Income Tax Appellate Tribunal - Kolkata
Acit, C.C. - 3(2), Kolkata vs Sri Bijay Kumar Agarwal , Kolkata on 21 February, 2020
आयकर अपील य अधीकरण, यायपीठ - "ए" कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA BENCH "A" KOLKATA
Before Shri S.S.Godara, Judicial Member and
Dr. A.L. Saini, Accountant Member
ITA No.1942/Kol/2018
Assessment Year :2005-06
ACIT, Central Circle-3(2), V/s. Sri Bijay Kumar Agarwal,
Aayakar Bhawan, Poorva, 41, Anandjyoti, N.S.
5 t h Floor, 110, Santipally, Road, Room No. 404, 4 t h
Kolkata-700 107 Floor, Kolkata-700 001
[P AN No. ACVP A 6291 J]
अपीलाथ /Appellant .. यथ /Respondent
अपीलाथ क ओर से/By Appellant Shri Dhrubajyoti Ray, JCIT-DR
यथ क ओर से/By Respondent Shri S. Jhajharia, FCA
सन
ु वाई क तार ख/Date of Hearing 29-01-2020
घोषणा क तार ख/Date of Pronouncement 21-02-2020
आदे श /O R D E R
PER S.S.Godara, Judicial Member:-
This Revenue's appeal for assessment year 2005-06 arises against the Commissioner of Income Tax (Appeals)-7, Kolkata's order dated 21.06.2018 passed in case No.244/CIT(A)-7/Kol/Circle-27/16-17, involving proceedings u/s 147 r.w.s. 143(3) of the Income Tax Act, 1961; in short 'the Act'.
2. The Revenue raises the following sole substantive ground of appeal:-
"1. That on the facts and circumstances of the case, whether the Ld. CIT(A) was justified in deleting the addition of Rs.7,23,97,500/- without appreciating the content of the seized documents marked AK/PDP/16 specially when the assessee acknowledged all entries in the said documents relating to payments / receipts by cheque but pleaded ignorance in respect of cash transactions embedded between the transactions in cheque."ITA No.1942/Kol/2018 A.Y. 2005-06
ACIT,CC-3(2), Kol Vs. Sh. Bijay Kr.Agarwal Page 2
3. It transpires during the course of hearing is that the CIT(A)'s order under challenge had not only reversed the Assessing Officer's action adding the amount in dispute of ₹7,23,97,500/- but also he has quashed sec. 148 / 147 proceedings as not valid vide his following detailed discussion:-
"Decision:
The appellant has challenged the validity of the proceedings u/s. 147 and on a perusal of the documents as available on record and the submission of the appellant as well as the reasons recorded, it appears that the AO has initiated such proceedings u/s. 147 on the basis of the survey conducted in the case of M/s Salarpuria Properties Pvt. Ltd., wherein the assessee is a Managing Director. On going through the reasons recorded it was observed that the AO contends that payment of rs.10,18,97,500/- has been paid in cash to different parties and further mention that "circumstantial evidences" suggest that the payment was made by the assessee. Hence, the reopening u//s 147 by issuing of notice u/s. 148. The ape on its part has objected to the reasons so recorded for reopening and as such validity of notice issued u/s.148 and also contents that since the reopening is beyond 4 years and there being no failure on the part of the assessee to disclose any information, the reopening proceedings fails. The appellant on its part has also contended that there being no "reason to believe" nor "there being any tangible material" for reopening of the assessment as evident from the reasons recorded, the reopening proceedings fails.
Having considered the appellant's submissions and the AO's order and the material so available on record, I find that the matter needs detailed deliberation. Having gone through the order, I find that the AO in the order refers to such operation carried on at the premises to one Sri P. Dayanand Pai on 12.4.2011 at Bangalore and one such premises was of Mrs. Adlene Kagoo (employee of P. Dayanand Pai) wherefrom various incriminating documents detailing unaccounted transactions between such Mr. P. Dayanand Pai and various other parties were made. This particular documents were marked as AK-PDP-16 relating to transaction between Mr. P.Dayanand Pai and Salarpuria Group. Mrs. Adlene Kagoo had confirmed in her statement that she had recorded such transactions on the instructions of Mr. P. Dayanand Pai. The AO in the order has also enclosed copy of such documents marked as AK-PDP-16 from pages 187 to 207 which showed the detailed transactions carried between Mr. P. Dayanand Pai and Salarpuria Group (which is also attached as part of annexure to order u/s.147 by AO). In the order, the AO proceedings u/s 147 were initiated. However, the same does not tally with the "reasons recorded" once the same nowhere mentions about such document and it merely mention the survey being conducted and it does refer to the search o Nr. P. Dayanand Pai and other consequential event that is such recorded statement etc. Even if it is assumed that the transactions pertains to or belongings to the appellant, the reasons recorded do not support the same and since the reasons recorded itself on the basis of reopening which speak otherwise, hence the entire proceeding i.e. issue of notice u/s. 148 and the consequential proceedings becomes void and for the same I draw support from the following Courts' decisions:
i) Pransukhlal Brothers 229 Taxmann 444 (Bom)
ii) Munshi Mini Rice Mill v. ITO - ITA No.1650/Kol/2014 dt. 14.10.2014
iii) Northern Exim (P) Ltd. 337 ITR 586 (Del)
ITA No.1942/Kol/2018 A.Y. 2005-06
ACIT,CC-3(2), Kol Vs. Sh. Bijay Kr.Agarwal Page 3
It is also observed that the AO in the reasons recorded has nowhere mentioned that there is "failure on the part of the assessee to disclose any information" and hence there reopening fails. Here I draw support from following Courts' decisions:-
a) Harikishanlala Sunderlal Virmani - 394 ITR 146 (Guj)
b) Swarovski India (P) Ltd - 36 ITR 601 (Del)
c) Global Signal Cables (I) (P) Ltd. - 368 ITR 609 (Del) Hence, the proceedings so initiated by the AO by issuing of notice u/s. 148 and the consequential order u/s. 147 cannot be upheld and hence there grounds of the appellant are allowed."
4. Learned departmental representative fails to dispute that the Revenue has nowhere challenged the CIT(A)'s action quashing the impugned re- opening / re-assessment in its pleadings nor is there any plea before us seeking to amend its substantive grounds raised in the instant appeal. We conclude in these facts and circumstances that the CIT(A)'s above extracted lower appellate discussion quashing the re-opening / re-assessment attain finality and render the Revenue's pleadings on merits as infructuous. Ordered accordingly.
5. This Revenue's appeal is dismissed.
Order pronounced in the open court 21/02/2020
Sd/- Sd/-
(लेखा सद&य) ( या(यक सद&य)
( A.L.Saini) (S.S.Godara)
(Accountant Member) (Judicial Member)
Kolkata,
*Dkp Sr.P.S
)दनांकः- 21/02/2020 कोलकाता ।
आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
th
1. अपीलाथ /Appellant-ACIT,C.C-3(2), Aayakar Bhawan, Poorva, 5 Fl. 110, Shantipally, Kolkata-107 th
2. यथ /Respondent-Sri Bijay Kr. Agarwal, 41, Anand Jyoti, N.S. Rd. R. No.404, 4 Fl. Kolkata-001
3. संबं4धत आयकर आयु5त / Concerned CIT Kolkata
4. आयकर आयु5त- अपील / CIT (A) Kolkata
5. 8वभागीय (त(न4ध, आयकर अपील य अ4धकरण, कोलकाता / DR, ITAT, Kolkata
6. गाड= फाइल / Guard file.
By order/आदे श से, /True Copy/ सहायक पंजीकार आयकर अपील य अ4धकरण, कोलकाता ।