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Income Tax Appellate Tribunal, C(SMC
Before: SHRI RAJESH KUMAR, AM
IN THE INCOME TAX APPELLATE TRIBUNAL "C(SMC)" BENCH , KOLKATA BEFORE SHRI RAJESH KUMAR, AM
ITA No.371/KOL/2024 (Assessment Year: 2012-13)
PRADEEP KUMAR BANERJEE
7 Red Cross Place, Kolkata, West Bengal, 700001
Vs.
CIT (APPEALS)
Delhi,
(Appellant) (Respondent)
PAN No. ADTPB8996N
Assessee by : Shri R .K . Duggal, AR Revenue by : Shri Ashutosh Kumar, DR
> Date of hear ing: 25 .03 .2025 Date of pronouncement : 01 .04.2025
O R D E R
This is an appeal preferred by the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the "Ld. CIT(A)"] dated 13.05.2023 for the AY 2012-13.
- 02. The issue raised in ground no. 1 is a legal issue and is against the order of ld. CIT (A) upholding the assessment order passed u/s 147/143 of the Act pursuant to the proceeding u/s 148 of the Act , which were invalid and void ab initio. - 03. The facts in brief are that the assessee filed the return of income on 29.09.2019, declaring the total income of ₹1,76,977/- . The said return was revised on 08.03.2013, by declaring the total income at ₹6,82,318/-.Thereafter the assessment reopened u/s 147 of the Act by issuing notice u/s 148 of the Act and the assessee filed the return of income in compliance thereto on 15.10.2018, by declaring total income of ₹6,82,318/-. The assessee also filed the objections to the
said reopening. Accordingly, the notices u/s 143(2) and 142(1) of the along with questionnaire were issued and the assessee complied with the same by filing the various evidences and documents as called for the Assessing Officer. Finally, the assessment was made vide order dated 11.12.2018, passed u/s 147/ 143(3) of the Act by making three additions namely i) ₹10,50,600/- on account of professional income received by the assessee which was not disclosed in the return of income, ii) ₹47,775/- u/s 40(A)(3) of the Act and iii) ₹6,24,180/- u/s 40(a)(ia) of the Act.
- 04. The assessee challenged the order before the ld. CIT (A) on legal issue as well as on merit, however, the appeal of the assessee was dismissed by the ld. CIT (A). - 05. After hearing the rival contentions and perusing the materials available on record, I find that in this case, the assessee has filed the original return of income on 29.09.2012, which was revised on 08.03.2013, however, the ld. AO while reopening the assessment and while obtaining the approval of the competent authority has failed to take cognizance of the same . We also note that there are so many factual mistakes by the ld AO while recording the reasons. The ld. AO noted in the reasons that the total payments made by the assessee were 34,82,179/-, however, the same was incorrect and as per Form 26AS (TDS) it was ₹34,95,369/-. Similarly, the figure noted from the profit and loss account was stated at ₹26,66,799/-, which was also factually incorrect. Moreover, I note that in the column 13 of reasons recorded , the ld. PCIT stated 'fit case, approved' and no satisfaction was recorded by the ld. PCIT before granting the approval. The case of the assessee is squarely covered by the decision of Hon'ble Delhi High Courtin case of Capital Broadways Pvt. Ltd. Vs. ITO in WP(C) 4303/
2017 dated 03.10.2024, wherein the Hon'ble court has decided the similar issue by holding that mere mechanical manner of approval is not valid and the reopening made based upon that said approval is bad in law.
- 06. Besides, I note that this assessment was framed by ignoring the revised return filed by the assessee. I note that even the revised return was duly processed by the CPC. Therefore, the re-assessment proceedings initiated on the basis of such incorrect and vague facts and invalid approval cannot be sustained. The case of the assessee also supported by the decision of CIT VS. Mangalore Chemicals & Fertilizers Ltd. (1990) 59 taxmann 508 (KAR) and PCIT Vs. Babubhai Ramanbhai Patel (2017) 84 taxmann.com 32 (Gujarat), wherein the order of the Hon'ble court held that once a revised return is filed, the original return must be taken to have been withdrawn and substituted by a fresh return for the purpose of assessment. Considering these facts, I am inclined to quash the reopening of assessment made by the Assessing Officer. The appeal of the assessee is allowed on legal issue. - 07. In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 01.04.2025.
Sd/- (RAJESH KUMAR) (ACCOUNTANT MEMBER)
Kolkata, Dated: 01.04.2025
Sudip Sarkar, Sr.PS
Copy of the Order forwarded to :
- 1. The Appellant - 2. The Respondent - 3. CIT - 4. DR, ITAT, - 5. Guard file.
BY ORDER,
Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata