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Income Tax Appellate Tribunal, “B” BENCH: KOLKATA
Before: Shri A. T. Varkey, JM & Dr. A. L. Saini, AM]
ORDER Per Shri A.T.Varkey, JM All these appeals preferred by the assessee are against the separate orders of the Ld. CIT(A) – 14, Kolkata dated 30.12.2016 for assessment years 2009-10 to 2013-14 respectively. Though the assessee has preferred these five appeals, it was brought to our notice that the assessee is only interested in pursuing the appeal for AY 2009-10 i.e. therefore, other appeals for AYs 2010-11 to 2013-14 stands dismissed as not pressed.
Coming to for AY 2009-10, which is against the order of Ld. CIT(A) dated 30.12.2016 for AY 2009-10 (wrongly stated in the body of the impugned order as AY 2014-15).
At the outset, the Ld. AR brought to our notice the fact that in this case for AY 2009-10 regular assessment u/s. 143(3) Income-tax Act, 1961 (hereinafter referred to as the ‘Act’) was framed by the AO u/s. 143(3) of the Act on 23.12.2011 which was challenged by the assessee by filing an appeal before the Ld. CIT(A) on 30.01.2012 wherein the following grounds of appeal have been raised: “1. That Ld. AO has passed the order in complete disregards of the records available before him which is against the law of equity and natural justice.
2. That the AO, despite clearly admitting the facts of the case stating "since no discrepancy found on verification of the books of accounts and the bills and vouchers so the return loss shown by the assessee 2 to 533/Kol/2017 Bantra Cop. Bank Ltd., AYs 2009-10 to 2013-14 for the A.Y.-2009-10 is accepted" yet made the disallowances which are baseless and contrary to the rule of law.
3. The deductions claimed in the return under the head provisions and contingencies are the statutory provisions and are in accordance with law. Hence the question of such disallowance does not arise.
4. The total disallowance of Rs.3,86,26,973.09 as set out below is bad in the eyes of law and the same may kindly be struck down; i) Provision for Gr. Gratuity Fund Investment with LIC Rs. 40,84,935.64 ii) Provision for Non-Bank Asts. Aqed. In Satis. Of Claim Rs. 33,184.47 iii) Provision for Overdraft Admitted Rs. 40,00,000.00 iv) Provision for PSU Bond Rs. 10,00,000.00 v) Provision for Differences with GL & PL (2008-09) Rs.2,79,94,009.98 vi) On realization of Govt. Securities Rs. 15,14,843.00 5. The appellant craves leave to add, to alter or modify the ground or grounds of appeal before or during the course of hearing.”
When the aforesaid appeal was pending before the Ld. CIT(A), the AO reopened the assessment and reassessed the assessee on 31.07.2014 u/s. 144/147/143(3) of the Act which in turn was challenged by the assessee before the Ld. CIT(A) on 11.11.2014 which has been disposed of by passing the impugned order by the Ld. CIT(A) vide order dated 30.12.2016. In the aforesaid appeal, the assessee had raised the following grounds of appeal: “1. That Ld. AO has completed the reassessment under section 147 without recourse to the procedure prescribed by law.
2. That the reassessment without service of notice u/s. 143(2) is in violation of the mandate of said section and the principles of natural justice and is therefore a nullity liable to be struck down as such.
3. That the AO erred in adding to total income, the sum of Rs,5,40,000/- being the professional fees by disallowance,
4. That the AO erred in adding to total income, the sum of Rs,19,73,558/- being the excess amount on investment and payment of interest on fixed deposits by disallowance,
5. That the AO erred in adding to total income, the sum of Rs.4,32,000/- on account of Provision from the excess interest on investment,
6. That the AO erred in adding to total income, the sum of Rs.42,58,690/- on account of Provision for reversal of excess interest booked on advances.
7. That the AO erred in adding to total income, the sum of Rs.13,20,475/- on account of Provision for amortization of VRS expenses by disallowances .
8. The appellant craves leave to add, to alter or modify the ground or grounds of appeal Before or during the course of hearing.”
5. It was brought to our notice that in the impugned order the Ld. CIT(A) while disposing of the appeal mixed up the appeals and adjudicated the grounds raised against the order passed by the AO in the regular assessment u/s. 143(3) of the Act framed on 23.12.2011. 2
6. We note that the Ld. CIT(A) while adjudicating the appeal preferred by the assessee against the reassessment order passed against the order of the AO dated 31.07.2014 has adjudicated the appeal arising from the regular assessment order of the AO dated 23.12.2011. The Ld. DR could not controvert this error committed by the Ld. CIT(A) while adjudicating the appeal of the assessee against the AO’s reassessment order dated 31.07.2014. In the light of the aforesaid facts noted above, we are of the considered opinion that this error vitiates the order passed by Ld. CIT(A) while adjudicating the appeal against reassessment order passed by the AO dated 31.07.2014. Therefore, we set aside the impugned order of the Ld. CIT(A) for AY 2009-10 and direct the Ld. CIT(A) to de novo pass separate orders which admittedly arises from the AO’s reassessment order dated 31.07.2014 and the AO’s regular assessment order dated 23.12.2011 by passing separate orders for which separate appeals have been preferred by the assessee. With the aforesaid observation the appeal for AY 2009-10 is allowed for statistical purposes and all other appeals are dismissed.
7. In the result, appeal for AY 2009-10 is allowed for statistical purposes and that of for AYs. 2010-11 to 2013-14 are dismissed. Order is pronounced in the open court on 7th September, 2018 Sd/- Sd/- (Dr. A.L. Saini) (Aby. T. Varkey) Accountant Member Judicial Member Dated :7th September, 2018 JD.(Sr.P.S.) Copy of the order forwarded to: 1. Appellant – The Bantra Cooperative Bank ltd., 10, Narsingh Dutta Road, Howrah-711101 Respondent – DCIT, Circle-48, Kolkata. 2 3. The CIT(A) -14, Kolkata. (sent through e-mail)