Tapas Sarkar, Purulia V. ITO, Wd-3(4), Purulia, Purulia

MA 148/KOL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9453 (ITAT-KOLKATA)
• Duration Of Justice: 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 18-10-2012
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL LD S R D
• Assessee Lawyers: V N PUROHIT LD
• Keywords: Assessment record; Reassessment proceedings
• Section: 147

Judgement Text

, A, , IN THE INCOME TAX APPELLATE TRIBUNAL A B ENCH : KOLKATA [ , !, ] [BEFORE HONBLE SHRI PRAMOD KUMAR, AM & HONBLE SHRI MAHAVIR SINGH, JM] '' # $ /M.A. NO.148/KOL/2012 [IN I.T A NO. 451/KOL/08 A.Y 2000-01] SRI TAPAS SARKAR VS INCOME-TAX OFFICER PAN: AMEPS 1738D WARD 3(4), PURULIA [ /APPLICANT ] ['()/ RESPONDENT ] /APPLICANT BY : SHRI V.N. PUROHIT, LD.AR '() / RESPONDENT BY : SHRI P.K MONDAL, LD. S R.D #+ , - /DATE OF HEARING : 16-11-2012 ./ , - /DATE OF PRONOUNCEMENT: 16-11-2012 0 /ORDER , SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER BY WAY OF THIS PETITION, THE ASSESSEE APPLICANT SUB MITS AS UNDER:- 1. THAT IN CASE OF PETITIONERS APPEALS BEING NOS. 451 TO 453/KOL/2008, A CONSOLIDATED WAS PASSED ON 30TH APRIL 2012 AND SE RVED ON ASSESSEES AUTHORISED REPRESENTATIVE 04-05-2012. 2. AFTER HEARING ASSESSEES A.R.S CONTENTION THAT RE-OPENING OF ASSESSMENT U/S. 147 IS BAD IN LAW AS NO SPECIFIC RE ASONS WERE RECORDED BY ASSESSING OFFICER (A.O.) AND IF RECORDED, FURNIS HED TO ASSESSEE, HONBLE BENCH PASSED A CONSOLIDATED ORDER REMITTING THE MATTER THE FILE OF A.O. ON THE SHORT JURISDICTIONAL ISSUE AFTER DIS CUSSING THE FACTS IN PARAGRAPH AND 4 OF THEIR ORDER AND RELEVANT PORTION THEREOF ARE RE- PRODUCED BELOW FOR THE SAKE CONVENIENCE: FROM PARAGRAPH 3: WHILE LEARNED DEPARTMENTAL REPRESENTATIVE HAS PRODU CED THE ASSESSMENT RECORDS, HE COULD NOT SHOW TO US THE PRE CISE REASONS RECORDED FOR REOPENING THE ASSESSMENT. ALL THAT HE COULD SHOW WAS AN ORDER SHEET ENTRY WHICH VAGUELY REFERS TO REOPENING PROCEEDINGS ON THE GROUNDS THAT INCOME HAS ESCAPED ASSESSMENT BUT THAT ORDER SHEET ENTRY IS CERTAINLY NO SUBSTITUTE FOR RECORDING OF PRECISE REASONS ON THE BASIS OF WHICH THE ASSESSING OFFICER HAS COME TO THE CONCLUS ION THAT THE INCOME HAS ESCAPED ASSESSMENT. IT IS WELL SETTLED IN LAW T HAT IN THE ABSENCE OF SPECIFIC REASONS RECORDED FOR REOPENING THE ASSESSM ENT, THE REASSESSMENT PROCEEDINGS CANNOT BE VALIDLY INITIATE D. M.A. NO. 148/KOL/12-A-PKR 2 IN RESPONSE TO OUR SUGGESTION THAT THE MATTER CAN B E RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FURNIS H COPIES OF REASONS RECORDED TO THE ASSESSEE, AND TO DEAL WITH THE OBJE CTIONS, IF ANY, OF THE ASSESSEE TO SUCH REASONS BY WAY OF A SPEAKING ORDER . BEFORE PROCEEDING TO FRAME THE ASSESSMENT DE NOVO, LEARNED DEPARTMENT AL REPRESENTATIVE ACCEPTED THE SAID SUGGESTION. LEARNED COUNSEL FOR T HE ASSESSEE ALSO AGREES TO THIS COURSE OF ACTION BUT SUGGESTS THAT S OME TIME FRAME SHOULD BE GIVEN FOR FURNISHING OF THE REASONS, OTHERWISE T HIS MATTER WILL REMAIN PENDING FOREVER. FROM PARAGRAPH-4: IN CASE THE ASSESSING OFFICER IS NOT ABLE TO FURNIS H THE REASONS OF REOPENING THE ASSESSMENT. IT IS ONLY OBVIOUS THAT T HE REASSESSMENT PROCEEDINGS ARE TO BE HELD AS UNSUSTAINABLE IN LAW AND WILL HAVE TO BE TREATED AS SUCH. COPY OF LT.A.T. ORDER IS ENCLOSED AT PAGE NOS. 1 TO 4. 3. AFTER ABOUT 4 MONTHS FROM RECEIPT OF CONSOLIDATE D ORDER OF I.T.A.T. A.O. SERVED A LETTER DATED 10-09-2012 ALONG WITH :- (A) COPY OF ORDER SHEET FOR ASST. YEAR 2003-04. (B) A.O.S LETTER DT. 07-11-2005 SERVED ON ASSESSEE IN RESPONSE TO ASSESSEE REQUEST TO FURNISH THE REASONS. THE SAID LETTER DATED 10-09-2012 WITH ENCLOSURES AR E ANNEXED TO THIS PETITION AT PAGE NOS. 5TO8. 4. IN RESPONSE TO A.O.S SAID LETTER DT. 10-09-2012 ASSESSEE REPLIED VIDE LETTER DATED 18-09-2012, A COPY WHEREOF IS AT PAGE NO. 9 INFORMING THE A.O. THAT THE SAID ORDER SHEET COPY AND SAID LETTER DT. 07-11-2005 WERE ALREADY THERE BEFORE THE HONBLE BENCH AT PAGE NOS. 4 TO 16 AND PAGE NO. 02 OF PAPER BOOK FILED ON RECORD AND HONBLE BE NCH HAS NOT CONSIDERED BOTH THESE PAPERS AS REASONS RECORDED. I N FACT THE HONBLE BENCH HAS DISCUSSED THE ORDER SHEET ENTRY IN PARAGR APH 3 OF THEIR ORDER CLEARLY HOLDING THAT THE SAME CANNOT BE CONSIDERED AS SPECIFIC REASONS RECORDED AS SPECIFICALLY UNDERLINED IN PARAGRAPH 2 ABOVE WHILE REPRODUCING THE SAID PARAGRAPH. 5. ON RECEIPT OF ASSESSEES LETTER DT. 18-09-2012 P OINTING OUT THAT THOSE TWO PAPERS ATTACHED WITH A.O.S LETTER DT. 10-09-20 12 CANNOT BE CONSIDERED AS REASONS RECORDED, A.O. HAS SERVED ON 01-10-2012 ANOTHER LETTER DT. 28-09-2012 (COPY ANNEXED AT PAGE NO. 10 TO 12) ASSERTING THAT THESE ARE THE REASONS RECORDED BY HI S PREDECESSOR. 6. IN THE COMMUNICATION OF THE A.O. DATED 10-09-201 2 AND ALSO IN THE FURTHER COMMUNICATION DT. 28-09-2012, A REFERENCE H AS BEEN MADE TO THE CONFIDENTIAL NOTE IN THE ASSESSMENT ORDER DT. 29-03-2005 FOR ASST. YEAR 2002-03. IT IS BEING SUBMITTED THAT FIRS TLY A CONFIDENTIAL NOTE MAINTAINED IN THE ASSESSMENT FOLDER CANNOT BE CONSIDERED TO BE A PART OF THE REGULAR ASSESSMENT PROCEEDINGS. IT IS A MERELY A COMMUNICATION BETWEEN DEPARTMENTAL OFFICIALS. LASTL Y, EVEN THE RECORDINGS IN THE CONFIDENTIAL NOTE AS REPRODUCED BY A.O. IN HIS LETTER DT. 28-09-2012 (INTERNAL PAGE-2) AT PAGE NO. 11 OF THIS PETITION DO NOT M.A. NO. 148/KOL/12-A-PKR 3 INCLUDE ANY CLEAR OPINION ABOUT ESCAPEMENT OF INCOM E FOR ANY OF THE THREE ASST. YEARS UNDER CONSIDERATION, NOR WERE SUC H RECORDINGS EVER USED OR CITED TO BE THE REASONS RECORDED FOR REOPEN ING THE RELEVANT ASSESSMENT PROCEEDINGS. 7. ASSESSEE, IN REPLY TO A.O.S LETTER DT. 28-09-20 12 HAS SEND A LETTER DT. 08-10-2012 (PART-13) REQUESTING THE A.O. TO INFORM THE ASSESSEE IN CLEAR TERM IF HE HAS ANY OTHER PROOF OF RECORDING S PECIFIC REASONS FOR REOPENING. NO REPLY TO THIS LETTER HAS BEEN RECEIVE D AS YET. 8. IN THE LIGHT OF ABOVE FACTS IT IS MOST HUMBLY AN D RESPECTFULLY PRAYED TO PASS FINAL ORDER ON THE JURISDICTIONAL AND OTHER IS SUES AND OBLIGE. . 2. WHILE THERE IS THUS NO MISTAKE POINTED OUT IN TH E ORDER DATED 30 TH APRIL 2012, THE ASSESSEE APPLICANT SEEKS THE SAID ORDER TO BE REV ISITED AND REVIEWED BY US. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE AS ALSO THE APPLICABLE LEGAL POSITION. 4. IT IS ONLY ELEMENTARY THAT A RECTIFICATION PETIT ION U/S. 254(2), AS IS THE PETITION BEFORE US, CAN ONLY BE FOR THE PURPOSES OF RECTIFYING M ISTAKES APPARENT ON RECORD IN THE ORDER PASSED BY THE TRIBUNAL. NO SUCH MISTAKE IS EVEN POI NTED OUT IN THE PRESENT CASE. THE REMEDY FOR THE APPELLATE ORDER NOT BEING IMPLEMENTED PROP ERLY DOES NOT LIE IN SECTION 254(2). THE PRESENT PETITION IS THUS WHOLLY MISCONCEIVED, UNCA LLED FOR AND DEVOID OF ANY MERITS WHATSOEVER. IT IS AN ABUSE OF PROCESS OF LAW. WE, THEREFORE, DEEM IT FIT AND PROPER TO DISMISS THIS PETITION WITH COSTS. . 5. IN THE RESULT, THE PETITION IS DISMISSED WITH C OSTS QUANTIFIED AT RS.1,000/- 0 1 # 2 3 ORDER PRONOUNCED IN THE OPEN COURT ON 16-11-2012 SD/ SD/ [ !, ] [ , ] [ MAHAVIR SINGH, JUDICIAL MEMBER ] [PRAMOD KUMAR, ACCOUNTANT MEMBER ] - / DATED 16/11-2012 M.A. NO. 148/KOL/12-A-PKR 4 0 , !!' 4'// COPY OF THE ORDER FORWARDED TO: 1. /APPLICANT : SHRI TAPAS SARKAR 2 '() / RESPONDENT : I.T.O WARD 3(4), PURULIA 3. !0#/ CIT, 4. !0# ()/ CIT(A), 5. =!2 !#/ DR, KOLKATA BENCHES, KOLKATA **PP/SPS ['' !/ TRUE COPY] 0#/ BY ORDER, > /ASSTT REGISTRAR.