Jatrik Unemployed Engg Co - Opt Society Ltd, Hooghly V. C.I .T.,Burdwan, Burdwan

ITA 765/KOL/2013

• Counselvise Citation: 76523514 RSA 2013
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2014
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 10-04-2013
• Court: TRIBUNAL
• Department Lawyers: VAINDER MEHTA LD LD
• Assessee Lawyers: SOMNATH GHOSH LD AR
• Keywords: Difference of opinion; Change of opinion
• Section: 263; 133(6)

Judgement Text

, C INCOME TAX APPELLATE TRIBUNAL, BENCH- C KOLKATA ( ) BEFORE . , ! SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER '#$ /AND 1 & ' , ! SHRI GEORGE MATHAN, JUDICIAL MEMBER $( / ITA NO.765/KOL/2013 A.Y 2008-09 M/S. JATRIK UNEMPLOYED ENGINEERS CO-OPERATIVE SOCIETY LTD PAN: AAAJJ 0293N - #' - VERSUS - . COMMISSIONER OF INCOME-TAX, BURDWAN ( &* / APPELLANT ) ( +, &* / RESPONDENT ) &* .' / FOR THE APPELLANT / SHRI . SOMNATH GHOSH, ADVOCATE, LD.AR +,&* .' / FOR THE RESPONDENT: / SHRI . VAINDER MEHTA, LD. CIT/DR LD.JCIT/SR.DR /'#0 1 2 /DATE OF HEARING : 31-01-2014 34 1 2 /DATE OF PRONOUNCEMENT:05/02/2014 5 / ORDER 1 &' , ! SHRI GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX, BURDWAN IN M. NO. R-31 /263/04/CIT/BWN/2012- 13/3101-03 DATED 21-03-2013 FOR THE ASSESSMENT YE AR 2008-09. 2. SHRI SOMNATH GHOSH, ADVOCATE, LEARNED AR REPR ESENTED ON BEHALF OF THE ASSESSEE. AND SHRI VARINDER MEHTA, LEARNED CIT/DR REPRESENTED ON BEHALF OF THE REVENUE. 3. IN THE ASSESSEES APPEAL, THE ASSESSEE HAS RAIS ED THE FOLLOWING GROUNDS OF APPEAL:- 1. FOR THAT NONE OF THE CONDITIONS PRECEDENT FOR TH E ASSUMPTION OF JURISDICTION U/S. 263(1) OF THE INCOME TAX ACT, 1961 EXISTED AND/OR HAVE BEEN COMPLIED WITH AND/ OR FULFILLED ON THE PA RT OF THE LD. COMMISSIONER OF INCOME TAX, BURDWAN IN THE INSTANT CASE AND THE ILLEGITIMATE ORDER PASSED IN PURSUANCE TO THE IMPU GNED NOTICE DATED 17-01-2012 ISSUED U/S. 263 OF THE INCOME TAX ACT, 1 961 IS AB INITIO VOID, ULTRA VIRES AND EX-FACIE NULL IN LAW. ITA NO.765/KOL/2013 M/S. JATRIK UNEMPLOYED ENGNRS CO-OP. SOC. LTD 2 II. FOR THAT THE LD. COMMISSIONER OF INCOME TAX, BURDWAN WAS REMISS IN FAILING TO APPRECIATE THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE IN THE PROPER PERSPECTIVE AND THUS MISLED HIMSELF IN THE MATTER WHICH RESULTED IN THE ASSUMPTION OF JURI SDICTION U/S. 263 OF THE INCOME TAX ACT, 1961 AND THE PREJUDICIAL ACT ION RESTORED TO IN THIS BEHALF IS WHOLLY ARBITRARY, UNWARRANTED AND P ERVERSE. III. FOR THAT THE IMPUGNED ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX, BURDWAN DIRECTING THE LD. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, BURDWAN TO RE -EXAMINE AND RE-VERIFY THE AMOUNT OF CONTRACTUAL RECEIPTS DISCLO SED BY THE APPELLANT RESTS ON EXTRANEOUS PARAMETERS NOT GERMA NE TO THE ISSUE AND THE SPECIOUS CONCLUSION REACHED ON THAT BEHALF IS COMPLETELY UNFOUNDED, UNJUSTIFIED AND UNTENABLE IN LAW. IV. FOR THAT THE LD. COMMISSIONER OF INCOME TAX, B URDWAN MISREAD EVIDENCES, CONSIDERED IMPROPER FACTS, FAILE D TO APPRECIATE PROPER POSITION IN LAW, MISPLACED ONUS OF PROOF IN ISSUING DIRECTION TO THE LD. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCL E-1, BURDWAN FOR COMPELLING HIM TO EXPLORE THE AMOUNT ASSESSAB LE AS GROSS RECEIPTS OF THE APPELLANT WITHOUT ADDUCING ANY J USTIFICATION THEREFOR AND THE PURPORTED FINDINGS REACHED THEREBY IS WHOLL Y ERRONEOUS, FLAWED, INFIRM AND CONTRARY TO THE SETTLED POSITION IN LAW. 4. IT WAS SUBMITTED BY THE LEARNED AR FOR THE AS SESSEE THAT IN THE COURSE OF ASSESSMENT THE AO HAD INVOKED THE PROVISIONS OF SEC TION 133(6) OF THE I.T ACT 1961 AND HAD OBTAINED THE DETAILS OF THE PAYMENTS AND OU TSTANDING AS ON 31-3-2008 FROM M/S. ASANSOL DURGAPUR DEVELOPMENT AUTHORITY, BURDWA N ZILLA PARISHAD, OFFICE OF THE EXECUTIVE ENGINEER, BURDWAN (AGRI-IRRIGATION) AND E ASTERN RAILWAY, HOWRAH. AFTER VERIFYING THE DETAILS THE ASSESSMENT HAD BEEN COMPL ETED. IT WAS THE SUBMISSION THAT EVEN IN THE ORDER PASSED U/S. 263 OF THE I.T ACT 1 961 THE LD. COMMISSIONER OF INCOME-TAX HAS BROUGHT ON RECORD THE FACT THAT T HE NOTICE U/S. 133(6) OF THE ACT HAS BEEN ISSUED. THE DETAILS HAD BEEN OBTAINED AND VER IFICATION DONE. HOWEVER, HE STILL RESORTED TO SETTING ASIDE THE ASSESSMENT FOR RE-EX AMINATION AND RE-VERIFICATION OF THE SAME. IT WAS THE SUBMISSION THAT THE AO HAVING PASS ED THE ASSESSMENT ORDER AFTER EXAMINATION OF ALL THE DETAILS AND HAVING COME TO A CONCLUSION THE CHANGE OF OPINION BY THE LD. COMMISSIONER OF INCOME-TAX AND THE DIRECTION FOR RE-EXAMINATION AND RE-VERIFICATION WAS BAD IN LAW AND WAS NOT PERM ISSIBLE U/S. 263 OF THE I.T ACT 1961. IT WAS THE SUBMISSION THAT THE ORDER PASSED U/S. 263 BY THE LD. COMMISSIONER OF INCOME-TAX OF THE ACT MAY BE QUASHED. ITA NO.765/KOL/2013 M/S. JATRIK UNEMPLOYED ENGNRS CO-OP. SOC. LTD 3 5. IN REPLY, THE LEARNED CIT/DR HAS VEHEMENTLY SUPP ORTED THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX.. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX PASSED U/S. 263 OF THE A CT CLEARLY SHOWS THAT THE AO HAD INVOKED HIS POWERS US/ 133(6) OF THE ACT AND HA D EXAMINED THE CREDITORS. JUST BECAUSE THE CREDITORS ARE MAINTAINING THEIR ACCOUN TS ON CASH BASIS AND THE ASSESSEE IS MAINTAINING ITS ACCOUNTS ON MERCANTILE BASIS D OES NOT MEAN THAT THERE IS AN ERROR IN THE ORDER OF THE AO. IN ANY CASE THE AO HAVING E XAMINED THE ISSUE AND HAVING COME TO A CONCLUSION AFTER EXAMINATION, THE LD. COM MISSIONER OF INCOME-TAX CANNOT USE HIS POWER U/S. 263 OF THE ACT TO DIRECT THE AO FOR RE-VERIFICATION AND RE- EXAMINATION. THE POWERS U/S. 263 OF THE ACT ARE APP LICABLE ONLY WHEN THERE IS ANY SPECIFIC ERROR IN THE ASSESSMENT, WHICH HAS CAUSED PREJUDICE TO THE INTEREST OF THE REVENUE. IN THE PRESENT CASE, SUCH ERROR WHICH HA S CAUSED PREJUDICE TO THE INTEREST OF THE REVENUE HAS ALSO NOT BEEN SHOWN IN THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME-TAX U/S. 263 OF THE ACT. CONSEQUENTLY, TH E ORDER PASSED U/S. 263 OF THE ACT BY THE LD. COMMISSIONER OF INCOME-TAX STANDS QUASH ED. 7. IN THE RESULT, THE ASSESSEES APPEAL IN ITA NO .765/KOL/2013 FOR THE ASSESSMENT YEAR 2008-09 STANDS ALLOWED AS STATED AB OVE. 5 / 6 /' 7 8 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT 05/02 /2014 SD/- SD/- [ . , ! ] [ 1&' , ! ] [ ABRAHAM P.GEORGE, ACCOUNTANT MEMBER ] [GEORGE MATHAN, JUDICIAL MEMBER ] 2 / DATED 05/02/2014 5 1 +..9 :94; / COPY OF THE ORDER FORWARDED TO: 1. . &* / THE APPELLANT : JATRIK UNEMPLOYED ENGINEERS CO- OPERATIVE SOCIETY LTD C/O MR. SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O BUROSHIBTALA, P.S CHINSURAH, DIST: HOOGHLY PIN 7121 05. 2 +,&* / THE RESPONDENT- COMMISSIONER OF INCOME-TAX, BU RDWAN, AAYKAR BHAWAN, BURDWAN COURT COMPOUND P.O BURDWAN, P.S BUR DWAN SADAR,DIST:BURDWAN PIN 713 101. ITA NO.765/KOL/2013 M/S. JATRIK UNEMPLOYED ENGNRS CO-OP. SOC. LTD 4 3 4. . .5' / THE CIT, .5' ( )/ THE CIT(A) 5 . #<.7 +.' / DR, KOLKATA BENCH 6 . GUARD FILE . ,9 +./ TRUE COPY, 5'// BY ORDER, $ /ASSTT REGISTRAR