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Before: Shri S.S Vishwanethra Ravi, and
SHRI S.S VISHWANETHRA RAVI, JM
These appeals of the asessee arise out of the separate orders of the Learned CIT(A)-XVI, Kolkata in Appeal No. 92 & 91/CIT(A)-XVI/10-11 dated 08-02-2013 for the assessment years. 2005-06 & 2006-07 against the orders of the ld.AO passed u/s. 254/251/143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’).
Brief facts of the case are that the assessments for the A.Y’s 2005-06 & 2006-07 were framed by the ld. AO u/s. 144 of the Act. On challenging, CIT(A) and Tribunal confirmed the action of the AO. The assessee preferred an appeal before the Hon’ble Calcutta High Court and The Hon’ble High Court was pleased to set aside the order dated 25-06-2010 passed by the Tribunal and remanded to the AO to frame fresh assessment in accordance with law u/s. 144 of the Act. As matter stood thus, the AO levied the interest u/s. 234B and 220(2) of the Act and imposed penalties under section 271(1) (c) of the Act and the same was confirmed by the CIT(A) by his order
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as stated above. Aggrieved by which, the present appeals were filed by the assessee before this Tribunal for consideration.
During the course of arguments the ld. Counsel for the assessee submitted that the original assessments u/s. 144 of the Act was remanded to the AO in pursuant to the direction of the Hon’ble High Court of Calcutta and no steps were initiated by the AO and yet to frame the assessment in pursuant to the direction of the Hon’ble High Court. Therefore, the present appeals does not fall for consideration in view of the direction of the Hon’ble High Court. The ld. DR did not produce any view contrary to the submissions made by the Ld.AR. Therefore, the fact of the case that remains undisputed as far as the submissions of the both parties that the AO did not initiate any proceedings in accordance with the directions of Hon’ble High Court of Calcutta.
At the outset, we observe that the assessment order passed by the AO for the A.Y 2005-06 & 2006-07 has been remanded back to AO by the Hon’ble High Court of Calcutta vide its order dt:29-04-2015 in ITAT No. 253/2010 for making assessment. The relevant portion of observation of Hon’ble High Court is reproduced herein below:-
“Therefore, the question .which arises for consideration is, whether· it was open to the assessing officer to make the assessment under section 144, otherwise than, on the basis of all relevant materials which the assessing officer had gathered after giving an. opportunity to. the assessee? Mr.Agarwal, learned advocate for the respondent/ revenue submitted that the order passed by the assessing officer and-the subsequent affirmation thereof by the err (Appeal) and the Tribunal need not be disturbed because the order is really one passed under section 143(3) of the I.T.Act and the reference to-section 144 'is nothing more than a mistake. He added that even' under section. 144 it was open to the assessing officer to make disallowances. We have not been impressed by the submission advanced by Mr.Agarwal. A wrong judgement and a judgement containing a mistake do not share same pedestal. A judgement containing a mistake may not necessarily render the judgement wrong but a wrong judgement is wrong by all means. We already have quoted the
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relevant part of the order passed by the assessing officer from which it clearly appears that the assessing officer first exercised his power under section 145 and thereafter, he proceeded to exercise power under section 144. Therefore, it is not possible to accept the submission that the assessing officer really. made the assessment under section' 143(3) and by mistake he recorded to have passed the same under section 144.
The submission that in an' assessment under section 144 the assessing officer can make disallowances may be correct in the backdrop that the assessee may raise contentions disputing the materials collected by the assessing officer. and allowances claimed in the defence to be taken by the assessee the assessing officer may have occasion to make disallowances, He has exercised power under section 145 because the books of, accounts are not believable because the books of accounts according to him are neither correct, nor complete. If the assessing officer in such ."a case wishes to make an assessment. under section 144, he has to make such assessment only in accordance with section 144. An assessing officer is a creature of the statute. He can exercise power either in accordance with the statute or not at all. If any authority is needed reference may be made to the judgement in the case of Bhavnagar University v. Palitana Sugar Mill (p) Ltd reported in 2003(2)SCC 111 wherein the following views were expressed. “The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.” For the aforesaid reasons, the question formulated above is answered in favour of the assessee. The order under challenge including the assessment order and the order passed by the CIT are all set aside and the matter is remanded to the assessing officer to make the assessment in accordance with law under section 144.”
Since the original assessment made by the AO under Section 144 of Act was set aside by the Hon’ble High Court supra and levying the interest u/s. 234B and 220(2) of the Act and imposing penalties under section 271(1) (c) of the Act basing on the assessments having no force in the eye of law and is against the established principles of law, therefore, in our view, the grounds
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raised by the assessee have become infructuous to adjudicate. Thus appelas are liable to be allowed as indicated above.
In the result, the appeals of assessee are allowed.
THIS ORDER IS PRONOUNCED IN OPEN COURT ON 29 /04/2016
Sd/- Sd/- ( Waseem Ahmed, Accountant Member ) ( S.S Vishwanethra, Ravi, Judicial Member)
Date 29 /04/2016
Copy of the order forwarded to: 1.. The Appellant/Assessee : Shri Triyogi Narayan Singh 98 Garden Reach Road, kol-23. 2 The Respondent/Department- The Income Tax Officer, Ward 28(2), Dakshinapan, 2 Gariahat Road South, Kol-68. 3 /The CIT,
/The CIT(A) 4.. 5. DR, Kolkata Bench 6. Guard file. True Copy, By order, Asstt Registrar
** PRADIP SPS
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