATED 08-02-2013 FOR THE ASSESSMENT YEARS. 2005-06 & 2006-07 AGAINST THE ORDERS OF THE LD.AO PASSED U/S. 254/251/143(3) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT S FOR THE A.YS 2005-06 & 2006-07 WERE FRAMED BY THE LD. AO U/S. 144 OF THE ACT. ON CHALLENGING, CIT(A) AND TRIBUNAL CONFIRMED THE ACTION OF THE AO. THE ASSESS EE PREFERRED AN APPEAL BEFORE THE HONBLE CALCUTTA HIGH COURT AND THE HONBLE HIGH CO URT WAS PLEASED TO SET ASIDE THE ORDER DATED 25-06-2010 PASSED BY THE TRIBUNAL AND REMANDED TO THE AO TO FRAME FRESH ASSESSMENT IN ACCORDANCE WITH LAW U/S. 144 OF THE ACT. AS MATTER STOOD THUS, THE AO LEVIED THE INTEREST U/S. 234B AND 220(2) OF THE ACT AND IMPOSED PENALTIES UNDER SECTION 271(1) (C) OF THE ACT AND THE SAME WAS CONF IRMED BY THE CIT(A) BY HIS ORDER ITA NOS. 713 TO 716/KOL/2013-A-JM- TRIYOGI NARAYAN S INGH 2 AS STATED ABOVE. AGGRIEVED BY WHICH, THE PRESENT AP PEALS WERE FILED BY THE ASSESSEE BEFORE THIS TRIBUNAL FOR CONSIDERATION. 3. DURING THE COURSE OF ARGUMENTS THE LD. COUNSEL F OR THE ASSESSEE SUBMITTED THAT THE ORIGINAL ASSESSMENTS U/S. 144 OF THE ACT WAS RE MANDED TO THE AO IN PURSUANT TO THE DIRECTION OF THE HONBLE HIGH COURT OF CALCUTTA AND NO STEPS WERE INITIATED BY THE AO AND YET TO FRAME THE ASSESSMENT IN PURSUANT TO THE DIRECTION OF THE HONBLE HIGH COURT. THEREFORE, THE PRESENT APPEALS DOES NOT FALL FOR CO NSIDERATION IN VIEW OF THE DIRECTION OF THE HONBLE HIGH COURT. THE LD. DR DID NOT PRODU CE ANY VIEW CONTRARY TO THE SUBMISSIONS MADE BY THE LD.AR. THEREFORE, THE FACT OF THE CASE THAT REMAINS UNDISPUTED AS FAR AS THE SUBMISSIONS OF THE BOTH PA RTIES THAT THE AO DID NOT INITIATE ANY PROCEEDINGS IN ACCORDANCE WITH THE DIRECTIONS OF HO NBLE HIGH COURT OF CALCUTTA. 4. AT THE OUTSET, WE OBSERVE THAT THE ASSESSMENT OR DER PASSED BY THE AO FOR THE A.Y 2005-06 & 2006-07 HAS BEEN REMANDED BACK TO AO BY THE HONBLE HIGH COURT OF CALCUTTA VIDE ITS ORDER DT:29-04-2015 IN ITAT NO. 2 53/2010 FOR MAKING ASSESSMENT. THE RELEVANT PORTION OF OBSERVATION OF HONBLE HIGH COURT IS REPRODUCED HEREIN BELOW:- THEREFORE, THE QUESTION .WHICH ARISES FOR CONSIDER ATION IS, WHETHER IT WAS OPEN TO THE ASSESSING OFFICER TO MAKE THE ASSES SMENT UNDER SECTION 144, OTHERWISE THAN, ON THE BASIS OF ALL RELEVANT M ATERIALS WHICH THE ASSESSING OFFICER HAD GATHERED AFTER GIVING AN. OPP ORTUNITY TO. THE ASSESSEE? MR.AGARWAL, LEARNED ADVOCATE FOR THE RESP ONDENT/ REVENUE SUBMITTED THAT THE ORDER PASSED BY THE ASSESSING OF FICER AND-THE SUBSEQUENT AFFIRMATION THEREOF BY THE ERR (APPEAL) AND THE TRIBUNAL NEED NOT BE DISTURBED BECAUSE THE ORDER IS REALLY ONE PA SSED UNDER SECTION 143(3) OF THE I.T.ACT AND THE REFERENCE TO-SECTION 144 'IS NOTHING MORE THAN A MISTAKE. HE ADDED THAT EVEN' UNDER SECTION. 144 IT WAS OPEN TO THE ASSESSING OFFICER TO MAKE DISALLOWANCES. WE HAVE NO T BEEN IMPRESSED BY THE SUBMISSION ADVANCED BY MR.AGARWAL. A WRONG JUD GEMENT AND A JUDGEMENT CONTAINING A MISTAKE DO NOT SHARE SAME PE DESTAL. A JUDGEMENT CONTAINING A MISTAKE MAY NOT NECESSARILY RENDER THE JUDGEMENT WRONG BUT A WRONG JUDGEMENT IS WRONG BY ALL MEANS. WE ALREADY HAVE QUOTED THE ITA NOS. 713 TO 716/KOL/2013-A-JM- TRIYOGI NARAYAN S INGH 3 RELEVANT PART OF THE ORDER PASSED BY THE ASSESSING OFFICER FROM WHICH IT CLEARLY APPEARS THAT THE ASSESSING OFFICER FIRST E XERCISED HIS POWER UNDER SECTION 145 AND THEREAFTER, HE PROCEEDED TO EXERCI SE POWER UNDER SECTION 144. THEREFORE, IT IS NOT POSSIBLE TO ACCEPT THE SU BMISSION THAT THE ASSESSING OFFICER REALLY. MADE THE ASSESSMENT UNDE R SECTION' 143(3) AND BY MISTAKE HE RECORDED TO HAVE PASSED THE SAME UNDE R SECTION 144. THE SUBMISSION THAT IN AN' ASSESSMENT UNDER SECTION 144 THE ASSESSING OFFICER CAN MAKE DISALLOWANCES MAY BE COR RECT IN THE BACKDROP THAT THE ASSESSEE MAY RAISE CONTENTIONS DISPUTING T HE MATERIALS COLLECTED BY THE ASSESSING OFFICER. AND ALLOWANCES CLAIMED IN THE DEFENCE TO BE TAKEN BY THE ASSESSEE THE ASSESSING OFFICER MAY HAVE OCCA SION TO MAKE DISALLOWANCES, HE HAS EXERCISED POWER UNDER SECTION 145 BECAUSE THE BOOKS OF, ACCOUNTS ARE NOT BELIEVABLE BECAUSE THE BOOKS OF ACCOUNTS ACCORDING TO HIM ARE NEITHER CORRECT, NOR COMPLETE. IF THE ASSESSING OFFICER IN SUCH .'A CASE WISHES TO MAKE AN ASSESSMENT. UNDE R SECTION 144, HE HAS TO MAKE SUCH ASSESSMENT ONLY IN ACCORDANCE WITH SEC TION 144. AN ASSESSING OFFICER IS A CREATURE OF THE STAT UTE. HE CAN EXERCISE POWER EITHER IN ACCORDANCE WITH THE STATUTE OR NOT AT ALL . IF ANY AUTHORITY IS NEEDED REFERENCE MAY BE MADE TO THE JUDGEMENT IN TH E CASE OF BHAVNAGAR UNIVERSITY V. PALITANA SUGAR MILL (P) LTD REPORTED IN 2003(2)SCC 111 WHEREIN THE FOLLOWING VIEWS WERE EXPRESSED. THE STATUTORY INTERDICT OF USE AND ENJOYMENT OF T HE PROPERTY MUST BE STRICTLY CONSTRUED. IT IS WELL SETTLED THAT WHEN A STATUTORY AUTHORITY IS REQUIRED TO DO A THING IN A PARTICULAR MANNER, THE SAME MUST BE DONE IN THAT MANNER OR NOT AT ALL. THE STATE AND OTHER AUTH ORITIES WHILE ACTING UNDER THE SAID ACT ARE ONLY CREATURE OF STATUTE. TH EY MUST ACT WITHIN THE FOUR CORNERS THEREOF. FOR THE AFORESAID REASONS, THE QUESTION FORMULATED ABOVE IS ANSWERED IN FAVOUR OF THE ASSESSEE. THE ORDER UNDER CHALLENGE INCLUDING THE ASSESSMENT ORDER AND THE ORDER PASSED BY THE CI T ARE ALL SET ASIDE AND THE MATTER IS REMANDED TO THE ASSESSING OFFICER TO MAKE THE ASSESSMENT IN ACCORDANCE WITH LAW UNDER SECTION 144. 5. SINCE THE ORIGINAL ASSESSMENT MADE BY THE AO UND ER SECTION 144 OF ACT WAS SET ASIDE BY THE HONBLE HIGH COURT SUPRA AND LEVYING THE INTEREST U/S. 234B AND 220(2) OF THE ACT AND IMPOSING PENALTIES U NDER SECTION 271(1) (C) OF THE ACT BASING ON THE ASSESSMENTS HAVING NO FORCE I N THE EYE OF LAW AND IS AGAINST THE ESTABLISHED PRINCIPLES OF LAW, THEREFOR E, IN OUR VIEW, THE GROUNDS ITA NOS. 713 TO 716/KOL/2013-A-JM- TRIYOGI NARAYAN S INGH 4 RAISED BY THE ASSESSEE HAVE BECOME INFRUCTUOUS TO ADJUDICATE. THUS APPELAS ARE LIABLE TO BE ALLOWED AS INDICATED ABOVE. 6. IN THE RESULT, THE APPEALS OF ASSESSEE ARE ALL OWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 29 /04/2 016 COPY OF THE ORDER FORWARDED TO: 1.. THE APPELLANT/ASSESSEE : SHRI TRIYOGI NARAYAN SINGH 98 GARDEN REACH ROAD, KOL-23. 2 THE RESPONDENT/DEPARTMENT- THE INCOME TAX OFFICE R, WARD 28(2), DAKSHINAPAN, 2 GARIAHAT ROAD SOUTH, KOL - 68. 3 4.. /THE CIT, /THE CIT(A) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS SD/- ( WASEEM AHMED, ACCOUNTANT MEMBER ) SD/- ( S.S VISHWANETHRA, RAVI, JUDICIAL MEMBER) DATE 29 /04/2016