Development Construction Co, Kolkata V. CIT(Appeals) - XVI,kolkata, Kolkata

ITA 743/KOL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83062 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-04-2013
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHAWNGTHU ADD L
• Assessee Lawyers: N O N E
• Keywords: Rectification of order
• Section: 154

Judgement Text

, SMC(B) , IN THE INCOME TAX APPELLATE TRIBUNAL SMC(B) BENCH : KOLKATA () BEFORE , ) [BEFORE SHRI MAHAVIR SINGH, JM] / I.T.A NO.743/KOL/2013 !'/ ASSESSMENT YEAR: 2008-09 DEVELOPMENT CONSTRUCTION CO. VS. INCOME-TAX OFFICE R, WD-29(4), KOLKATA (PAN: AADFD6033H) ($% /APPELLANT ) (&'$%/ RESPONDENT ) DATE OF HEARING: 19.08.2014 DATE OF PRONOUNCEMENT: 27.08.2014 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SHRI DAVID Z. CHAWNGTHU, ADD L. CIT, SR. DR () / ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XVI, KOLKATA IN APPEAL NO. 2/CIT(A)-XVI/WD-29(4)/KOL/10-11DATED 10.01.2013. A SSESSMENT WAS FRAMED BY ITO, WARD- 29(4), KOLKATA U/S. 143(1) OF THE INCOME-TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEARS 2008-09 VIDE HIS ORDER DATED 14.06 .2010. 2. AT THE OUTSET, IT IS SEEN THAT THE ASSESSEE HAS RAISED THE ISSUE THAT THE CIT(A) SHOULD HAVE TAKEN INTO CONSIDERATION THE DATE OF RECEIPT OF ORD ER OF RECTIFICATION PASSED U/S. 154 OF THE ACT. FOR THIS, ASSESSEE HAS RAISED FOLLOWING TWO GROUNDS : 1. THAT THE LD. CIT(A) DID NOT CONSIDER THE DATE O F RECEIPT OF THE ORDER OF RECTIFICATION U/S. 154 BUT ONLY TOOK COGNIZANCE OF THE DATE OF RECEIPT OF THE INTIMATION U/S. 139(1) ALTHOUGH THE SAID MATTER OF SUBMISSION OF RECTIFICATION PETITION HAD BEEN MENTIONED IN THE STATEMENT OF FACTS FORMING A PART OF FORM NO. 35, WHILE IN HIS ORDER H E REFERRED TO THE DATE OF ISSUE OF THE RECTIFICATION ORDER. HENCE THE ORDER OF THE LD. CI T(A) SHOULD BE SET ASIDE. 2. THAT THE ORDER OF THE LD. CIT(A) IS OTHERWISE IN COMPLETE AND NOT ACCORDING TO THE FACTS OF THE CASE. HENCE THE ORDER AND DEMAND SHOULD BE RECTIFI ED OR SET ASIDE. 3. I HAVE HEARD LD. SR. DR AND GONE THROUGH THE APP EAL FORM NO. 35 FILED BEFORE CIT(A) AND NOTED THAT APPEAL WAS FILED AGAINST THE ORDER P ASSED U/S. 143(1) OF THE ACT DATED 10.02.2010. THE CIT(A) DISMISSED THE APPEAL AS NOT MAINTAINABLE BECAUSE THE APPEAL AGAINST PROCESSING U/S. 143(1) OF THE ACT WAS NOT ACCOMPANI ED BY CONDONATION PETITION. THE CHALLENGE TO THE ORDER OF CIT(A) BY THE ASSESSEE IS ALTOGETHE R ON DIFFERENT GROUND THAT THE CIT(A) DID NOT CONSIDER THE DATE OF RECEIPT OF ORDER OF RECTIFICAT ION U/S. 154 OF THE ACT. THE ASSESSEE IS TAKING A CONTRADICTORY STAND AND IT HAS CLEARLY CHALLENGED T HE PROCESSING DONE BY AO U/S. 143(1) OF THE ACT DATED 10.02.2010 AS IS EVIDENT FROM FORM NO. 35 FILED BEFORE CIT(A) I.E. APPEAL FORM. THE ASSESSEE NEVER CHALLENGED THE RECTIFICATION ORD ER U/S. 154 OF THE ACT. NOW, IF ASSESSEE 2 ITA NO.743/K/2013 DEVELOPMENT CONSTRUCTION CO. AY 08-09 WANTS TO AGITATE THE ISSUE OF PROCESSING U/S. 143(1 ) OF THE ACT, IT CAN DO SO BUT BY FILING CONDONATION PETITION BEFORE CIT(A). IN THE INTERES T OF JUSTICE, I ALLOW ONE MORE OPPORTUNITY TO THE ASSESSEE TO FILE CONDONATION PETITION BEFORE CI T(A), IN CASE IF IT FEELS SO. IN TERM OF THE ABOVE, I SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE TO ALLOW ONE MORE OPPORTUNITY TO THE ASSESSEE. IN CASE, ASSESSEE FIL ES CONDONATION PETITION BEFORE CIT(A), HE WILL ADJUDICATE FIRST ON THE SAME AND IF HE CONDONES THE DELAY, THEN CONSIDER THE MERITS OF THE CASE ALSO. IN TERM OF THE ABOVE, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN OPEN COURT ON 27.08.2014. SD/- , (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 27TH AUGUST, 2014 *+ ,- . JD.(SR.P.S.) () / &0 1(0!2- COPY OF THE ORDER FORWARDED TO: 1 . $% / APPELLANT DEVELOPMENT CONSTRUCTION CO., 14, DURGA PUR LANE, KOLKATA-700027 2 &'$% / RESPONDENT ITO, WARD-29(4), KOLKATA 3 . ) ( )/ THE CIT(A), KOLKATA 4. 5. ) / CIT KOLKATA 089 & / DR, KOLKATA BENCHES, KOLKATA '0 &/ TRUE COPY, ():/ BY ORDER, - /ASSTT. REGISTRAR .