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Income Tax Appellate Tribunal, “D” BENCH : KOLKATA
Before: Hon’ble Shri J.Sudhakar Reddy, AM & Hon’ble Shri S.S. Viswanethra Ravi, JM ]
IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH : KOLKATA [Before Hon’ble Shri J.Sudhakar Reddy, AM & Hon’ble Shri S.S. Viswanethra Ravi, JM ] I.T.A No. 2147/Kol/2017 Assessment Year : 2009-10 DCIT, Central Circle-2(1), Kolkata -vs- M/s Basanti Hosiery Pvt. Ltd. [PAN: AADCB 3168 J] (Appellant) (Respondent) C.O. No. 98/Kol/2018 (Arising out of I.T.A No. 2147/Kol/2017) Assessment Year : 2009-10 M/s Basanti Hosiery Pvt. Ltd. -vs- DCIT, Central Circle-2(1), Kolkata [PAN: AADCB 3168 J] (Appellant) (Respondent)
For the Appellant : Shri C.J. Singh, Sr. DR For the Revenue : Shri R.P. Agarwal, Sr. Advocate Shri N. Sheth, FCA Date of Hearing : 01.11.2018 Date of Pronouncement : 28 .11.2018
ORDER Per J.Sudhakar Reddy, AM
This appeal is filed by the revenue directed against the order of the ld CIT(A)- 20, Kolkata passed u/s 143(3) / 147 of the Income Tax Act, 1961 on the following grounds:
2 ITA No.2147/Kol/2017& C.O. No.98/Kol/2018 M/s Basanti Hosiery Pvt. Ltd. A.Yr.2009-10 1. That on the facts and circumstances of the case, the ld. CIT(A) erred in law in allowing the technical grounds of appeal, Ground no. 1 and 8 discussing wrong facts and law. 2. That on the facts and circumstances of the case, the ld. CIT(A) erred in law by allowing the technical grounds taken by the assessee holding the reasons recorded by the AO as void ab initio and is laible to be quashed and hence, the assessment order passed, is bad in law mainly discussing and relying on those case laws in which it was held that reopening of assessment was bad in law on the grounds that reopening was done beyond the four years after passing of order u/s 143(3) and there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment but the ld. CIT(A) failed to examine the facts of this case in which original assessment was done u/s 143(1)(a) and not u/s 143(3) and hence first proviso to section 147 did not apply in the instant case. 3. That on the facts and circumstances of the case, the ld. CIT(A) has erred in not considering the facts of the case that original assessment in this case was completed u/s 143(1)(a) and hence, requirement of first proviso to section 147 of recording of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment, was not required. 4. That on the facts and circumstances of the case, the ld. CIT(A) has erred in allowing the appeal of the assessee only on technical grounds without examining the case on merit of addition, without examining the facts of the case and without applying the correct law on the facts of the case and hence order of ld. CIT(A) deserves to be set aside. 5. That the department craves leave to add, alter or modify any grounds of appeal in the course of Appellate proceedings.
Cross objections have been filed by the assessee company on the following grounds: 1. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in making addition of Rs. 1,18,00,000/- under section 68 of the Income Tax Act, 1961, when no incriminating documents was found during the course of search. The Ld. CIT (A) has erred in not adjudicating this ground on merit. 2. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in making addition of Rs. 1,18,00,000/- under section 68 of the Income Tax Act, 1961 without allowing proper opportunity of being heard and violating the principle of natural justice. The Ld. CIT (A) has erred in not adjudicating this ground on merit. 3. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in making addition of Rs. 1,18,00,000/- under section 68 of the Income Tax Act, 1961 on the basis that director of the share allotees company was not produced before him. 'The Ld. CIT (A) has erred in not adjudicating this ground on merit.
3 ITA No.2147/Kol/2017& C.O. No.98/Kol/2018 M/s Basanti Hosiery Pvt. Ltd. A.Yr.2009-10 4. That in the facts and circumstances of the case, the Learned Assessing Officer has violated the principles laid down in section 142(3) of the Income Tax Act, 1961, by relying on documents collected under section 133(6) of the Income Tax Act, 1961, behind the back of the appellant and not communicated to the appellant. Hence, the additions made consequent thereto are void ab initio. The Ld. CIT (A) has erred in not adjudicating this ground on merit. 5. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in making addition of Rs. 1,18,00,000/- under section 68 of the Income Tax Act, 1961 by irrelevantly relying on the alleged statement of Ritesh Kedia. The Ld. CIT (A) has erred in not adjudicating this ground on merit. 6. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in observing that the share applicants companies couldn't be physically found at their given address. In fact, the Learned Assessing Officer was attempting to serve notices at their old address. The Ld. CIT (A) has erred in not adjudicating this ground on merit. 7. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in making addition of Rs. 1,18,00,000/- under section 68 of the Income Tax Act, 1961 on the basis of alleged statement of various persons recorded under section 131 of the Act without allowing the appellant to cross examine them. The Ld. CIT CA) has erred in not adjudicating this ground on merit. 8. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in making addition of Rs.2,36,000/- under section 69C of the Income Tax Act, 1961. The Ld. CIT(A) has erred in not adjudicating this ground on merit. 9. That in the facts and circumstances of the case, the Ld. Assessing Officer has erred in making additions of Rs.1,0,36,000/- in the order passed under section 147 of the Income Tax Act,1961without passing speaking order against objection in response to notice under section 148 issued by the Ld. Assessing Officer and hence the entire proceedings under section 147 and additions thereto are illegal and liable to be quashed .. The Ld. CIT(A) has erred in not adjudicating this ground on merit. 10. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in making additions purely on the basis of surmises conjectures, pre- conceived notion, and suspicion. The Ld. CIT (A) has erred in not adjudicating this ground on merit. 11. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in levying interest under section 234B of the Act and / or the calculation of tax and interest thereon is incorrect. 12. That the appellant humbly craves leave to add, alter, withdraw all or any grounds of appeal at the time of hearing.
The assessee is a company and is in the business of dealing of readymade garments and fabrics. It filed its return of income for assessment year 2009-10 u/ 139 of the Act on 21.09.2009. The return was processed u/s 143(1) of the Act. The assessing officer recorded reasons for reopening and therefore re-opened the assessment u/s 147 of the 3
4 ITA No.2147/Kol/2017& C.O. No.98/Kol/2018 M/s Basanti Hosiery Pvt. Ltd. A.Yr.2009-10 Act and issued notice u/s 148 of the Act on 28.03.2016. The reopened assessment was completed u/s 143(3) read with section 147 on 10.11.2016 determining total income of Rs. 1,20,89,000/-. Aggrieved the assessee carried the matter in appeal.
The first appellate authority considered the argument of the assessee and held that the reopening of assessment u/s 147 of the Act was bad in law. He cancelled the assessment on this ground. As he had decided the case on this technical ground, he did not adjudicate the appeal on merits. Aggrieved the revenue is in appeal before us and the assessee filed cross objection.
After hearing rival submissions and on a careful consideration of the facts and circumstances of the case, a perusal of papers on record and orders of the lower authorities below, as well as case law cited, we hold as follows.
5.The reasons recorded for reopening of the case are restricted for ready reference: “Information was received from DDIT(Inv), Unit-2(1), Kolkata where it is mentioned that a search and seizure operation under section 132 of the I.T. Act, 1961 was conducted on Kolkata based City Life Group of companies on 19.11.2015. During the course of post search investigation, it has been found that some of the group companies of this group have raised bogus share capital during the F.Y. 2008-09. The company M/s Basanti Hosiery Pvt. Ltd. (PAN-AADCB3168J), jurisdiction of which lies with this charge, had allotted in all 118000 shares at a premium of Rs. 90/- to some jamakharchi companies on 03.11.2008 and 31.13.2008. Summons was issued u/s 131 of the I.T. Act, 1961 to all the Principal Officers of the allottee companies which returned unserved. On further verification no physical existence of any of the allottee companies was found at the given address. I have gone through the records / documents of the assessee available with me for the F.Y. 2008-09 in light of the above information. It is found that certain income has escaped assessment which is to be brought to tax after through verification and investigation. In the circumstances, I have reason to believe that the assessee company had raised bogus share capital of Rs. 1, 18,00,000/- during the assessment year 2009-
5 ITA No.2147/Kol/2017& C.O. No.98/Kol/2018 M/s Basanti Hosiery Pvt. Ltd. A.Yr.2009-10 10 and that the income has escaped assessment for the F.Y. 2008-09. I consider this a fit case for invocation of provision of section 147 of the I.T. Act, 1961.”
The ld. CIT(A) held that reopening is bad in law for the following two reasons: a) That the proviso to section 147 comes into operation and as the assessing officer has not alleged that the assessee has failed to disclose truly and fully all the material facts required for assessment and as the reassessment was taken up beyond the period of 4 years, the assessment is bad in law . b) That there is non-application of mind by the assessing officer to the information received by him from DDIT(Inv), Unit-2(1), Kolkata, prior to his formation of a reason to believe that income subject to tax has escaped assessment.
6.The ld. Senior Advocates Shri R.P. Agarwal was fair enough to point out that, as original assessment was not made u/s 143(3) of the Act, the proviso to section 147 of the Act does not apply. Hence these submissions of the ld. DR that the ld. CIT(A) has committed an error in holding that first proviso to section 147 of the Act would apply in this case is upheld. The ld. CIT(A) was wrong on this count and his order is reversed on this issue.
Coming to the issue as to whether there was no application of mind by the AO to the information received by the assessing officer from DDIT(Inv), Unit-2(1), Kolkata, we find from the reasons recorded that the ld. AO has on receipt of the information, had issued summons u/s 131 of the Act to all Principal Officer and allottee companies. He further conducted verification as to physical existence of the allottee companies at their given address. After going through the records and documents, he formed an opinion that he has reason to believe that income subject to tax had escaped assessment. In our view he recorded reasons after application of mind to the material. Thereafter he issued a notice to reopen the assessment u/s 147 of the act. We find no infirmity in the reopening of assessment by the assessing officer. In our view the ld. CIT(A) was wrong 5
6 ITA No.2147/Kol/2017& C.O. No.98/Kol/2018 M/s Basanti Hosiery Pvt. Ltd. A.Yr.2009-10 on facts in holding that the AO has not applied his mind to the information received from DDIT(Inv), Kolkata.
Coming to the arguments of ld. Senior Advocate Shri R.P. Agarwal, we are not convinced that the reasons recorded for reopening are vague. Mr. Agarwal pointed out that terminology used is ‘certain income’ and hence the same is vague. We do not think so. At the time of recording of reasons for reopening of assessment, the assessing officer has to form a prima facie opinion the income subject to tax has escaped assessment. At the time of recording reasons for reopening, it is well settled that the assessing officer need not to prove with evidence that income had in fact escaped assessment. In this case he has specifically stated that the assessee has raised bogus share capital of Rs. 1,80,00,000/- during F.Y. 2009-10 and he believes that the income may have escaped assessment. The second argument of Mr. Agarwal is that reopening has been done for verification and investigation and hence bad in law, as reopening cannot be made for conducting roving enquiries as held by Hon’ble Calcutta High Court in the case of ITO vs. Electrosteel Castings reported in [2003] 264 ITR 410 (Cal) page 427 and the Hon’ble Karnataka High Court in the case of M. Mahadeva vs. CIT reported in 404 ITR 747 (Kar)at page 751 paragraph nos. 12 and 13. In our view this is not the case of the assessing officer involving in roving and fishing enquiries. The case law cited do not apply to the facts of this case. Mr. Agarwal has objected to the use of the word “some” of the group companies and “some” of the jamakharchi companies and submitted that the reasons are vague. On a query from the Bench he agreed that the assessee company is a group company of “City Life Group” of companies. So the use of the terms ‘some group companies’ or ‘some jamakharchi companies’, cannot be held to be vague and thus fatal to it reopening of the assessment. The reasons recorded for reopening assessment cannot be interpreted or read like, reading of a Statute.
7 ITA No.2147/Kol/2017& C.O. No.98/Kol/2018 M/s Basanti Hosiery Pvt. Ltd. A.Yr.2009-10 9. Hence in view of the above discussion, we are of the considered opinion that the ld. CIT(A)’s order is bad in law and has to be reversed. Hence, we uphold the contention of the ld. DR Shri C.J. Singh and reverse the order of ld. CIT(A) on the issue of reopening. Accordingly this revenue’s appeal is allowed.
Coming to the cross objection, we find that the ld. CIT(A) has not disposed off the case on merits. Hence we set aside the grounds challenging the merits of the addition to the file of the ld. CIT(A) for fresh adjudication in accordance with law. The ld. CIT(A) is directed to give adequate opportunity to the assessee and pass a speaking order.
In the result, the appeal of the revenue is allowed and the cross objection of the assessee is allowed for statistical purposes.
Order pronounced in the Court on 28 .11.2018
Sd/- Sd/- [S.S.Viswanethra Ravi] [ J.Sudhakar Reddy] Judicial Member Accountant Member
Dated : 28.11.2018 SB, Sr. PS Copy of the order forwarded to: 1. DCIT, Central Circle-2(1), Kolkata, Aayakar Bhawan Poorva, 3rd Floor, E.M. Bye Pass, 110, Shantipally, Kolkata-700107. 2. M/s Basanti Hosiery Pvt. Ltd., 154, M.G. Road, 1st Floor, Kolkata-700007. 3..C.I.T.(A)- , Kolkata 4. C.I.T.- Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.