ITO, Ward - 38(1), Kolkata, Kolkata v. Shri Iswar Chand Tantia, Kolkata

ITA 1348/KOL/2010 | 2002-2003
Pronouncement Date: 24-09-2010

Appeal Details

RSA Number 134823514 RSA 2010
Assessee PAN ABMPT7541E
Bench Kolkata
Appeal Number ITA 1348/KOL/2010
Duration Of Justice 2 month(s) 24 day(s)
Appellant ITO, Ward - 38(1), Kolkata, Kolkata
Respondent Shri Iswar Chand Tantia, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 24-09-2010
Appeal Filed By Department
Bench Allotted B
Tribunal Order Date 24-09-2010
Assessment Year 2002-2003
Appeal Filed On 30-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA () BEFORE . . . . . . . . ! '# '# '# '# /AND . .. . . .. . $ ! ) [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI C . D. RAO AM] #% #% #% #% / I.T.A NO. 1348 /KOL/2010 &'( )* &'( )* &'( )* &'( )*/ // / ASSESSMENT YEAR : 2002-03 INCOME-TAX OFFICER WD-38(1) KOLKATA. -VS- SRI ISW AR CHAND TANTIA (PA NO. ABMPT 7541 E) ( - / APPELLANT ) (. -/ RESPONDENT ) FOR THE APPELLANT : SRI P. C. NAYAK FOR THE RESPONDENT N O N E / / ORDER PER D. K. TYAGI JM ( . . . . . . . . ! ) THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAIN ST THE ORDER OF THE LD. CIT(A) KOLKATA DATED 09.03.2010 FOR ASSESSMENT YEA R 2002-03 ON THE SOLE GROUND OF QUASHING THE REASSESSMENT PROCEEDING U/S. 147. 2. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE/RESPO NDENT AT THE TIME OF HEARING BEFORE US. WE DISPOSE OF THE APPEAL OF THE REVENUE AFTER HEARING THE LD. DR PRESENT FOR THE REVENUE. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT FOR AY 2002-03 INCOME WAS ORIGINALLY ASSESSED AT RS.7 51 450/- BY WAY OF ORDER U/S. 143( 3) OF THE ACT DATED 22.03.2005. THE ASSESSMENT ORDER WAS DISPUTED IN APPEAL BEFORE THE ITAT AND CONSEQUENT TO THE ORDER OF THE ITAT THE INCOME WAS ASSESSED AT RS.2 17 700 /-. PROCEEDINGS U/S. 147 OF THE ACT WERE INITIATED AFTER DUE APPROVAL FROM THE CIT-XIII KOLKATA BY WAY OF ISSUE OF NOTICE U/S. 148 OF THE ACT DATED 30.3.09 WHICH WAS SERVED ON THE ASSESSEE ON THE SAME DATE. IN RESPONSE TO THE ABOVE THE ASSESSEE VIDE HIS LETTER DATED 2.4.09 REQUESTED THAT THE ORIGINAL RETURN FILED BY HIM SHOULD BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE U/S. 148 OF THE ACT. THE ASSESSING OFFICER ACCORDINGLY ISSUED NOTICES TO THE ASSESSEE REQUIRING THE ASSESSEE TO EXPLAIN THE DISCREPANCY F OUND IN THE PURCHASES SHOWN BY THE ASSESSEE FROM M/S. ORISSA FOREST DEVELOPMENT CORPOR ATION (SAMBALPUR DIVISION). AS 2 PER THE ASSESSEE THE TOTAL PURCHASES WERE SHOWN AS RS.20 23 359/- BY WAY OF 9 BILLS WHILE AS PER THE CONFIRMATION RECEIVED FROM M/S. OR ISSA FOREST DEVELOPMENT CORPORATION (SAMBALPUR DIVISION) IN RESPONSE TO NO TICE U/S. 133(6) OF THE ACT THESE WERE ONLY RS.5 64 470/- VIDE 3 BILLS. THE AO ISSUE D A SHOW CAUSE NOTICE TO THE ASSESSEE ASKING HIM TO EXPLAIN AS TO WHY THE PURCHASES OF R S.14 48 521/- SHOULD NOT BE DISALLOWED AS BOGUS PURCHASES. IN RESPONSE TO THE ABOVE THE ASSESSEE MADE A WRITTEN SUBMISSION WHICH IS AVAILABLE AT PAGE 3 OF THE LD. CIT(A)S ORDER. THE ASSESSEE THEREFORE CONTENDED THAT THERE WAS NO CASE FOR TRE ATING THE PURCHASE AS BOGUS AND REASSESSING THE INCOME BY DISALLOWING THE SAID PURC HASES. THE ASSESSING OFFICER HOWEVER NOTED THE ABOVE SUBMISSIONS OF THE ASSESSE E AND ADMITTED THAT THE BILLS OF PURCHASES AS MENTIONED BY THE ASSESSEE WERE ON REC ORD BUT AS THESE PURCHASES WERE NOT CONFIRMED BY OFDC (SAMBALPUR DIVISION) VIDE THEIR LETTER NO. 2631 DATED 15.7.03 AND AS NO REPLY WAS RECEIVED FROM OFDC (SAMBALPUR DIVIS ION) IN RESPONSE TO FRESH NOTICE U/S. 133(6) DATED 11.8.09 REASSESSED THE INCOME AT RS.16 66 221/- BY WAY OF ORDER U/S. 143(3) READ WITH SECTION 147 OF THE ACT DATED 31.12 .09. IN APPEAL THE LD. CIT(A) HAS OBSERVED AS UNDER : THUS FROM THE REASONS RECORDED IT IS SEEN THAT THE REASSESSMENT PROCEEDINGS WERE INITIATED ON ACCOUNT OF DIFFERENCE IN PURCHASE FRO M OFDC (SAMBALPUR DIVISION). IT IS AN ADMITTED FACT DURING THE ORIGINAL ASSESSMENT PRO CEEDINGS THE PURCHASES WERE SCRUTINIZED AND THE LETTER OF OFDC (SAMBALPUR DIVIS ION) DATED 15.7.03 WAS ON RECORD AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS. TH E RECORD ALSO SHOWS THAT THE APPELLANT WAS ASKED FOR A CLARIFICATION IN RESPONSE TO WHICH THE APPELLANT SUBMITTED THE BILLS OF PURCHASE OF THE SAID DIVISION BY HIS LETTE R DATED 15. 12.04. IT IS ALSO ADMITTED THE DETAILS OF PAYMENTS IN RESPECT OF THE ENTIRE PURCHA SE FROM SAID DIVISION WERE ALSO PLACED ON RECORD AT THE TIME OF ORIGINAL ASSESSMENT. THE A PPELLANT HAD THUS DISCLOSED ALL MATERIAL EVIDENCES IN SUPPORT OF HIS CLAIM OF PURCH ASES OF RS.20 23 359/- FROM THE SAID DIVISION. THE LETTER ON THE BASIS OF WHICH DISCREPA NCY HAS BEEN WORKED OUT WAS ALSO ON RECORD AND EXAMINED BY THE AO DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. NO ADDITIONAL EVIDENCE HAS BEEN BROUGHT ON RECORD T O SHOW THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY REASON OF FAILURE ON THE PART OF THE APPELLANT TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR HIS ASSESSMENT FOR THE YEAR. FOR THE A.Y. 02-03 THE REASSESSMENT PROCEEDINGS WERE IN ITIATED BY ISSUE OF NOTICE DATED 30.3.09. THE ORIGINAL ASSESSMENT WAS MADE U/S 143(3 ). IN VIEW OF THE ABOVE THE CASE OF THE APPELLANT WAS COVERED BY THE PROVISO TO SECTION 147 NO PROCEEDINGS UNDER SECTION 147 COULD BE INITIATED UNLESS THERE WAS A FAILURE O N THE PART OF THE APPELLANT AS ENVISAGED IN THE SAID PROVISO. THE RECORD AND THE R EASONS RECORDED FOR REOPENING THE CASE DO NOT SHOW THAT THERE WAS ANY SUCH FAILURE ON THE PART OF THE APPELLANT AND HENCE IN VIEW OF THE EXPRESS PROVISIONS OF THE SECTION AN D THE ESTABLISHED LEGAL POSITION AS EVIDENT FROM THE VARIOUS JUDICIAL PRONOUNCEMENTS RE FERRED TO ABOVE IT IS HELD THAT THE REASSESSMENT PROCEEDINGS WERE NOT VALID. THE NOTICE ISSUED U/S 148 WAS THEREFORE 3 WITHOUT JURISDICTION AND HENCE VOID. THE REASSESSME NT U/S 147 IS THEREFORE QUASHED. THIS GROUND OF THE APPELLANT IS THEREFORE ALLOWED. AGGRIEVED BY THE SAID ORDER NOW THE REVENUE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US THE LD. DR SOU GHT TIME TO VERIFY FROM THE ASSESSMENT RECORD WHETHER THE FINDING OF THE LD. CI T(A) THAT AT THE TIME OF ORIGINAL PROCEEDINGS THE ASSESSEE HAD DISCLOSED ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THE YEAR OR NOT. THEREFORE ASSESSMENT RECORDS WERE CALLED FOR AND THE FINDING OF THE LD. CIT(A) IN THIS RESPECT WAS FOUND CORRECT. IN V IEW OF THIS WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND THE SA ME IS HEREBY UPHELD. THE APPEAL OF THE REVENUE STANDS DISMISSED. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 24.9.10 SD/- SD/- . . $ ! . . ! (C. D. RAO) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER ( $ $ $ $) )) ) DATED :24TH SEPTEMBER 2010 01 &'23 &4 JD.(SR.P.S.) / 5 .&& 6)7- COPY OF THE ORDER FORWARDED TO: 1 . - / APPELLANT ITO WARD-38(1) KOLKATA. 2 . - / RESPONDENT SRI ISWAR CHAND TANTIA 230 CHITTARANJAN AVENUE KOLKATA-700 006. 3 . &/' / THE CIT 4 . &/' ( )/ THE CIT(A) KOLKATA 5 . >& .&' / DR KOLKATA BENCHES KOLKATA .&/ TRUE COPY /'?/ BY ORDER @ #3 / DEPUTY REGISTRAR .