Shri Sagar Saha, Jalpaiguri V. ACIT, Circle - 2, Jalpaiguri, Jalpaiguri

MA 26/KOL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8173 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-05-2012
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 06-03-2012
• Court: TRIBUNAL
• Department Lawyers: S K SINHA
• Assessee Lawyers: A K CHAKRABORTY; PIYAL GUPTA
• Keywords: Corroborative evidences
• Section: 143(3); 147

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , , , , . .. . . .. . , ,, , SHRI C.D.RAO, ACCOUNTANT MEMBER ! ! ! ! /AND ''# $% ''# $% ''# $% ''# $%, , , , & & & & SHRI GEORGE MATHAN, JUDICIAL MEMBER !' !' !' !' / M.A.NOS.26&27/KOL/2012 A/O C.O.NOS.23&24/KOL/2009 IN ITA NO . 2082&2083/KOL/2008 &%( )*/ ASSESSMENT YEARS : 2003-04 & 2004-05 ($, / APPELLANT ) SRI SAGAR SAHA, JALPAIGURI (PAN: AIYPS 6754 M) - % - - VERSUS - . (./$,/ RESPONDENT ) A.C.I.T., CIRCLE-2, JALPAIGURI $, 0 1 / FOR THE APPELLANT: SHRI A.K.CHAKRABORTY & SHRI PIYAL GUPTA ./$, 0 1 / FOR THE RESPONDENT: SHRI S.K.SINHA 2%3 0 /DATE OF HEARING : 04.05.2012 4) 0 /DATE OF PRONOUNCEMENT : 16.05.2012. 5 / ORDER ( (( ( . .. . . .. . ) )) ), , , , PER SHRI C.D.RAO, AM THE ABOVE MISCELLANEOUS APPLICATIONS HAVE BEEN FILE D BY ASSESSEE TO RECALL THE ORDERS OF THE TRIBUNAL DATED 23.12.2009 VIDE C.O. N OS 23 & 24/KOL/2009 IN ITA NOS.2082 & 2083/KOL/2008 PERTAINING TO A.YRS. .2003 -04 & 2004-05 RESPECTIVELY. 2. BY THESE MISCELLANEOUS APPLICATIONS ASSESSEE WAN TS TO RECALL THE ORDERS OF TRIBUNAL DATED 23.12.2009 ON TWO ISSUES. THE FIRST ONE IS RELATING TO THE ISSUE OF RE- 2 OPENING OF ASSESSMENT U/S 147 OF THE IT ACT. THE SU BMISSIONS OF ASSESSEE ON THIS ISSUE ARE AS UNDER : 4. THAT THE LD. TRIBUNAL WHILE DISCUSSING THE INI TIATION OF THE PROCEEDINGS U/S. 147. SIMPLY DISCUSSED THE SAME IN THE MANNER IN WHI CH NORMAL PROCEEDINGS U/S. 147 IS DEALT WITH IN LAW WHEN THERE IS ESCAPEMENT OF INCOM E IN ASSESSMENT U/S. 143(1) OR U/S. 143(3) FOLLOWING OTHER PREVIOUS YEARS CASES AS INIT IATED AND PASSED ORDERS BY LOWER AUTHORITIES. 5. THAT IN THE PRESENT CASE RELATING TO ASSESSMENT YEAR 2003-04, THE WHOLE ARGUMENT WHICH WAS ADVANCED ON BEHALF OF THE CROSS OBJECTOR WAS ON THE BASIS OF THE FACT THAT THE ASSESSMENT ORDER IN WHICH EXPENSES CL AIMED BY THE ASSESSEE WERE DISALLOWED AGAINST THE INCENTIVE BONUS AND THE ADDI TIONAL CONVEYANCE ALLOWANCES WAS APPEALED AGAINST AND IN APPEAL, THE DISALLOWANCES O F THE CLAIM WERE REDUCED AND ACCORDINGLY, THE ORIGINAL ASSESSMENT ORDER BEING ME RGED WITH THE APPELLATE ORDER, THE LD. ASSESSING OFFICER LOST THE JURISDICTION TO RE-O PEN THE SAME BY INITIATING PROCEEDINGS U/S. 147 OF THE I. T. ACT, 1961. IN SUPPORT OF THE SAID SUBMISSION, THE CROSS OBJECT OR FILED THE XEROX COPY OF MEMO OF APPEAL TO CIT (A) IN FORM 35, STATEMENT O F FACT AND GROUNDS OF APPEAL WITH SUBMISSION AND THE ORIGINAL ASSESSMENT ORDER D ATED 25/07/2005 FOR ASSESSMENT YEAR 2003-04 VIDE PAPER BOOK PAGE 55 TO 59A, 59B, 5 9C AND 59D. THE APPELLATE ORDER DATED 20/01/2006 THEREUNDER IN APPEAL CASE NO. 386/ CIT(A)/JAL. WAS ALSO FILED BEFORE THE LD. BENCH. 6. IT IS THEREFORE APPARENT THAT LD. BENCH WHILE P ASSING THE SAID COMBINED ORDER DATED 23/12/2009 FOR THE ASSESSMENT YEAR 2003-04 TO TALLY OMITTED TO CONSIDER THE ARGUMENTS BASED ON GROUND NO. 7 OF THE CROSS OBJECT ION AND THE SUPPORTING EVIDENCES FILED. A NUMBER OF CASES WERE ALSO CITED IN SUPPORT OF THE GROUND DURING THE ARGUMENT OF THE CASE FOR THE SAID ASSESSMENT YEAR,REFERENCES OF WHICH ARE STATED BELOW BUT THE SAID CASES DO NOT APPEAR TO HAVE BEEN DISCUSSED AND CONS IDERED AND THE ORDER NEEDS BE AMENDED ACCORDINGLY. A) 264-ITR-566(S.C.), (B) 307-ITR-1 15(GUJ), (C) 30 8-ITR-190 (BORN), (D) 308-ITR- 195(BOM) AND 169-ITR-533(S.C.). THEREFORE HE REQUESTED TO RECALL THIS ISSUE FOR FRE SH ADJUDICATION. 4. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHAL F OF THE REVENUE BY REFERRING TO PARA NO.14 AT PAGE NO.7 CONTENDED THAT THE TRIB UNAL HAS DECIDED THE ISSUE. THERE IS NO NEED TO RE-ADJUDICATE THE ISSUE SINCE THE TRIBUN AL IS NOT HAVING REVIEW POWERS. THEREFORE HE REQUESTED TO REJECT THE PLEA OF THE AS SESSEE. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE TRIBUNALS ORDER AT PARA NOS. 11 TO 14 WHEREIN THE TRIBUNAL HA S DISCUSSED GROUND NO.2 RAISED BY THE ASSESSEE IN CROSS OBJECTION AND THEN GIVEN THE FINDINGS AT PARA NO.14 ON WHICH THE LD. DR HAS RELIED. SINCE THE LD. COUNSEL FOR ASSESS EE HAS NOT POINTED OUT ANY MISTAKE 3 APPARENT FROM RECORD AND HE FURTHER REQUESTED TO RE VIEW THE ORDER, IN OUR CONSIDERED OPINION, SINCE THE TRIBUNAL IS NOT HAVING REVIEWING POWER U/S 254(2) OF THE IT ACT UNABLE TO ACCEPT THE CONTENTION OF THE ASSESSEE ON THIS ISSUE. 6. AS REGARDING THE OTHER ISSUE, THE LD.COUNSEL FOR ASSESSEE SUBMITTED THAT REGARDING DISPOSAL OF THE CLAIM ABOUT CONVEYANCE/AD DITIONAL CONVEYANCE ALLOWANCE. HE SUBMITTED THAT THE TRIBUNAL HAS SET ASIDE THIS M ATTER TO THE FILE OF AO FOR HIS DISCRETION AND ALL THE MATERIAL AND PAPERS AND EVID ENCES ARE AVAILABLE IN THE RECORDS INSTEAD OF SETTING ASIDE THE MATTER TO THE FILE OF AO THE TRIBUNAL SHOULD HAVE TAKEN THE DECISION. THEREFORE HE REQUESTED TO RECALL THE ORDE R ON THIS ISSUE TO DECIDE THE SAME AFRESH. 7. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHAL F OF THE REVENUE CONTENDED THAT ONCE THE TRIBUNAL HAS TAKEN THE DECISION OF SE TTING ASIDE THE ISSUE THEY CANNOT RECALL THE SAME FOR FRESH ADJUDICATION SINCE THEY A RE NOT HAVING THE REVIEWING POWER. HE REQUESTED TO REJECT THE CLAIM OF THE ASSESSEE. 8. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF THE TRIBUNALS ORDER SINCE THE LD. COUNSEL FOR ASSESSEE HAS NOT PO INTED OUT ANY MISTAKE APPARENT FROM RECORD AND HE FURTHER REQUESTED TO REVIEW THE ORDER , IN OUR CONSIDERED OPINION, SINCE THE TRIBUNAL IS NOT HAVING REVIEWING POWER U/S 254( 2) OF THE IT ACT UNABLE TO ACCEPT THE CONTENTION OF THE ASSESSEE ON THIS ISSUE. 9. IN THE RESULT THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 16.05.2012. SD/- SD/- ''# $% ''# $% ''# $% ''# $%, , , , & & & & GEORGE MATHAN, JUDICIAL MEMBER . .. . . .. . , , , , , C.D.RAO, ACCOUNTANT MEMBER. ( (( ( ) )) ) DATE: 16.05.2012. R.G.(.P.S.) 4 5 0 .&&6 76)8- COPY OF THE ORDER FORWARDED TO: 1. SHRI SAGAR SAHA, D.O.(L.I.C.), KADAMTALA P.O., & DI ST.JALPAIGURI. 2 A.C.I.T., CIRCLE-2, JALPAIGURI 3. THE CIT-JALPAIGURI 4. THE CIT(A)-JALPAIGURI 5. DR, KOLKATA BENCHES, KOLKATA /6 .&/ TRUE COPY, 5%2/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES