D.C.I.T., Cental Circle - 3(3) , Kolkata v. Shri Biswanath Garodia, Kolkata

MA 151/KOL/2019 | 2009-2010
Pronouncement Date: 06-11-2019 | Result: Dismissed

Appeal Details

RSA Number 15123524 RSA 2019
Assessee PAN ADGPG4384E
Bench Kolkata
Appeal Number MA 151/KOL/2019
Duration Of Justice 3 month(s) 28 day(s)
Appellant D.C.I.T., Cental Circle - 3(3) , Kolkata
Respondent Shri Biswanath Garodia, Kolkata
Appeal Type Miscellaneous Application
Pronouncement Date 06-11-2019
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 06-11-2019
Assessment Year 2009-2010
Appeal Filed On 09-07-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S GODARA JUDICIAL MEMBER (MISC. APPLICATION) M.ANO.150-153/KOL/2019 (ARISING OUT ITA NO.2243- 2246/KOL/2018 & CO NO.128 130-132/KOL2018 ) / ASSESSMENT YEARS:2008-09 TO 2011-12 DCIT CENTRAL CIRCLE- 3(3) AAYKAR BHAWAN POORVA E.M.BYPASS 110 SHANTIPALY 4 TH FLOOR KOLKATA-107 / V/S . SRI BISWANATH GARODIA 9 DOVER PARK KOLKATA-700 019 [ PAN NO. ADGPG 4384 E ] /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI D.S. DAMLE ADVOCATE /BY REVENUE SHRI RAJA SENGUPTA JCIT-SR-DR $ /DATE OF HEARING 30-08-2019 $ /DATE OF PRONOUNCEMENT 06-11-2019 /O R D E R THESE FOUR REVENUES MISCELLANEOUS APPLICATIONS FI LED U/S 254(2) OF THE INCOME TAX ACT 1961; IN SHORT THE ACT SEEK TO RE -CALL / RECTIFY THE TRIBUNALS COMMON ORDER DATED 20.03.2019 HOLDING ALL THE FOUR ASSESSMENT(S) / RE-ASSESSMENT(S) AS BARRED BY LIMITATION VIDE FOLLOWING DETAILED DIS CUSSION:- 6. I REITERATE THAT THE SOLE ISSUE BEFORE ME AS OF NOW IS AS TO WHETHER THE IMPUGNED ASSESSMENTS FRAMED IN ALL FOUR ASSESSMENT YEARS ARE TIME BARRED OR NOT U/S 153 OF THE ACT. MR. SINGH HAS TAKEN PAINS TO FILE THE FOLLOWIN G WRITTEN SUBMISSIONS SUPPORTING THE IMPUGNED RE-ASSESSMENTS ON THE INSTANT LEGAL IS SUE AS FOLLOWS:- FOR THE A.YS. 2008-09 TO 2011-12 REGULAR ASSESSMEN TS U/S 153A/143(3) WERE COMPLETED ON 18.02.2015. NOTICES U/S 148 FOR ALL 4 YEARS WERE ISSUED ON 18.02.2016 AND SERVED ON 19.02.2016. AS PER THE PROVISIONS OF SEC. 153(2) OF THE ACT AS APPLICABLE W.E.F. 01.06.2016 NO ORDER OF ASSESSMEN T REASSESSMENT OR RE-COMPUTATION MA NO.150-153/KOL/2019 DCIT CC3(3) KOL. VS. BISWANATH GARODIA PAGE 2 COULD BE MADE U/S 147 AFTER THE EXPIRY' OF 9 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE U/S 148 WAS SERVED. ACCORDINGLY IN THE ORDINARY COURSE THE ASSESSMENTS U/S 147 FOR THE 4 YEARS WERE REQUIRED T O BE COMPLETED ON OR BEFORE 31.12.2016 BEING 9 MONTHS FROM THE CLOSE OF THE FI NANCIAL YEAR IN WHICH NOTICES U/S 148 WERE SERVED ON THE ASSESSEE. IN CONNECTION WITH REASSESSMENTS OF THESE 4 YEARS REFERENCE WAS MADE BY THE AO TO THE FT & TR DIVISION OF THE BOARD WHO IN TURN HAD MADE REFERENCE TO SINGAPORE TAX AUTHORITY UNDER ARTICLE 28 OF THE AGREEMENT FOR AVO IDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION BETWEEN GOVT. OF INDIA AND THE GOVT. OF THE REPUBLIC OF SINGAPORE SEEKING INFORMATION IN RELATION TO ASSES SEE'S TRANSACTIONS WITH SINGAPORE TAX RESIDENTS NAMELY MSM ENTERPRISES (PTE) LTD D ONALD MCARTHY TRADING (PTE) LTD & CITIBANK N.A. SINGAPORE LTD. THE REFERENCE WA S MADE TO THE SINGAPORE TAX AUTHORITY BY THE FT& TR DIVISION OF CBDT ON 25.11.2 016. ONCE THE REFERENCE TO SINGAPORE TAX AUTHORITY WAS MADE IN PURSUANCE OF AN AGREEMENT ENTERED INTO WITH SAID GOVERNMENT WHICH IS REFERRED TO IN SEC. 90 OF THE INCOME TAX ACT THEN THE PERIOD OF LIMITATION WAS REQUIRED TO BE CALCULATED WITH REFERENCE TO CLAUSE-(X) OF EXPLANATION (1) U/S 153 OF THE ACT. CLAUSE-(X) OF E XPLANATION 1 READS AS FOLLOWS: 'FOR THE PURPOSE OF SEC. 153 IN COMPUTING THE PERI OD OF LIMITATION - (X) THE PERIOD COMMENCING FROM THE DATE ON WHICH A REFERENCE OR FIRST OF THE REFERENCES FOR EXCHANGE OF INFORMATION IS MADE BY A N AUTHORITY COMPETENT UNDER AN AGREEMENT REFERRED TO IN SECTION 90 OR SEC TION 90A AND ENDING WITH THE DATE ON WHICH THE INFORMATION REQUESTED IS LAST RECEIVED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER OR A PERIOD OF ONE YEA R WHICHEVER LESS IT IS SUBMITTED THAT IN TERMS OF CLAUSE (X) OF THE EXPLANATION-1 TO SEC. 153 THE AO WAS GIVEN ADDITIONAL 1 YEAR PERIOD FOR COMPLETING THE A SSESSMENT. IN THE PRESENT CASE ADMITTEDLY THE REFERENCE BY A COMPETENT AUTHORITY U /S 90 OF THE I.T. ACT READ WITH ARTICLE 28 OF THE DTAA WITH SINGAPORE WAS MADE ON 2 5.11.2016. AS ON THAT DATE 36 DAYS WERE AVAILABLE TO THE AO FOR PASSING OF THE AS SESSMENT ORDER U/S 153(2) OF THE ACT. HOWEVER ONCE THE REFERENCE UNDER ARTICLE 28 O F THE DTAA WITH SINGAPORE WAS MADE THE PERIOD OF ONE YEAR COMMENCING FROM 25.11. 2016 WAS REQUIRED TO BE EXCLUDED IN WORKING OUT THE PERIOD OF LIMITATION. I N THE RESENT CASE THE PERIOD WHICH WAS REQUIRED TO BE EXCLUDED IN WORKING OUT PERIOD O F LIMITATION COMMENCED ON 5.11.2016 AND ENDED ON 24.11.2017. ADDITIONALLY TH E AO HAD 36 MORE DAYS TO PASS THE ASSESSMENT ORDER FROM 24.11.2017. SINCE THE ASS ESSMENT ORDERS WERE PASSED ON 08.11.2017 THEY WERE WITHIN TIME AND THEREFORE A/R' S CONTENTION THAT THE ASSESSMENT ORDERS WERE BARRED BY LIMITATION IS NOT FACTUALLY A ND LEGALLY ENABLE AND LIABLE TO BE REJECTED. IT MAY ALSO BE PERTINENT TO SUBMIT THAT THE CONTENT IONS RAISED BY THE RESPONDENT- ASSESSEE THROUGH CROSS OBJECTIONS ARE NOT MAINTAINA BLE BECAUSE THESE CONTENTIONS WERE NEVER RAISED BY THE ASSESSEE BEFORE THE CIT(A) AND THE CIT(A) NEVER ADJUDICATED ON THESE FACTUAL AND LEGAL ASPECTS WHIL E DISPOSING THE APPEALS. THE APPEAL BEFORE THE TRIBUNAL ARISES OUT OF THE ORDER OF THE CIT(A) AND THEREFORE THE SCOPE OF APPEAL BEFORE THE TRIBUNAL SHOULD NECESSAR ILY BE RESTRICTED TO THE GROUNDS RAISED BY THE ASSESSEE BEFORE CIT(A) AND DECISION T HEREON BY THE FIRST APPELLATE AUTHORITY. IT IS EVIDENT THAT BEFORE CIT(A) THE AS SESSEE HAD NEVER RAISED THIS SPECIFIC ISSUE OF LIMITATION AND NEVER PRODUCED BEFORE THE C IT(A) ANY FACTUAL MATERIAL AS REGARDS THE DATE ON WHICH THE REFERENCE TO SINGAPOR E TAX AUTHORITY WAS MADE AND THE DATE ON WHICH THE INFORMATION FROM SINGAPORE TA X AUTHORITY WAS RECEIVED. SUCH INFORMATION IS HOWEVER PRODUCED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL AND THE SAME BEING NOT AVAILABLE BEFORE THE LOWER A UTHORITIES IT IS NO MORE OPEN FOR THE ASSESSEE TO MAKE OUT ALTOGETHER NEW CASE BEFORE THE TRIBUNAL AND CLAIM THAT THE MA NO.150-153/KOL/2019 DCIT CC3(3) KOL. VS. BISWANATH GARODIA PAGE 3 ASSESSMENT ORDERS WERE TIME BARRED WITH REFERENCE T O NEW EVIDENCE BROUGHT BEFORE THE TRIBUNAL FOR THE FIRST TIME. SUBMITTED FOR THE CONSIDERATION OF THE HON'BLE TRIB UNAL. 7. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L CONTENTIONS. MR. DAMLE VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING TH AT ALL FOUR RE-ASSESSMENTS FRAMED IN THE IMPUGNED AS MANY AS ASSESSMENT YEARS ARE TIM E BARRED. I DEEM IT APPROPRIATE AT THIS STAGE TO RECAPITULATE THE RELEVANT FACTS ONCE AGAIN. THE ASSESSING OFFICER ADMITTEDLY SET SEC. 148 RE-OPENING MECHANISM IN MOT ION IN IDENTICAL FOUR NOTICES ISSUED ON 16.02.2016 WHICH STOOD SERVED ON THE TAXP AYER ON 19.02.2016 FOLLOWED BY THE IMPUGNED RE-ASSESSMENTS FRAMED ON 08.11.2017. S ECTION 153 OF THE ACT PRESCRIBES TIME LIMIT FOR COMPLETION OF ASSESSMENT RE-ASSESSM ENT & RE-COMPUTATION. SUB-SECTION 2 THEREOF MAKES IT CLEAR THAT NO ORDER OF ASSESSMEN T RE-ASSESSMENT OR RE-COMPUTATION SHALL BE MADE U/S 147 AFTER EXPIRY OF NINE MONTHS F ROM THE END OF THE FINANCIAL YEAR IN WHICH SEC. 148 NOTICE STOOD SERVED. THERE CAN HARDL Y BE ANY DISPUTE ABOUT NINE MONTHS FROM THE END OF THE FINANCIAL YEAR OF SUCH S ECTION 148 NOTICE SERVICE DATED 19.02.2016; LAST UPTO 31.12.2016. THE REVENUES SUB MISSION EXTRACTED HEREINABOVE ARE FAIR ENOUGH TO THIS EFFECT. I THEREFORE OBSERVE THAT LAST DATE OF FRAMING OF RE- ASSESSMENTS IN ALL THESE ASSESSMENT YEARS WAS 31.12 .2016. 8. I FURTHER NOTICE THAT EXPLANATION-1 TO SEC. 153 PRESCRIBES CERTAIN SPECIFIED CIRCUMSTANCES IN CLAUSES (I) TO (XI) AS EXCEPTION T O STATUTORY RUNNING OF LIMITATION PERIOD IN FRAMING OF ASSESSMENT RE-ASSESSMENT & RE -COMPUTATION. CLAUSE(X) DEALS WITH AN INSTANCE OF EXCHANGE OF INFORMATION BETWEEN COMPETENT AUTHORITY OF THE TWO COUNTRIES U/S 90 AND 90A WITH GOVERNMENT OF INDIA BEING ONE OF THEM. I NOTICE THAT THE CBDT (FT AND TR (FOREIGN TAX AND TAX RESEARCH D IVISION) MADE NECESSARY REFERENCE ON 25.11.2016 ON WHICH STOOD REPLIED 08.0 8.2017 AS PER THE REVENUES STAND. THE SAID PERIOD OF ALMOST NINE MONTHS DESERV ES TO BE EXCLUDED SINCE COMING UNDER CLAUSE (X) OF EXPLANATION-1 TO SEC. 153 OF TH E ACT. THE ASSESSING OFFICER WAS VERY WELL AWARE OF ALL CLINCHING DEVELOPMENTS DURIN G THE COURSE OF RE-ASSESSMENT REGARDING EXCHANGE OF COMMUNICATION BETWEEN THE TWO TAX JURISDICTIONS AS HE ONLY HAD INITIATED THE NECESSARY PROCESS IN QUESTION TRI GGERING SEC. 90 R.W.S. 91 MACHINERY IN MOTION. 9. I PROCEED WITH THE SOLE ISSUE OF LIMITATION IN T HIS FACTUAL BACKDROP. I REPEAT AT THIS STAGE THAT SEC. 153 EXPLANATION-1 CLAUSE-(X) EXPRES SLY STIPULATES THAT THE RELEVANT TIME PERIOD WHICH IS TO BE EXCLUDED AS OUTSIDE THE PURVI EW OF LIMITATION PRESCRIBED FOR FRAMING ASSESSMENTS RE-ASSESSMENTS IS THE PERIOD C OMMENCING FROM THE DATE ON WHICH REFERENCE OR FIRST OF THE REFERENCE FOR EXCHA NGE OF THE INFORMATION IS MADE BY AN AUTHORITY COMPETENT UNDER AN AGREEMENT IN SEC. 9 0 OR SEC. 90A AND ENDING WITH THE DATE ON WHICH THE INFORMATION REQUESTED IS LAST REC EIVED BY THE PCIT OR CIT OR ONE YEAR; WHICHEVER IS LESS. THE LATTER DATE QUA OTHER SIDE INFORMATION IS 08.08.2017 FOLLOWED BY THE IMPUGNED RE-ASSESSMENTS FRAMED ON 0 8.11.2017 IN THE INSTANT LIS. I FIND NO SUBSTANCE IN MR. SINGHS ARGUMENTS. I MAKE IT CLEAR FIRST OF ALL THAT THE DEPARTMENT HAS ITSELF TREATED 08.08.2017 TO BE THE LATTER OF THE DATE(S) FALLING IN FORMER LIMB OF SEC. 153 EXPLANATION-1 CLAUSE-(X) OF THE AC T. I THEREFORE OBSERVE IN THIS FACTUAL BACKDROP THAT THE TIME SPAN BETWEEN SAID REFERENCE AND FINAL INFORMATION I.E. 25.11.2016 TO 08.08.2017 IS ADMITTEDLY LESS THAN ON E YEAR AS PER WHICHEVER IS LESS CONNOTION IN CLAUSE-(X). I AM THEREFORE OF THE OPIN ION THAT THE CLOCK OF LIMITATION THAT MA NO.150-153/KOL/2019 DCIT CC3(3) KOL. VS. BISWANATH GARODIA PAGE 4 HAD STOPPED TICKING ON 25.11.2016 AT THE TIME OF CB DT REFERENCE RESUMED ON 08.08.2017. MEANING THEREBY THAT 36 DAYS OF TIME LI MITATION BETWEEN 25.11.2016 TO 31.12.2016 AS PER ORIGINAL LIMITATION STOOD RESTORE D WITH EFFECT FROM 08.08.2017 ONWARDS. THIS CRUCIAL PERIOD OF 36 DAYS TAKEN FROM 08.08.2017 ONWARDS EXPIRES VERY WELL BEFORE 08.11.2017 IN ALL FOUR CASES. 10. MR.SINGH LASTLY INVITES MY ATTENTION TO 1 ST PROVISO TO EXPLANTION-1 TO SEC. 153 OF THE ACT THAT THE TIME LIMIT IN SUCH A CASE OF 36 DA YS HEREINABOVE HAS TO BE FURTHER EXTENDED BY 60 DAYS WHICH BRINGS THE IMPUGNED RE-AS SESSMENTS WITHIN LIMITATION. THIS PLEA IS ALSO DEVOID OF ANY MERIT. I FIND THAT THE ABOVE STATED PROVISO STIPULATES THAT THE REMAINING TIME LIMIT HAS TO BE EXTENDED TO 60 DAYS IF IT IS LESS THAN THE SAID PERIOD. THE SAME CLAUSE CANNOT BE READ AS EXTENSION OF TIME LIMIT FOR FURTHER 60 DAYS. IN ANY CASE THIS REMAINING PERIOD OF 24 DAYS; IF AD DED TO EARLIER 36 DAYS STARTING FROM 08.08.2017 EXPIRES ON 07.10.2017 AS AGAINST THE RE -ASSESSMENTS IN ISSUE DATED 08.11.2017. I CONCLUDE IN THIS FACTUAL BACKDROP THA T ALL THE IMPUGNED RE-ASSESSMENTS IN THESE FOUR ASSESSMENT YEARS ARE CLEARLY TIME BAR RED SINCE FRAMED ON 08.11.2017 GOING BY THE ABOVE STATUTORY PROVISION. I QUASH THE IMPUGNED RE-ASSESSMENTS SINCE NOT FRAMED WITHIN STATUTORY LIMITATION PERIOD. THE ASSE SSEES FOUR CROSS OBJECTION NO.128 130-132/KOL/2018 ARE ACCEPTED. THE REVENUE S APPEALS ITA NO.2243- 2246/KOL/2018 FAIL ACCORDINGLY. 2. LEARNED DEPARTMENTAL REPRESENTATIVE INVITED MY A TTENTION TO THE REVENUES FOLLOWING IDENTICAL PLEADINGS RAISED IN INSTANT FOU R MISCELLANEOUS APPLICATIONS:- E. AO'S COMMENTS:- IT IS TO STATE THAT IN THIS CASE REFERENCE WAS MADE TO THE SINGAPORE TAX AUTHORITY THROUGH FT&TR AND THE PERIOD OF LIMITATION WAS EXTE NDED FROM 31.12.2016 AS PER EXPLANATION 1 4(X) TO SECTION 153 OF THE INCOME TA X ACT 1961 WHICH READS AS UNDER: 'THE PERIOD COMMENCING FROM THE DATE ON WHICH A REF ERENCE WAS OR FIRST OF THE REFERENCES FOR EXCHANGE OF INFORMATION IS MADE BY A N AUTHORITY COMPETENT UNDER AN AGREEMENT REFERRED TO IN SECTION 90 OR SEC TION 90A AND ENDING WITH THE DATE ON WHICH THE INFORMATION REQUESTED IS LAST RECEIVED BY THE PR. COMMISSIONER OR COMMISSIONER OR A PERIOD OF ONE YEA R WHICH IS LESS'. E.1 A ONE PAGE COMMUNICATION WAS RECEIVED FROM THE SINGAPORE TAX AUTHORITY ON 19.04.2017 AND NOT ON 08/08/2017 AS WRITTEN IN THE HON'BLE ITAT ORDER WHEREBY IT WAS STATED THE INFORMATION REQUESTED HAS BEEN OBJEC TED TO AND IT WAS FURTHER ASKED IF THE INFORMATION WAS STILL REQUIRED AS 31/12/2016 HA S BEEN PASSED AS MENTIONED IN PARA D2 ABOVE AND COPY OF THE REPLY FROM SINGAPORE DATED 10TH MARCH 2017 WAS SERVED ON THE ASSESSEE ALSO. IT WAS FURTHER INFORMED TO TH E SINGAPORE TAX AUTHORITY THAT INFORMATION IN THIS CASE WAS STILL REQUIRED AS LIMI TATION HAS BEEN EXTENDED UNDER CLAUSE (X) OF EXPLANATION 1 UNDER SECTION 153 AND F URTHER REFERENCE WAS MADE THROUGH THE FT&TR DIVISION. THE FURTHER CORRESPONDENCES IN THIS REGARD ARE ENCLOSED HEREWITH AS ANNEXURE D. E2. HENCE THE COMMUNICATION RECEIVED FROM THE SINGA PORE TAX AUTHORITIES ON 19/04/2017 WAS ONLY AN INTERMEDIARY REPLY WITH NOTH ING OF INFORMATION REQUESTED HAS BEEN RECEIVED AND NOT THE LAST ONE. I T IS MENTIONED IN IT THAT IT IS MA NO.150-153/KOL/2019 DCIT CC3(3) KOL. VS. BISWANATH GARODIA PAGE 5 RELATED TO THE POINT 6 OF THE INFORMATION REQUESTED THE SAME LEGAL TERM USED BY THE SINGAPORE TAX AUTHORITY ALSO. THE REPLY SUBM ITTED BY THE DR BEFORE THE HON'BLE ITAT KOLKATA IS ONLY A DISTORTED REPLY. TH E DATE HE MENTIONED IN HIS REPLY AS 08/08/2017 (COPY ENCLOSED IN ANNEXURE D) IS THE DATE OF THE LETTER OF THE PR COMMISSIONER OF INCOME TAX CENTRAL-2 KOLKATA SENT TO THE FT & TR DIVISION OF THE CBDT SENDING THE CLARIFICATION ON THE INTERIM COMMU NICATION OF THE SINGAPORE TAX AUTHORITY DATED 10 TH MARCH 2017 RECEIVED BY THIS OFFICE ON 19/04/2017 . SO THE DATE FROM THE ASSESSMENT RECORD WAS MIS-READ BY HIM. ON SUCH CLARIFICATION THE FT & TR DIVISION HAS SENT IT TO THE SINGAPORE TAX AUTHORITY ON 13/09/2017. IN RESPONSE TO THAT THE SINGAPORE TAX AUTHORITY HAS SENT ONE REPLY WITH PART OF INFORMATION REQUESTED ON 02/02/2018 WHERE REPLY TO FIRST TWO P OINTS WERE GIVEN AND IT WAS ALSO MENTIONED IN THAT LETTER THAT THE SINGAPORE TA X AUTHORITY IS TRYING TO SEND THE REPLIES TO NEXT 6 POINTS OF INFORMATION REQUESTED. IT WAS RECEIVED BY THE FT & TR DIVISION OF CBDT ON 13/02/2018 AND BY THIS OFF ICE ON 26/02/2018. HENCE AS PER THE EXPLANATION 1 (X) THE CASE WAS TO BE BARRE D BY LIMITATION ON 25.11.2017 AND ASSESSMENT PROCEEDINGS WERE COMPLETED ON 08.11.2017 . E.2 THE HON'BLE ITAT KOLKATA TAKING THE LAST DATE OF COMMUNICATION RECEIVED FROM THE SINGAPORE TAX AUTHORITIES AS 08.08.2017 GAVE R ELIEF TO THE ASSESSEE. MORE OVER IT IS FURTHER TO SUBMIT THAT THE ABOVE GROUND BEING T HE AGITATION OF THE ASSESSEE ON WHICH THE APPEAL OF THE REVENUE WAS DISMISSED WAS TAKEN UP BY THE ASSESSEE BEFORE THE HON'BLE ITAT KOLKATA FOR THE FIRST TIME. THE ABOVE GROUND WAS NOT TAKEN BY THE ASSESSEE BEFORE THE LD. CIT THE AO DURING THE COURS E OF APPEAL! ASSESSMENT PROCEEDINGS THOUGH THE COPY OF THE REPLY FROM THE S INGAPORE TAX AUTHORITY DATED 10/03/2017 RECEIVED BY THIS OF TICE ON 19/04/2017 WAS SERVED ON THE ASSESSEE. E3. SURPRISINGLY AGAINST THE RULE THE COPY OF SUCH CROSS OBJECTION WAS NOT PROVIDED TO THE AO. AFTER THE ORDER OF THE HON;BLE ITAT KOLKAT A WAS RECEIVED A LETTER WAS WRITTEN TO THE ASSTT / DY REGISTRAR ITAT KOLKATA O N 03/05/2019 IT WAS SERVED ON 06/05/2019. COPY ENCLOSED AS ANNECURE E. BUT TILL D ATE ON REPEATED VISIT OF THE ITAT OFFICE THE REPLY HAS NOT BEEN RECEIVED AND TH E COPY OF THE CROSS-OBJECTION HAS NOT BEEN RECEIVED. AND AS SUCH THE ASSESSING OFFICE R WAS UNAWARE OF THE GROUNDS TAKEN BY THE ASSESSEE BEFORE ITAT KOLKATA AND LEAR NT ONLY ON RECEIVING THE ORDER OF THE HON'BLE ITAT KOLKATA. IT IS ALSO SEEN THAT THE OR HAS SUBMITTED A WRONG REPLY TO THE HON'BLE ITAT. ACTUALLY THE INTERIM COMMUNICATIO N FROM SINGAPORE TAX AUTHORITY WAS RECEIVED ON 19/04/2017 WHEN IT HAS BEEN MENTION ED BY THE OR AS IT WAS RECEIVED ON 08/08/2017. THIS IS TO MENTION THAT THE ASSESSME NT RECORD WITH THE DOCUMENTS OF COMMUNICATION FROM THE SINGAPORE TAX AUTHORITY WAS SENT TO OR ON 07/03/2019 AND THE HEARING WAS DONE AT ITAT ON 20/03/2019. THE LD DR HAS REPLIED AFTER VERIFICATION OF ASSESSMENT RECORD BUT SUBMITTED A W RONG REPLY TO THE HON'BLE ITAT HAS NOT GONE THROUGH THE ASSESSMENT RECORD AND ALSO DIDN'T CONSULT THE AO BUT SUBMITTED REPLY TO THE HON'BLE ITAT WHICH RESULTED IN THE DISMISSAL OF THE DEPARTMENTAL APPEAL AND ALLOWANCE OF THE ASSESSEE'S CROSS OBJECTION. THE DR HAS FAILED TO APPRECIATE THAT THE COMMUNICATION FROM TH E SINGAPORE TAX AUTHORITY DOES NOT CONTAIN ANY INFORMATION AS ASKED THROUGH THE FT & TR DIVISION . HENCE IT CANNOT BE SAID THAT INFORMATION REQUESTED WAS RECEIVED BY THE DEPARTMENT THROUGH FT & TR DIVISION OF CBDT. THE LD DR HAS ALSO MENTIO NED IN HIS REPLY THAT THE ISSUE TAKEN BY THE ASSESSEE IN CROSS-OBJECTION IS A NEW O NE AND IT SHOULD BE SENT TO THE AO WHICH WAS DENIED BY THE HON'BLE ITAT KOLKATA MA NO.150-153/KOL/2019 DCIT CC3(3) KOL. VS. BISWANATH GARODIA PAGE 6 E 3. THIS IS FURTHER TO SUBMIT THAT AS SOON AS THE INTERIM REPLY HAS BEEN RECEIVED FROM THE PRINCIPAL CIT'S OFFICE ON 19/04/2017 A LETTER HAS BEEN WRITTEN TO THE LD PR CIT ON 20/04/2017 AND IT WAS FORWARDED BY THE ADDL CIT RA NGE-3 CENTRAL ON 21/04/2017. FROM THESE LETTERS IT IS APPARENT THAT THE REPLY UN DER REFERENCE FROM SINGAPORE TAX AUTHORITY HAS BEEN RECEIVED BY THIS OFFICE ON 19/04 /2017. AFTER THE COMPLETION OF THE PROCEDURE A REFERENCE WAS MADE BY THE PR CIT (C )- 2 KOL TO THE FT & TR DIVISION OF THE CBDT ON 08/08/2017. THE COPIES ARE ATTACHED HEREWITH AS ANNEXURE-D. THE SINGAPORE REVENUE AUTHORITY HAS SENT A REPLY WITH S OME DOCUMENTS ON 02/02/2018 WHICH WAS RECEIVED BY THE FT & TR DIVISION OF THE C BDT ON 13/02/2018 AND IN THE PRINCIPAL COMMISSIONER OF INCOME TAX (C)-2 KOL'S O FFICE ON 26/02/2018. REPLY HAS BEEN SENT BY THE ASSESSING OFFICER ON 27/02/2018. [ ANNEXURE - CONFIDENTIAL-4 WILL BE PRODUCED DURING HEARING]. F ROM THE REPLY OF THE SINGAPORE REVENUE AUTHORITY IT IS CONFIRMED THAT IN REPLY TO THE INTERIM COMMUNICATION DATED 10/03/2017 RECEIVED BY THIS OFF ICE ON 19/04/2017 THE FT & TR DIVISION OF THE CBDT HAS REFERRED ANOTHER LETTER WI TH CLARIFICATION DATED 13/09/2017 AS MENTIONED IN THE REPLY OF THE FT & TR DIVISION O F THE CBDT. IT PROVED THAT FURTHER REFERENCE WAS MADE BY THE FT & TR DIVISION OF THE CBDT TO SINGAPORE REVENUE AUTHORITY ON 13/09/2017 IN CONTINUANCE OF T HE PSCT'S LETTER TO FT & TR DIVISION ON 08/08/2017. IN THE LETTER SENT BY THE F T & TR DIVISION OF THE CBDT ON 21/02/2018 AND RECEIVED BY THE PRINCIPAL CIT(C)-2 KOL ON 26/02/2018 IT WAS MENTIONED BY THE SINGAPORE REVENUE AUTHORITY THAT WE ENCLOSE A MEMORANDUM CONTAINING SOME OF THE REQUESTED INFORMATION AS WEL L AS OUR RESPONSE TO YOUR LETTER DATED 13/09/2017. ' IT IS ALSO MENTIONED IN THAT LETTER THAT THE ' INFORMATION REQUESTED ' TO POINT NO 1 & 2 ARE PROVIDED. REGARDING THE POI NTS 3 TO 8 IT IS MENTIONED BY SINGAPORE REVENUE AUTHORITY THAT:- WE ARE STILL IN THE PROCESS OF RETRIEVING THE REMA INING REQUESTED INFORMATION FROM MSM AND OMT. WE ENDEAVOUR TO PROVIDE YOUR OFFI CE WITH THE INFORMATION ONCE THEY ARE AVAILABLE'. E 3.1 FROM THE ABOVE IT IS APPARENT THAT IT IS THE FIRST TIME THE PART OF THE INFORMATION REQUESTED AGAINST POINT 1 & 2 HAS BEEN OBTAINED ON 26/02/2018 BY THE PR CIT (C)-2 KOLKATA VIDE LETTER FROM THE S INGAPORE REVENUE AUTHORITY DATED 02/02/2018. IT IS TO MENTION THAT THE SINGAPORE REV ENUE AUTHORITY HAS ALSO MENTIONED THE WORD INFORMATION REQUESTED IN THEIR LETTER DATE D 02/02/2018 WHICH IS THERE IN THE EXPLANATION (X) GIVEN U/S 153. HENCE I T IS APPARENT THAT THE LETTER DATED 09/04/2017 CAN'T BE THE INFORMATION LAST RECEIVED B Y THE PR CIT (C )-2 KOL AND IN FACT AS IN THE LETTER DATED 02/02/2018 THE SINGAPORE RE VENUE AUTHORITY HAS MENTIONED THAT THE REPLY TO POINT NO 1 & 2 WITH INFORMATION REQUES TED HAS BEEN PROVIDED WITH THIS LETTER DATED 02/02/2018 AND THE BALANCE OF INFORMAT ION REQUESTED IN POINT NO.S 3 TO 8 WILL BE PROVIDED LATER. IT IS PROVED THAT NONE OF T HE INFORMATION REQUESTED WAS PROVIDED IN THE LETTER RECEIVED ON 19/04/2017. THE LD DR HAS MENTIONED THE LETTER WRONGLY THE 08/08/2017 AS THE DATE ON INFORMATION R ECEIVED AS IN THE RECORD IT WAS SEEN BY HIM THAT THE REPLY TO INTERIM COMMUNICATION FROM SINGAPORE REVENUE AUTHORITY RECEIVED ON 19/04/2017 WAS SENT BY THE PR CIT-(C)-2 KOL ON 08/08/2017 WHICH IS A DISTORTION OF FACTS. THIS IS TO MENTION HERE THAT THE REPLY FROM THE SINGAPORE REVENUE AUTHORITY CAN'T BE ENCLOSED AS IT IS PROHIB ITED TO MAKE IT PUBLIC AS THE TREATY BETWEEN TWO COUNTRIES IN DTAA. IT SHALL BE PRODUCED BEFORE THE HON'BLE ITAT KOLKATA AND ALSO MAY BE PRODUCED BEFORE THE ASSESSE E 1 AR OF THE ASSESSEE DURING THE HEARING AND AS AND WHEN DIRECTED. MA NO.150-153/KOL/2019 DCIT CC3(3) KOL. VS. BISWANATH GARODIA PAGE 7 LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONT ENDED IN TUNE WITH THE REVENUES PLEADINGS THAT THE TRIBUNALS COMMON ORD ER HAS ERRED IN LAW AND ON FACTS IN HOLDING THE IMPUGNED ASSESSMENT(S) TO BE TIME BARRE D BY INCORPORATING THE RELEVANT DATE OF INFORMATION AS 08.08.2017 THAN 26.02.2018 W HILST HOLDING THE ASSESSMENT(S) / RE-ASSESSMENT(S) FRAMED ON 08.11.2017 AS TIME BARRE D. HIS FURTHER CASE IS THAT THE DEPARTMENT HAD ALSO NOT BEEN INTIMATED ABOUT ASSESS EES CROSS OBJECTION IN ALL FOUR REVENUES APPEALS AS PER RULES. AND ALSO THAT THE A SSESSEE HAD RAISED HIS LIMITATION PLEA FOR THE FIRST TIME BEFORE THE TRIBUNAL. 3. I FIND NO SUBSTANCE IN REVENUES INSTANT ARGUMEN TS BASED ON THE ABOVE EXTRACTED PLEADINGS. IT HAS COME ON RECORD THAT THE DEPARTMENT ITSELF HAD FILED A LETTER BEFORE THE TRIBUNAL STATING THE RELEVANT DATE OF RE CEIVING INFORMATION AS 08.08.2017. THE BENCH THEREFORE PROCEEDED TO EXAMINE LEGALITY O F THE IMPUGNED ASSESSMENT(S) BASED ON THE DEPARTMENTS INFORMATION ONLY. THE BEN CH HAD DULY HEARD THE DEPARTMENT AT LENGTH. THE ASSESSEE ALSO APPEARS TO HAVE RAISED HIS LIMITATION PLEA BEFORE THE ASSESSING OFFICER AS EVIDENT FROM PARA 6.2 PAGE 23 OF THE ASSESSMENT ORDER GROUND NO.3 RAISED WITH FORM 35 IN FIRST APPEAL AS WELL AS PARA 3 PAGE 30 OF THE LOWER APPELLATE ORDER UNDER CHALLENGE. BE THAT AS IT MAY THE FACT REMAINS THAT THE TRIBUNALS COMMON ORDER HAD HEARD THE DEPARTMENT AT LENGTH WHI LST DISMISSING THE MAIN APPEALS. HON'BLE GUJARAT HIGH COURTS DECISION IN TAX APPEAL NOS.327-332/2017 CIT (E) VS. GUJARAT INSTITUTE OF HOUSING & ESTATE DEVELOPERS HOLDS THAT AN ERROR WHICH REQUIRES ELABORATE CONSIDERATION DISCUSSION & REASONING IN PROCEEDINGS U/S. 254(2) OF THE ACT DOES NOT AMOUNT TO AN ERROR APPARENT ON RECORD. I C ONCLUDE IN THESE FACTS THAT THE REVENUES GRIEVANCE CANVASSED IN ALL THESE MISCELLA NEOUS APPLICATIONS TANTAMOUNT TO REVIEW OF THE TRIBUNALS ORDER NOT PERMISSIBLE IN L AW. THE REVENUES THEREFORE FAILS IN ALL OF ITS INSTANT MISCELLANEOUS APPLICATION(S). 4. THESE REVENUES MISCELLANEOUS APPLICATIONS ARE D ISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 06/11/2018 SD/- (S.S. GODARA) JUDICIAL MEMBER KOLKATA *DKP/SR.PS ( - 06/11/2018 MA NO.150-153/KOL/2019 DCIT CC3(3) KOL. VS. BISWANATH GARODIA PAGE 8 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SRI BISWANATH GARODIA 9 DOVER PARK KOLK ATA-19 2. /REVENUE-DCIT CC-3(3) AAYKAR BHAWAN POORVA E.M. BYPASS 110 SHANTIPALLY 4 TH FLOOR KOLKATA-107 3. + / CONCERNED CIT 4. - / CIT (A) 5. + $ + / DR ITAT KOLKATA 6. / GUARD FILE. BY ORDER/ /TRUE COPY/ $ +