ITO, Ward - 5(3), Kolkata v. M/s. B.H.P. India Pvt. Ltd., Kolkata

ITA 1431/KOL/2008 | 2003-2004
Pronouncement Date: 31-01-2011

Appeal Details

RSA Number 143123514 RSA 2008
Assessee PAN AABCB3785B
Bench Kolkata
Appeal Number ITA 1431/KOL/2008
Duration Of Justice 2 year(s) 6 month(s) 6 day(s)
Appellant ITO, Ward - 5(3), Kolkata
Respondent M/s. B.H.P. India Pvt. Ltd., Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 31-01-2011
Appeal Filed By Department
Bench Allotted A
Tribunal Order Date 31-01-2011
Date Of Final Hearing 27-01-2011
Next Hearing Date 27-01-2011
Assessment Year 2003-2004
Appeal Filed On 25-07-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH : KOLKATA () BEFORE . . . . . . . . !' !' !' !' /AND . .. . . .. .! !! ! # ) [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI C . D. RAO AM] '$ '$ '$ '$ / I.T.A NO. 1431/KOL/2008 %&' !() %&' !() %&' !() %&' !()/ // / ASSESSMENT YEAR : 2003-04 INCOME-TAX OFFICER WD-5(3) KOLKATA VS. M/S. B .H.P. INDIA PVT. LTD. (PA NO. AABCB 3785 B) ( + /APPELLANT ) (-+ / RESPONDENT ) & C.O. NO. 101/KOL/2008 IN '$ '$ '$ '$ / I.T.A NO. 1431 /KOL/2008 %&' !() %&' !() %&' !() %&' !()/ // / ASSESSMENT YEAR : 2003-04 M/S. B.H.P. INDIA PVT. LTD. VS. INCOME-TAX OFFI CER WD-5(3) KOLKATA. (CROSS OBJECTOR) (-+ / RESPONDENT ) FOR THE REVENUE/APPELLANT : SRI B. R. PURAKAYAST HA FOR THE ASSESSEE/CROSS OBJECTOR : SRI K. L. BOTH RA . / ORDER PER D. K. TYAGI JM ( . . . . . . . . ) THE APPEAL AND THE CROSS OBJECTION FILED BY THE REV ENUE AND THE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) KOLKATA DATED 10.06.2008 FOR ASSESSMENT YEAR 2003-04. BOTH THE APPEAL AND THE C ROSS OBJECTION ARE DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 2. SINCE JURISDICTIONAL ASPECT IS INVOLVED WE HAVE DECIDED TO DISPOSE OF THE ASSESSEES CROSS OBJECTION FIRST. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS CROSS OBJECTION : 1. THAT THE LD. CIT(A) ERRED IN NOT DISCUSSING THE GROUND ABOUT REOPENING THE ASSESSMENT U/S. 147 ON THE ALLEGED GROUND THAT THE SAME IS NOT PRESSED IN ORAL 2 ARGUMENTS WHEREAS THE SAME HAS BEEN PRESSED IN WRIT TEN ARGUMENTS AND ALSO IN WRITTEN GROUNDS. 2. THAT THE REOPENING OF ASSESSMENT U/S. 147 AND NO TICE U/S. 148 IS BAD IN LAW AND VOID AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS NO REASONABLE OPPORTUNITY HAS BEEN GIVEN TO THE APPELLANT TO REBUT THE DEPARTMENTS AUDIT NO TE ON THE BASIS OF WHICH AN ADDITION OF RS.77 48 872/- HAS BEEN MADE IN THE ASSESSMENT O RDER. 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L OF THE ASSESSEE SUBMITTED THAT ALL THE FACTS AND FIGURES WERE FULLY DISCLOSED IN T HE ORIGINAL INCOME TAX RETURN THEREFORE NOTICE ISSUED U/S. 148 AND REOPENING OF THE CASE U/ S. 147 WAS BAD IN LAW AND HENCE VOID AB INITIO. FOR MAKING THIS SUBMISSION HE PLACED RE LIANCE ON THE DECISION OF CIT VS. ATUL JAIN REPORTED IN 299 ITR 383 AND CIT VS. ANUPA M KAPUR REPORTED IN 299 ITR 179 WHEREIN IT WAS HELD THAT THE ASSESSING OFFICER SHOU LD VERIFY CORRECTNESS OF INFORMATION RECEIVED BY HIM AND NOT MERELY ACCEPT THE VAGUE IN FORMATION IN A MECHANICAL MANNER. AN AUDIT OBJECTION BY ITSELF CANNOT JUSTIFY NOTICE OF REASSESSMENT WHEN THERE IS NO APPLICATION OF MIND ON THE PART OF ASSESSING OFFICE R. FOR THIS SUBMISSION HE PLACED RELIANCE ON THE DECISION OF TRANSWORLD INTERNATIONA L VS. JCIT REPORTED IN 273 ITR 142. HE FURTHER SUBMITTED THAT THE SUBMISSIONS MADE BY T HE ASSESSEES COUNSEL DATED 19.11.2007 WERE NOT VERIFIED AND THE ORDER WAS PASS ED WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND AS SUCH THE ORDER PASSED IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. HE THEREFORE PRAYE D THAT THE CASE MAY KINDLY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDIC ATION IN THE LIGHT OF THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE HIM. THE LD. DR DID NO T RAISE ANY SERIOUS OBJECTION TO THIS PRAYER OF THE LD. COUNSEL FOR THE ASSESSEE. IN VIEW OF THE ABOVE AND AFTER SETTING ASIDE THE ORDERS OF THE LOWER AUTHORITIES THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER TAKING INTO CO NSIDERATION THE SUBMISSIONS AND THE CASE LAWS RELIED ON BY THE ASSESSEE AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE CROSS OBJECTION FILED BY THE A SSESSEE IS THEREFORE ALLOWED FOR STATISTICAL PURPOSES. 4. SINCE WE HAVE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORED THE ISSUE IN RESPECT OF REOPENING PROCEEDINGS U/S. 147 OF THE I. T. ACT RAISED BY THE ASSESSEE IN ITS 3 CROSS OBJECTION THE APPEAL FILED BY THE REVENUE IS ALSO RESTORED TO THE ASSESSING OFFICER FOR CONSIDERING AFRESH. 5. IN THE RESULT BOTH THE APPEAL AND THE CROSS OBJ ECTION ARE ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.1.20 11 SD/- SD/- . . ! # . . (C. D. RAO) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER ( # # # #) )) ) DATED : 31 ST JANUARY 2011 !/0 %&12 %3! JD.(SR.P.S.) . 4 -%%5 65(7- COPY OF THE ORDER FORWARDED TO: 1 . + / APPELLANT ITO WARD-5(3) KOLKATA 2 -+ / RESPONDENT M/S. B.H.P. INDIA PVT. LTD. 2 CLIVE GHAT STREET KOLKATA-700 001. 3 . %.& / THE CIT KOLKATA. 4. %.& ( )/ THE CIT(A) KOLKATA. 5 . !=% -%& / DR KOLKATA BENCHES KOLKATA 5 -%/ TRUE COPY .&>/ BY ORDER ? '2 /DEPUTY REGISTRAR .