The Institute of Indian Foundrymen, Kolkata V. ITO,Ward-1(3), Exempt,Kolkata, Kolkata

ITA 979/KOL/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3663 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-02-2024
• Assessment Year: 2010-2011
• Appeal Filed On: 17-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Difference of opinion; Change of opinion
• Section: 148; 250

Judgement Text

आयकर अपीलȣय अͬधकरण, कोलकाता पीठ ‘सी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH KOLKATA Įी संजय गग[, ÛयाǓयक सदèय एवं Įी मनीष बोरड, लेखा सदèय के सम¢ Before Shri Sanjay Garg, Judicial Member and Dr. Manish Borad, Accountant Member I.T.A. No.979/Kol/2023 Assessment Year: 2010-11 The Institute of Indian Foundrymen............................................Appellant IIF Centre, 335 Rajdanga Main Road, Kolkata – 700107. [PAN:AAATT6606M] vs. ITO, Ward-1(3), Kolkata................................................................ Respondent Appearances by: Shri S.M. Surana, Advocate, appeared on behalf of the appellant. Shri Raja Sengupta, Addl. CIT-Sr. DR, appeared on behalf of the Respondent. Date of concluding the hearing : February 22, 2024 Date of pronouncing the order : February 26, 2024 आदेश / ORDER संजय गग[, ÛयाǓयक सदèय ɮवारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 07.08.2023 of the National Faceless Appeal Centre [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. At the outset, the ld. Counsel for the assessee has invited our attention to the impugned order of the CIT(A) to submit that the assessee before the ld. CIT(A) had taken legal ground relating to the validity of the reopening of the assessment and also contested the additions made by the Assessing Officer on merits. The ld. Counsel has invited our attention to para 5 page 7 of the impugned order from where the discussion on the legal ground taken by the assessee relating to the validity of the reopening of the assessment commences and the I.T.A. No.979/Kol/2023 Assessment Year: 2010-11 The Institute of Indian Foundrymen 2 concluding/finding of the aforesaid issue has been given at page 21 of the impugned order of the CIT(A), whereby, the ld. CIT(A) has decided the aforesaid legal issue in favour of the assessee. The concluding part of the order of the CIT(A), on this issue, is reproduced as under: “From the reasons recorded by the AO I find that no new material or information was available with the AO for re-opening. I also find that the AO had made inquiry for the same issue during the original assessment proceedings. Though the AO in the remand report has claimed that the re- opening is done on the basis of new information in the form of 26AS statement, but the same was already available with the AO during the course of original assessment proceedings on the basis of which the addition was made during the course of original assessment proceedings. Therefore I agree with the contention of the appellant that the assessment is re-opened on the basis of change of opinion, hence the re-opening of the assessment is not valid has held by the Hon'ble Apex court in the case of CEAT Ltd dated 10/10/2022 as relied upon by the appellant. In view of the above, the grounds of appeal raised by the appellant are allowed.” 2.1 The ld. CIT(A) thereafter proceeded to decide the issues on merits and ultimately decided some issues in favour of the assessee and the others in favour of the revenue and in the result part has mentioned that the appeal of the assessee is partly allowed. The ld. Counsel, in this respect, has submitted that the legal issue relating to the validity of the reopening of the assessment having been decided in favour of the assessee. The findings of the ld. CIT(A) on merits were rendered academic in nature, however, in the concluding part of the order, the ld. CIT(A) has not mentioned so and mentioned that the appeal is partly allowed which has created confusion. 3. We agree with the aforesaid submissions of the ld. Counsel. Since the validity of the reopening of the assessment has been held bad in law and hence the consequential effect is that the assessment framed u/s 147 r.w.s 148 of the Act has been held to be not a valid assessment and therefore, the assessment order framed by the Assessing Officer is to be I.T.A. No.979/Kol/2023 Assessment Year: 2010-11 The Institute of Indian Foundrymen 3 treated as quashed by the CIT(A) on the aforesaid legal ground. Further findings given by the CIT(A) on merits under such circumstances are rendered academic in nature and would not be operative until and unless the findings given by the CIT(A) on the legal ground in favour of the assessee is reversed by any higher forum. It is, therefore, held that in view of the decision of the ld. CIT(A) on the legal issue relating to the validity of reopening of the assessment, the assessment order framed by the Assessing Officer is held bad in law and the same has been quashed. The concluding part of the CIT(A) is to be read as ‘appeal allowed in favour of the assessee’. With the above observations, the appeal of the assessee is treated as allowed. 4. In the result, the appeal of the assessee stands allowed. Kolkata, the 26 th February, 2024. Sd/- Sd/- [डॉÈटर मनीष बोरड /Dr. Manish Borad] [संजय गग[ /Sanjay Garg] लेखा सदèय /Accountant Member ÛयाǓयक सदèय /Judicial Member Dated: 26.02.2024. RS Copy of the order forwarded to: 1. The Institute of Indian Foundrymen 2. ITO, Ward-1(3), Kolkata 3.CIT (A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches