Smt. Saikha Jain (Sovasaria), Kolkata V. A.C.I.T CC - XX,kolkata, Kolkata

ITSSA 41/KOL/2013

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3483 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-08-2016
• Assessment Year: misc
• Appeal Filed On: 05-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Block assessment
• Section: 92

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER IT (SS) A NO. 41 / KOL / 2013 BLOCK ASSESSMENT YEAR :1991-92 TO 2001-02 SIKHA JAIN (SOVASARIA) 46A, RAFI AHMED KIDWAI ROAD, KOLKATA-16 [ PAN NO. ACKPJ 1946 J ] V/S . ACIT, CENTRAL CIRCLE-XX, 110, SHANTI PALLY, E.M. BYE PASS, AAYKAR BHAWAN, POORVA, KOLKATA-107 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI J.M. THARD, ADVOCATE /BY RESPONDENT SHRI G. HANGSHING, CIT-DR /DATE OF HEARING 11-09-2017 !' /DATE OF PRONOUNCEMENT 11-10-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)CENTRAL-III, KO LKATA DATED 20.12.2012. ASSESSMENT WAS FRAMED BY ACIT, CENTRAL CIRCLE-XX, K OLKATA U/S 158BD OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 29.03.2006 FOR BLOCK ASSESSMENT YEARS 1991-92 TO 20 01-02. SHRI J.M. THARD, LD. ADVOCATE APPEARED ON BEHALF OF ASSESSEE AND SHRI G. HANGSHING, LD. DEPARTMENTAL REPRESENTATIVE REPRESEN TED ON BEHALF OF REVENUE. IT(SS)A NO.41/KOL/2013 A.YS. 1991- 92 TO 2001-02 S. JAIN (SOVASARIA) VS. ACIT, CC-XX, KOL. PAGE 2 2. LD. CIT(A) IN ITS GROUND APPEAL HAS CHALLENGED T HE ASSESSMENT PROCEEDINGS MADE U/S. 158BD OF THE ACT ON THE GROUN D THAT NO SATISFACTION HAS BEEN RECORDED BY THE ASSESSING OFFICER BEFORE I NITIATION OF PROCEEDINGS. 3. AT THE OUTSET, LD. AR FOR THE ASSESSEE BEFORE US SUBMITTED THAT THE ASSESSMENT PROCEEDINGS FRAMED U/S. 158BD OF THE ACT ARE NOT SUSTAINABLE IN VIEW OF THE FACT THAT NO SATISFACTION HAS BEEN RECO RDED UNDER THE PROVISION OF SECTION 158BD OF THE ACT. THEREFORE, THE ASSESSMENT FRAMED U/S. 158BD OF THE ACT BY THE ASSESSING OFFICER VIDE ORDER DATED 2 9.03.2006 IS VOID AB INITIO . ON THE OTHER HAND, LD. DR BEFORE US SUBMITTED THAT THE ASSESSEE HAS NOT CHALLENGED THE PROCEEDINGS INITIATED U/S 158BD OF T HE ACT AT THE APPELLATE STAGE. HOWEVER, THE LD. DR CONCEDED THE FACT THAT A SSESSEE IS ENTITLED TO RAISE THIS ISSUE BEING LEGAL IN NATURE BEFORE THE TRIBUNA L. LD. DR FURTHER SUBMITTED THAT ASSESSEE FAILED TO APPEAR BEFORE THE LD. CIT(A ) AND THEREFORE THE ORDER WAS PASSED U/S. 250 OF THE ACT WITHOUT THE ASSISTAN CE OF THE ASSESSEE. THUS, LD. DR FURTHER SUBMITTED THAT THE LEGAL ISSUE AS WE LL AS OTHER ISSUES RAISED BY ASSESSEE CAN BE RESTORED BACK TO THE FILE OF ASSESS ING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. IN REJOINDER, LD. AR CONCEDED THE FACT THAT TO DISP OSE OF THE LEGAL ISSUE RAISED BY THE ASSESSEE REQUIRES THE ORIGINAL ASSESSMENT RE CORDS. ACCORDINGLY THE LD. AR RAISED NO OBJECTION IF THE MATTER IS RESTORED BA CK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSMENT ORDER WAS PASSED BY AO U/S 158BD OF THE ACT WHICH HAS BEEN CH ALLENGED FOR ITS VALIDITY ON THE GROUND THAT NO SATISFACTION HAS BEEN RECORDE D BY THE AO AS ENVISAGED UNDER THE PROVISION OF SECTION 158BD OF THE ACT. 5. AFTER PERUSAL OF THE GROUND RAISED BY ASSESSEE B EFORE LD. CIT(A), WE FIND THAT THE ASSESSEE HAS NOT CHALLENGED THE VALID ITY OF PROCEEDINGS FRAMED U/S. 158BD OF THE ACT BEFORE LD. CIT(A) AS DISCUSSE D ABOVE. BESIDES THE ABOVE, WE ALSO FIND THAT LD. CIT(A) IN THE INSTANT CASE HAS PASSED EX PARTE ORDER ON THE GROUND THAT ASSESSEE FAILED TO APPEAR BEFORE HIM DESPITE SEVERAL IT(SS)A NO.41/KOL/2013 A.YS. 1991- 92 TO 2001-02 S. JAIN (SOVASARIA) VS. ACIT, CC-XX, KOL. PAGE 3 NOTICES FOR HEARING WERE DULY COMMUNICATED TO ASSES SEE. IN THE BACKDROP OF ABOVE STATED FACTS WE ARE OF THE VIEW THAT THE PRIN CIPLE OF NATURAL JUSTICE WILL BE SERVED TO ASSESSEE IF THE MATTER IS RESTORED BACK T O THE FILE OF LD. CIT(A) FOR DE NOVO ADJUDICATION. THUS, IN THE INTEREST OF JUSTICE AND FAIR PLAY WE RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJ UDICATION IN ACCORDANCE WITH LAW. WE ALSO DIRECT THE LD. CIT(A) TO ADJUDICATE TH E ADDITIONAL GROUND OF APPEAL RAISED BY ASSESSEE BEFORE US I.E. NON RECORDING THE SATISFACTION AS MANDATED U/S. 158BD OF THE ACT. IT IS NEEDLESS TO MENTION TH AT THE ASSESSEE SHALL CO- OPERATE BEFORE LD. CIT(A) AS AND WHEN CALLED BY HIM . HENCE, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOS E. 6. IN THE RESULT, FOR STATISTICAL PURPOSE, THE APPEAL OF ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 11 /10/2017 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP #$%&- 11/10 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SIKHA JAIN (SOVASARIA), 46A, RAFI AHMED KIDWAI ROAD, KOLKATA-16 2. /RESPONDENT-ACIT, CC-XX, 110 SHANTI PALLY, E.M. BYE PASS, AAYKAR BHAWAN, POORVA, KOLKATA- 107 3.%.%/ 0 / CONCERNED CIT KOLKATA 4. 0- / CIT (A) KOLKATA 5.34566/ , / , / DR, ITAT, KOLKATA 6.589:; / GUARD FILE. BY ORDER/ $, /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO / ,