ACIT, Circle-2, Midnapore, Midnapore V. M/s De Son Marketing Pvt. Ltd., Paschim Medinipur

MA 137/KOL/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6126 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 27-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Reassessment proceedings
• Section: 147

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER (MISC. APPLICATION) M.A. NO.137/KOL/2016 (ARISING OUT ITA NO.481/KOL/2013) / ASSESSMENT YEAR:2006-07 ACIT, CIRCLE-2, SAHOO BHAWAN,KSHUDIRAM NAGARA, MIDNPOARE-721 101 / V/S . M/S DE SON MARKETING PVT. LTD., RAGHUNATHPUR, JHARGRAM-721 507, DIST. PASCHIM MEDINIPUR, [ PAN NO.AABCD 9837 E ] (ORIGINAL APPELLANT) (ORIGINAL R ESPONDENT) (APPLICANT) .. (RESPONDENT) / BY APPLICANT SHRI SOUMAAJIT DASGUPTA, ADDL. CIT-SR-DR !' / BY RESPONDENT SHRI G. BANERJEE, FCA / DATE OF HEARING 15-12-2017 / DATE OF PRONOUNCEMENT 03-01-2018 / ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER:- BY WAY OF THIS MISCELLANEOUS APPLICATION (MA) THE R EVENUE IS SEEKING TO RECALL THE ORDER PASSED BY TRIBUNAL IN ITA NO. 4 81/KOL/2013 DATED 20-01- 2016. 2. THE LD. DR BEFORE US SUBMITTED THAT THE HON'BLE ITAT KOLKATA B BENCH VIDE ITS ORIGINAL ORDER ITA NO.481/KOL/2013 DATED 2 0.01.2013 FOR THE ASSESSMENT YEAR 2006-07 CONFIRMED THE ORDER OF LD. CIT(A) QUASHING THE RE- ASSESSMENT MADE BY THE AO. THE LD. CIT(A) QUASHED T HE RE-ASSESSMENT ORDER U/S 147 ON THE GROUND THAT THE REASONS RECORD ED WERE NOT SUPPLIED TO MA NO137/KOL/2016 ACIT, CIR-2, MID VS. M/S DE SON MARKETING PVT. LTD . PA GE 2 THE ASSESSEE FOR ISSUANCE OF NOTICE U/S 148. THE DE PARTMENT FILED AN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF LD. CIT(A) . THE HON'BLE TRIBUNAL OBSERVED THAT THE ISSUE IS COVERED BY THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF VIDESH SANCHAR NIGAM LTD. 340 ITR 66 (BOM) AND CONFIRMED THE ORDER OF LD. CIT(A). HOWEVER, IN THE CASE OF LD. CIT VIDESH SANCHAR NIGAM LTD. (SUPRA) IT HAS BEEN HELD THAT WHERE REASON RECORDED FOR REOPENING OF ASSESSMENT, THOUGH REPEATEDLY ASKED BY ASSESSEE, WERE FURNISHED ONLY A FTER COMPLETION OF ASSESSMENT, RE-ASSESSMENT ORDER COULD NOT BE UPHELD . IN THE INSTANT CASE THE REASONS FOR REOPENING THE ASSESSMENT WAS DULY COMMU NICATED TO THE ASSESSEE THROUGH A LETTER DATED 07.07.2011 BY THE A O AND THE RE-ASSESSMENT WAS COMPLETED ON 30.12.2011. IN THE GROUNDS OF APPE AL FILED BEFORE TRIBUNAL THAT THIS FACT WAS DULY COVERED IN GROUND NO. 2 AND HON'BLE TRIBUNAL HAS TOTALLY IGNORED THIS FACT AND IN THE APPELLATE ORDE R THIS FACT HAS NOT BEEN DISCUSSED AT ALL. FURTHER THE ASSESSING OFFICER VID E HIS LETTER DATED 18.11.2015 DULY COMMUNICATED THE CIT-DR, ITAT-1, KOLKATA BY PR OVIDING THE COPY OF THE ACKNOWLEDGEMENT RECEIPT IN THIS REGARD. THUS, IT IS EVIDENT FROM RECORDS THAT THE ASSESSEE WAS DULY COMMUNICATED BY PROVIDING THE REASONS RECORDED FOR REOPENING OF ASSESSMENT WELL BEFORE THE COMPLETION OF ASSESSMENT. HENCE, THE TRIBUNAL HAS TOTALLY IGNORED THE FACT AND HAS E RRED IN QUASHING THE RE- ASSESSMENT PROCEEDINGS. THE LD. DR BEFORE US ALSO PRODUCED THE COPY OF POST AL INTIMATION OF DELIVERY TO JUSTIFY THAT THE REASONS RECORDED FOR INITIATION OF PROCEEDINGS U/S 147 OF THE ACT WERE DULY SERVED. 3. ON THE OTHER HAND, LD. AR SUBMITTED THAT THE REA SONS OF FOR REOPENING OF ASSESSMENT U/S 147 OF THE ACT WERE NOT COMMUNICA TED TO THE ASSESSEE. THE LD. AR ALSO SUBMITTED THAT THE COPY OF POSTAL I NTIMATION OF DELIVERY WAS DULY FILED DURING THE APPELLATE PROCEEDINGS BEFORE THE HONBLE ITAT AND AFTER CONSIDERING THE SAME IT WAS HELD THAT THE REASSESSM ENT INVALID. THUS THE REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT WAS RIG HTLY QUASHED BY THE HONBLE ITAT. THE LD. AR SUPPORTED THE ORDER OF HON BLE ITAT. MA NO137/KOL/2016 ACIT, CIR-2, MID VS. M/S DE SON MARKETING PVT. LTD . PA GE 3 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE FOREGOING DISCUSSION WE NOTE TH AT AS PER THE REVENUE THE REASONS FOR REOPENING THE ASSESSMENT WERE DULY COMM UNICATED TO THE ASSESSEE BEFORE THE COMPLETION OF ASSESSMENT. THERE FORE THERE IS APPARENT MISTAKE IN THE FINDING OF HONBLE ITAT WHICH NEEDS TO BE RECTIFIED. WE NOTE THAT THE ARGUMENT OF LD. DR WAS BASED ON TH E POSTAL INTIMATION OF DELIVERY WHICH IS PLACED ON RECORD. HOWEVER WE NOTE THAT HO NBLE ITAT AFTER CONSIDERING THE INTIMATION OF DELIVERY HAS REACHED TO THE CONCLUSION THAT REASONS FOR REOPENING THE CASE WERE NOT SUPPLIED TO THE ASSESSEE IN ITA NO. 481/KOL/2013 AND ACCORDINGLY THE REASSESSMENT PROCE EDINGS WERE QUASHED VIDE ORDER DATED 20.01.2016. THUS WE NOTE THAT THE LD. DR HAS NOT BROUGHT ON RECORD ANY DOCUMENT OTHER THAN THE DOCUMENTS WHICH HAVE ALREADY BEEN CONSIDERED BY THIS TRIBUNAL DURING THE APPELLATE PR OCEEDINGS. ON QUERY ABOUT THE AVAILABILITY OF ANY OTHER ADDITIONAL DOCUMENT T O SUPPORT HIS ARGUMENT, HE FAILED BRING ANY OTHER SUPPORTING DOCUMENT. AT THIS JUNCTURE, WE FIND IMPORTANT TO REFER THE PR OVISION OF SECTION 254(2) OF THE ACT WHICH READS AS UNDER:- (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE AP PARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE B Y THE ASSESSEE OR THE [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS IN TENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BE ING HEARD : FROM THE ABOVE PROVISION OF LAW, WE NOTE THAT THE P OWER OF TRIBUNAL IS LIMITED TO THE EXTENT OF THE MISTAKE WHICH IS APPARENT FROM RECORD. THE HON'BLE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. IN T HE INSTANT CASE, WE FIND THAT REVENUE HAS NOT BROUGHT ANY OTHER ADDITIONAL EVIDEN CE WHICH WAS NOT CONSIDERED BY THE TRIBUNAL. MA NO137/KOL/2016 ACIT, CIR-2, MID VS. M/S DE SON MARKETING PVT. LTD . PA GE 4 IN THIS REGARD, WE ALSO FIND SUPPORT AND GUIDANCE F ROM THE ORDER OF THIS TRIBUNAL IN MA NO.70/KOL/2016 DATED 20.07.2016, WHEREIN IT WAS HELD AS UNDER:- 28. AS RIGHTLY CONTENDED BY THE LEARNED COUNSEL FO R THE ASSESSEE, THE POWER OF THEE TRIBUNAL UNDER S. 254(2) OF THE ACT IS CONF INED TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. THE TRIBUNAL DOES NOT HAV E INHERENT POWER OF RECTIFICATION OR REVIEW OR REVISION. UNLESS THERE I S MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS, CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR M ISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS OR BY WAY OF PROCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APP ARENT FROM THE RECORD. UNLESS THERE IS MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATT EMPT TO REWRITE THE SAME. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENTS AD VANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT O N THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT IN EXE RCISE OF ITS POWER OF RECTIFICATION LOOK INTO SOME OTHER CIRCUMSTANCES WH ICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. THE TRIBUNAL CANNOT RE-DECI DE THE MATTER AND IT HAS NO POWER TO REVIEW ITS ORDER. THE TRIBUNAL HAS NO POWE R TO RECTIFY A DECISION ON DEBATABLE POINT OF LAW. A DECISION ON DEBATABLE POI NT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. 29. WHERE THE TRIBUNAL HAS OVERLOOKED THE RELEVANT MATERIAL ON RECORD, THERE WOULD BE AN ERROR APPARENT FROM RECORD WHICH CAN BE RECTIFIED BY SETTING ASIDE THE ORDER FOR FRESH CONSIDERATION. WHERE A MATERIAL FACT BROUGHT TO THE NOTICE OF THE TRIBUNAL HAS BEEN LOST SIGHT OF, THE TRIBUNA L HAS THE POWER TO RECTIFY THE MISTAKE SO COMMITTED; PROVIDED THE MATERIAL FACT HA S AN IMPORTANT BEARING ON THE ULTIMATE DECISION. THE MISTAKE POINTED OUT IN T HE APPLICATION U/S. 254(2)OF THE ACT BY THE REVENUE IN THE PRESENT CASE CANNOT B E SAID TO FALL NEITHER OF THE ABOVE CATEGORIES. IN VIEW OF THE ABOVE, WE HOLD THAT THERE IS NO MIST AKE APPARENT FROM THE ORDER OF TRIBUNAL AND THEREFORE THE QUESTION OF RECALLING THE SAME UNDER THE PROVISION OF SECTION 254(2) OF THE ACT DOES NOT ARI SE. HENCE, THE GROUND OF MA FILED BY THE REVENUE STAND DISMISSED. 5. IN THE RESULT, MA OF REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING I.E. 3 RD JANUARY, 2018 . SD/- SD/- ( () ( () (N.V.VASUDEVAN) (WASEE M AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) MA NO137/KOL/2016 ACIT, CIR-2, MID VS. M/S DE SON MARKETING PVT. LTD . PA GE 5 KOLKATA, *DKP *- 03/01 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ACIT, CIRCLE-2, SAHOO BHAWAN,KSHUDIRAM NAGAR, MIDNAPORE-721101 2. !' /RESPONDENT-M/S DESON MARKETING PVT. LTD., RAGHUNATHP UR,JHARGRAM-721507, DIST. PASCHIM MEDINIPUR 3. 5 6 / CONCERNED CIT 4. 6- / CIT (A) 5. !5, 5, KOLKATA / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO 5,