M/s Majumder & Co., Nadia V. ITO, WD-3, NADIA, Kolkata

MA 136/KOL/2015

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 5455 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 30-12-2015
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: A K CHAKRABORTY; S K
• Keywords: Opportunity of being heard; Assessment record
• Section: 143(3); 154

Judgement Text

M.A. NOS. 136 & 137/KOL/2015 (IN I.T.A. NOS. 264 & 173/KOL./2015) ASSESSMENT YEAR: 2005-2006 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC(C) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. NOS. 136 & 137/KOL/2015 (ARISING OUT OF I.T.A. NOS. 264 & 173/KOL/ 2015) ASSESSMENT YEAR: 2005-2006 INCOME TAX OFFICER,................................ ..............................APPLICANT WARD-3, NADIA, KURCHIPOTA LANE, KRISHNANAGAR-741 302 -VS.- M/S. MAJUMDER & COMPANY,........................... ...................RESPONDENT A-9/12(S), KALYANI, DISTRICT-NADIA-741 235 [PAN: AADCM 4695 B] APPEARANCES BY: MD. GHAYAS UDDIN, JCIT, SR. D.R., FOR THE DEPARTMENT SHRI A.K. CHAKRABORTY, ADVOCATE & SHRI S.K. MAJUMDA R, ADVOCATE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JULY 29, 2016 DATE OF PRONOUNCING THE ORDER : AUGUST 05, 2016 O R D E R PER SHRI P.M. JAGTAP :- BY THESE MISCELLANEOUS APPLICATIONS, THE REVENUE IS SEEKING RECTIFICATION OF THE FOLLOWING MISTAKES ALLEGED TO HAVE CREPT IN THE COMMON ORDER OF THE TRIBUNAL DATED SEPTEMBER 23, 20 15 PASSED IN ITA NOS. 264 & 173/KOL/2015:- THE FACT IS THAT THE NOTICE U/S. 143(2) WAS ISSUED ON 26.10.2006 AND SERVED ON 27.10.2006. THEREAFTER RE- FIXATION LETTER WAS ISSUED ON 21.12.2006 AND SERVED ON 22.12 .2006. THE THEN ASSESSING OFFICER INADVERTENTLY MENTIONED IN H IS ORDER THAT THE NOTICE U/S 143(2) WAS SERVED ON 22.12.2006 WHILE DRAFTING HIS ASSESSMENT ORDER BECAUSE OF HIS WRONG NARRATION HONBLE ITAT OPINED THAT THE NOTICE WAS SERVED AFTE R LAPSE OF 12 MONTH WHICH IS NOT CORRECT. THE NOTICE U/S 143(2 ) WAS ISSUED ON 26.10.2006 AND SERVED ON 27.10.2006 (COPY ENCLOSED AS PER ANNEXURE A). THE RE-FIXATION LETTER WAS ISSU ED ON 21.12.2006 AND SERVED ON 22.12.2006 (COPY ENCLOSED AS PER ANNEXURE B). 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT WHILE DISPOSING M.A. NOS. 136 & 137/KOL/2015 (IN I.T.A. NOS. 264 & 173/KOL./2015) ASSESSMENT YEAR: 2005-2006 PAGE 2 OF 5 THE APPEAL OF THE ASSESSEE BEING ITA NO. 264/KOL/20 15 VIDE ITS ORDER DATED 23.09.2015, THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) ON 05.12.2007 WAS QUASHED BY THE TRIBUNAL ON THE GROUND THAT THE NOTICE UNDER SECTION 143(2) WAS SERVED BY THE ASSES SING OFFICER ON THE ASSESSEE ONLY ON 22.12.2006, I.E. BEYOND THE PERIOD OF 12 MONTHS STIPULATED IN THE STATUTE. CONSEQUENTLY THE APPEAL FILED BY THE ASSESSEE BEING ITA NO. 173/KOL/2015 EMANATING FROM THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 154 RECTIFYING THE ORDER DATED 05.12.2007 PASSED UNDER SECTION 143(3) WAS ALSO DISMISSED BY T HE TRIBUNAL BY TREATING THE SAME AS INFRUCTUOUS. NOW THE REVENUE H AS FILED THE PRESENT MISCELLANEOUS APPLICATIONS SEEKING RECTIFICATION OF THE COMMON ORDER OF THE TRIBUNAL DATED 23.09. 2015 ON THE GROUND THAT T HE NOTICE UNDER SECTION 143(2) WAS ACTUALLY SERVED ON THE ASSESSEE ON 27.10.2006, I.E. WITHIN THE STIPULATED PERIOD OF 12 MONTHS AND IT WA S INADVERTENTLY MENTIONED IN THE ORDER PASSED BY THE ASSESSING OFFI CER UNDER SECTION 143(3) THAT THE NOTICE UNDER SECTION 143(2) HAD BEE N SERVED ON THE ASSESSEE ON 22.12.2006. 3. IN SUPPORT OF THE PRESENT MISCELLANEOUS APPLICAT IONS FILED BY THE REVENUE, THE FIRST CONTENTION RAISED BY THE LD. D.R . BEFORE US IS THAT THE NOTICE UNDER SECTION 143(2) SERVED ON THE ASSESSEE ON 27.10.2006, I.E. WITHIN THE STIPULATED PERIOD WAS AVAILABLE IN THE A SSESSMENT RECORDS AND, THEREFORE, THE MISTAKE ON THE PART OF THE TRIBUNAL IN QUASHING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UN DER SECTION 143(3) FOR THE ALLEGED FAILURE OF THE ASSESSING OFFICER TO SERVE THE NOTICE UNDER SECTION 143(2) ON THE ASSESSEE WITHIN THE STIPULATE D PERIOD IS VERY MUCH APPARENT FROM THE RECORD. HE HAS CONTENDED THAT THE WORD THE RECORD INCLUDES ASSESSMENT RECORDS ALSO AND IT IS, THEREFO RE, A FIT CASE TO RECTIFY THE ORDER OF THE TRIBUNAL UNDER SECTION 254(2) AS S OUGHT BY THE REVENUE IN THE PRESENT MISCELLANEOUS APPLICATIONS. HE, HOWE VER, HAS NOT BEEN ABLE TO CITE ANY DECISION EITHER OF THE TRIBUNAL OR ANY HIGHER COURT IN SUPPORT OF THIS CONTENTION. ON THE OTHER HAND, THE LD. COUN SEL FOR THE ASSESSEE HAS M.A. NOS. 136 & 137/KOL/2015 (IN I.T.A. NOS. 264 & 173/KOL./2015) ASSESSMENT YEAR: 2005-2006 PAGE 3 OF 5 RELIED ON THE DECISION OF THE HONBLE ALLAHABAD HIG H COURT IN THE CASE OF LAXMI ELECTRONIC CORPORATION LIMITED VS.- CIT [188 ITR 398], WHEREIN IT WAS HELD THAT THE EXPRESSION RECORD IN THE PHRASE MISTAKE APPARENT FROM THE RECORD USED IN SECTION 254(2) MEANS THE R ECORD BEFORE THE TRIBUNAL. IN THE PRESENT CASE, THE NOTICE UNDER SEC TION 143(2) NOW STATED TO BE SERVED ON THE ASSESSEE ON 27.10.2006 WAS NOT PLACED ON RECORD BEFORE THE TRIBUNAL WHEN THE APPEAL OF THE ASSESSEE WAS HEARD AND DISPOSED OF ON MERIT VIDE ITS ORDER DATED 23.09.201 5. ON THE OTHER HAND, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), WHICH WAS AVAILABLE ON RECORD BEFORE THE TR IBUNAL, CLEARLY MENTIONED THAT THE NOTICE UNDER SECTION 143(2) WAS SERVED ON THE ASSESSEE ON 22.12.2006 AND ON THE BASIS OF THIS POS ITION CLEARLY EVIDENT FROM THE RECORD AVAILABLE BEFORE IT, THE ORDER UNDE R SECTION 143(3) PASSED BY THE ASSESSING OFFICER WAS QUASHED BY THE TRIBUNAL HOLDING THAT THE NOTICE UNDER SECTION 143(2) WAS NOT SERVED BY T HE ASSESSING OFFICER ON THE ASSESSEE WITHIN THE STIPULATED PERIOD OF 12 MONTHS. IN OUR OPINION, IT, THEREFORE, CANNOT BE SAID THAT THERE IS ANY MIS TAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL DATED 23.09.201 5 WARRANTING RECTIFICATION UNDER SECTION 254(2). 4. THE LD. D.R. HAS ALSO RAISED ANOTHER CONTENTION THAT THE ASSESSEE WAS HAVING KNOWLEDGE OF THE NOTICE UNDER SECTION 14 3(2) SERVED ON HIM ON 27.10.2006 AND STILL HE OBTAINED A FAVOURABLE OR DER FROM THE TRIBUNAL WITHOUT CONCEALING THIS INFORMATION KNOWN TO HIM. H E HAS CONTENDED THAT THE ASSESSEE THUS HAS OBTAINED A FAVOURABLE ORDER F ROM THE TRIBUNAL BY FRAUD OR MISREPRESENTATION/SUPPRESSION OF FACTS. RE LYING ON THE VARIOUS JUDICIAL PRONOUNCEMENTS CITED IN SUPPORT, HE HAS CO NTENDED THAT AN ORDER OBTAINED BY FRAUD OR MISREPRESENTATION/SUPPRESSION OF FACTS IS A MISTAKE ON THE PART OF THE COURT AND THE SAME NEEDS TO BE R ECALLED IN THE INTEREST OF JUSTICE. WE ARE UNABLE TO ACCEPT THIS CONTENTION OF THE LD. D.R. AS ALREADY NOTED, THE DATE OF SERVICE OF NOTICE UNDER SECTION 143(2) WAS CLEARLY MENTIONED BY THE ASSESSING OFFICER HIMSELF IN THE ORDER PASSED BY M.A. NOS. 136 & 137/KOL/2015 (IN I.T.A. NOS. 264 & 173/KOL./2015) ASSESSMENT YEAR: 2005-2006 PAGE 4 OF 5 THE ASSESSING OFFICER UNDER SECTION 143(2) AS 22.12 .2006 AND ON THE BASIS OF THE SAME, THE VALIDITY OF THE ORDER PASSED UNDER SECTION 143(3) WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFO RE THE TRIBUNAL ON THE GROUND THAT THERE WAS A FAILURE ON THE PART OF THE ASSESSING OFFICER TO SERVE THE NOTICE UNDER SECTION 143(2) WITHIN THE ST IPULATED PERIOD OF 12 MONTHS. THIS ISSUE SPECIFICALLY RAISED BY THE ASSES SEE IN THE APPEAL WAS DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 23.09. 2015 AFTER GIVING THE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES AND IN SPITE OF SUCH SUFFICIENT AND SPECIFIC OPPORTUNITY, IT WAS NEVER POINTED OUT ON BEHALF OF THE REVENUE THAT THE NOTICE UNDER SECTION 143(2) WAS IN ITIALLY SERVED ON THE ASSESSEE ON 27.10.2006. THE REVENUE NEITHER PRODUCE D THE ASSESSMENT RECORDS TO SHOW THE SERVICE OF NOTICE UNDER SECTION 143(2) ON THE ASSESSEE WITHIN THE STIPULATED PERIOD NOR SOUGHT TI ME TO DO SO. THE POSITION AS CLEARLY MENTIONED IN THE ASSESSMENT ORD ER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF HAVING SE RVED THE NOTICE UNDER SECTION 143(2) ON THE ASSESSEE ON 22.12.2006, THUS REMAINED UNDISPUTED OR UNCONTROVERTED AND KEEPING IN VIEW THE SAME, THE ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE VIDE ITS APPELLATE ORDER DATED 23.09.2015. HAVING REGARD TO ALL THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IT CANNOT BE SAID THAT THE FAVOURABLE ORD ER FROM THE TRIBUNAL WAS OBTAINED BY THE ASSESSEE BY FRAUD OR MISREPRESE NTATION/SUPPRESSION OF FACTS AS ALLEGED BY THE LD. D.R. WE, THEREFORE, FIND NO MERIT IN THIS MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE AND DISMISS THE SAME. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 05, 20 16. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 5 TH DAY OF AUGUST, 2016 M.A. NOS. 136 & 137/KOL/2015 (IN I.T.A. NOS. 264 & 173/KOL./2015) ASSESSMENT YEAR: 2005-2006 PAGE 5 OF 5 COPIES TO : (1) INCOME TAX OFFICER, WARD-3, NADIA, KURCHIPOTA LANE, KRISHNANAGAR-741 302 (2) M/S. MAJUMDER & COMPANY, A-9/12(S), KALYANI, DISTRICT-NADIA-741 235 (3) CIT(A)-XII, KOLKATA, (4) COMMISSIONER OF INCOME TAX, KOLKATA- , K OLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) CIT(APPEALS)-XIX, KOLKATA (7) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.