Kartick Chandra Ghosh, Howrah v. ACIT, CIR-48, KOLKATA, Kolkata

MA 11/KOL/2014 | 2007-2008
Pronouncement Date: 10-11-2014

Appeal Details

RSA Number 1123524 RSA 2014
Assessee PAN ADRPG8329G
Bench Kolkata
Appeal Number MA 11/KOL/2014
Duration Of Justice 7 month(s) 17 day(s)
Appellant Kartick Chandra Ghosh, Howrah
Respondent ACIT, CIR-48, KOLKATA, Kolkata
Appeal Type Miscellaneous Application
Pronouncement Date 10-11-2014
Appeal Filed By Assessee
Bench Allotted Not Allotted
Tribunal Order Date 10-11-2014
Assessment Year 2007-2008
Appeal Filed On 24-03-2014
Judgment Text
A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE /AND ! ) [BEFORE SHRI MAHAVIR SINGH JM & SHRI SHAMIM YAHYA AM] M.A. NO.11/KOL/2014 ' / I.T.A NO.1767/KOL/2012 #$ %&/ ASSESSMENT YEAR: 2007-08 KARTICK CHANDRA GHOSH VS. ASSISTANT COMMI SSIONER OF INCOME-TAX (PAN: ADRPG8329G) CIRCLE-48 KOLKATA ( /APPLICANT ) (()*+/ RESPONDENT ) DATE OF HEARING: 07.11.2014 DATE OF PRONOUNCEMENT: 10.11.2014 FOR THE APPLICANT: SHRI R. DHAR ADVOCATE FOR THE RESPONDENT: SHRI ANIL KUMAR PANDE JCIT SR. DR / ORDER PER SHRI MAHAVIR SINGH JM : BY WAY OF THIS MISC. PETITION THE ASSESSEE HAS POI NTED OUT THAT THE ISSUE OF SET OFF OF LOSS IS NOT ADJUDICATED U/S. 70(1) OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT). ACCORDING TO HIM EVEN THE INITIATION OF PROCEEDING S U/S. 147 OF THE ACT HAS NOT BEEN CONSIDERED. FOR THIS HE RAISED FOLLOWING ISSUES: 1) THAT YOUR HONOURS HAVE OVERLOOKED GROUNDS NO. 2 3 & 4 OF THE GROUNDS OF APPEAL. 2) THAT THE PETITIONER HAD CHALTENGED THE PROCEEDIN GS U/S 147 OF THE I.T. ACT 1961 WHICH HAS NOT BEEN CONSIDERED. 3) THAT THE PETITIONER SUBMITTED THAT HE HAD ALREAD Y BEEN OVER ASSESSED U/S 143(1) OF THE INCOME TX ACT 1961 THAT ALSO HAS NOT BEEN CONSIDER ED. 4) THAT THE PETITIONER SUBRNITTED AT PAGE 2 OF THE PAPER BOOK THAT HIS TOTAL INCOME. IF PROPERLY COMPUTED AS PER PROVISIONS OF THE 1.T. ACT 1961 WOULD BE NIL THIS HAS BEEN OVERLOOKED. 5) THAT THE PETTIONER SUBMITTED THAT HIS SHARE OF BUSINESS LOSS IN THE FIRM M/S. SEVA COLD STORAGE SHOULD HAVE BEEN SET OFF AGAINST HIS O THER BUSINESS INCORNE OTHERWISE IT WILL VIOLATE SEC 70(1) OF THE I.T. ACT 1961. 2 MA NO.11/K/2014 KARTICK CH. GHOSH AY 2007-08 6) THAT FOR NATURAL JUSTICE AIL THE GROUNDS OVERLOO KED NEEDS TO BE RECONSIDERED AND THE TOTAL INCOME OF THE ASSESSEE IS LIABLE TO BE PROPER LY COMPUTED IN ACCORDANCEWITH THE PROVISIONS OF THE I.T. ACT 1961 OTHERWISE THE APPEA L ORDER WILL REMAIN INCOMPLETE. 2. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. ADMITTEDLY THE ISSUE OF INITIATION OF PROCEEDINGS U/S. 147 OF THE ACT READ WITH SECTION 148 OF THE ACT IS NOT ADJUDICATED. NOW LD. COUNSEL FOR TH E ASSESSEE ARGUED THAT THIS IS REOPENING AND ORIGINALLY RETURN WAS PROCESSED U/S. 143(1) OF THE ACT AND IT IS WITHIN FOUR YEARS. THIS RETURN WAS PROCESSED U/S. 143(1) OF THE ACT ON 27.05.2008 AND SUBSEQUENTLY NOTICE U/S. 148 OF THE ACT WAS ISSUED FOR THE REASON THAT AN AMOUNT OF RS.9 16 271/- BEING PROPORTIONATE 60% SHARE OF UNABSORBED DEPRECIATION OF THE PARTNERSHIP FIRM M/S . SEVA COLD STORAGE HAD BEEN SET OFF FROM THE ASSESSEES BUSINESS INCOME. ACCORDINGLY NOTIC E U/S. 148 OF THE ACT WAS ISSUED. THE CIT(A) ADJUDICATED THE ISSUE VIDE PARA 1.2 AS UNDER : 1.2. THE SUBMISSIONS OF THE APPELLANT HAVE BEEN CO NSIDERED AND IT IS SEEN FROM THE ASSESSMENT ORDER THAT ORIGINAL RETURN DECLARING INCOME OF RS.7 65 180/- WAS FILED ON 18.12.2007 AND THE RETURN WAS PROCESSED U/ S. 143(1) ON 27.05.2008. IT WAS SUBSEQUENTLY FOUND BY THE A.O. THAT AN AMOUNT O F RS.9 16 271/- BEING PROPORTIONATE 60% SHARE OF UNABSORBED DEPRECIATION OF THE PARTNERSHIP FIRM M/S. SEVA COLD STORAGE HAD BEEN SET OFF FROM THE APPELLA NTS BUSINESS INCOME. THE A.O. OBSERVED THAT THIS CLAIM WAS NOT AS PER THE PROVISI ONS OF THE ACT AND NOTICE U/S.148 WAS ISSUED IN RESPONSE TO WHICH THE APPELLANT FILED A L ETTER ON 16.11.2009 REQUESTING TO TREAT THE RETURN FILED ON 18.12.2009 AS A RETURN IN RESPO NSE TO NOTICE U/S.148. THEREFORE FROM THE ABOVE FACTS IT IS CLEAR THAT PRIOR TO REOPENING THE CASE U/S.147 THE RETURN HAD BEEN PROCESSED U/S.143(1) AND NO ORDER U/S.143(3) HAD BE EN MADE SECONDLY THE NOTICE HAD BEEN ISSUED WITHIN 4 YEARS OF THE END OF THE ASSESS MENT YEAR OF THE ORIGINAL RETURN. THEREFORE THE APPELTANTS CASE IS COVERED UNDER-PR OVISIONS OF SECTION 149(1)(A) AND THE PROVISO TO SECTION 147 WOULD NOT BE PPLICABLE IN TH E CASE OF THE APPELLANT. IT IS ALSO CLEAR FROM THE ASSESSMENT ORDER THAT THE A.O. HAD REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT WITHIN MEANING OF EXPLANATION TO SECTION 147. IT CANNOT THEREFORE BE CONSIDERED A CHANGE OF OPINION AS NO ORDER U/S.143( 3) HAD BEEN MADE IN THE CASE OF THE APPELLANT BEFORE THE REASSESSMENT PROCEEDINGS. IT I S ACCORDINGLY HELD THAT THE APPELLANTS GROUNDS CHALLENGING THE PROCEEDINGS U/S.147 ARE NOT JUSTIFIED AND THESE GROUNDS OF APPEAL ARE REJECTED. WHEN A QUERY WAS RAISED HOW THERE IS A CHANGE OF O PINION WHEN NO OPINION WAS FORMED. LD. COUNSEL COULD NOT REPLY. IN TERM OF THE ABOVE WE FIND NO REASON TO INTERFERE IN THE ORDERS OF THE LOWER AUTHORITIES AND ACCORDINGLY WE UPHOLD THE PR OCEEDINGS INITIATED U/S. 147 OF THE ACT. 3. COMING TO THE ISSUE OF LOSS TO BE SET OFF U/S. 7 0(1) OF THE ACT. WE HAVE ULTIMATELY DEALT WITH THE ISSUE IN PARA 4 TO 6 OF THE TRIBUNALSS OR DER. SPECIFIC FINDING IN REGARD TO UNABSORBED DEPRECIATION AND LOSS IS GIVEN IN PARA 6 IS THAT THE UNABSORBED DEPRECIATION AS WELL AS LOSS IS 3 MA NO.11/K/2014 KARTICK CH. GHOSH AY 2007-08 CARRIED FORWARD TO BE SET OFF ONLY AGAINST THE FIRM S INCOME AND NOT THAT OF PARTNERS. AS WE HAVE ALREADY ADJUDICATED THE ISSUE AND NOW LD. COUN SEL FOR THE ASSESSEE COULD NOT POINT OUT ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TR IBUNAL WE REJECT THE MISC. APPLICATION FILED BY ASSESSEE. 4. IN THE RESULT MISC. APPLICATION OF ASSESSEE IS DISMISSED. 5. ORDER PRONOUNCED IN OPEN COURT ON 10.11.2014 SD/- SD/- ! (SHAMIM YAHYA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10TH NOVEMBER 2014 - #./ 0 JD.(SR.P.S.) 1 (2 3 2%4- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT SHRI KARTICK CHANDRA GHOSH 16 PADMA G HOSH GARDEN LANE LILUAH HOWRAH-711204 2 ()*+ / RESPONDENT ACIT CIRCLE-48 KOLKATA. 3 . # ( )/ THE CIT(A) KOLKATA 4. 5. # / CIT KOLKATA 2:; (# / DR KOLKATA BENCHES KOLKATA )2 (/ TRUE COPY #