Income Tax Appellate Tribunal - Kolkata
Smt. Meena Mehta, Kolkata vs Ito, Ward - 35(4), Kolkata , Kolkata on 23 February, 2018
1 ITA No. 2306/KOL/2017
Assessment Year: 2009-2010
IN THE INCOME TAX APPELLATE TRIBUNAL,
KOLKATA 'SMC' BENCH, KOLKATA
Before Shri P.M. Jagtap, Accountant Member
I.T.A. No. 2306/KOL./2017
Assessment year: 2009-2010
Smt. Meena Mehta,... ..................................................................Appellant
C/o. M/s. Sunny Sale s,
29/1C, Bentinck Street, Kolkata-700 001
[PAN: AESPM 5579 C ]
-Vs.-
Income Tax Officer,.................................................................. Respondent
Ward-35(4 ), Kolkata,
Aayakar Bhawan Po orva, 8 t h Floor,
110, Shanti Pally, Ko lkata-700 107
Appearances by:
Shri Anikesh Banerjee, Advocate, for the assessee
Shri P.K. Mondal, Addl. CIT, D.R., for the Department
Date of concluding th e hearing : February 21, 2018
Date of pronouncing the order : February 23, 2018
O R D E R
This appeal filed by the assessee is directed against the order of ld. Commissioner of Income Tax (Appeals)-10, Kolkata dated 04.08.2017.
2. The relevant facts of the case giving rise to this appeal are that the assessee is an individual, who filed her return of income for the year under consideration originally on 29.07.2009 declaring total income of Rs.3,29,140/-. Although the said return was initially accepted by the Assessing Officer under section 143(1), he subsequently reopened the assessment and after recording the reasons, a notice under section 148 was issued by the Assessing Officer to the assessee on 27.05.2014. In 2 ITA No. 2306/KOL/2017 Assessment Year: 2009-2010 reply, a letter was filed by the assessee requesting the Assessing Officer to treat the return filed by her originally on 29.07.2009 as the return filed in response to the notice under section 148. Thereafter the assessment under section 143(3)/147 was completed by the Assessing Officer vide an order dated 29.02.2016 determining the total income of the assessee at Rs.6,79,140/- after making the addition of Rs.3,50,000/- to the total income of the assessee on account of deemed dividend under section 2(22)(e) of the Act.
3. Against the order passed by the Assessing Officer under section 143(3)/147, an appeal was preferred by the assessee before the ld. CIT(Appeals) challenging the validity of the assessment made by the Assessing Officer under section 143(3)/147 as well as disputing the addition made therein under section 2(22)(e) and since the submissions made by the assessee in support of her case on these two issues were not found acceptable by him, the ld. CIT(Appeals) dismissed the appeal of the assessee. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.
4. In Grounds No. 1 to 7 taken in her appeal, the assessee has raised the preliminary issue relating to the validity of assessment made by the Assessing Officer under section 143(3)/147.
5. I have heard the arguments of both the sides on this preliminary issue and also perused the relevant material available on record. As submitted by the ld. counsel for the assessee, after obtaining copy of the reasons recorded by the Assessing Officer, specific objections were raised by the assessee challenging the validity of reopening of assessment vide letter dated 10.06.2014. He has invited my attention to the copy of the said letter placed at pages no. 9 & 10 of the paper book and submitted that specific objections raised by the assessee in the said letter were neither considered nor disposed of by the Assessing Officer before proceeding to complete the reassessment under section 143(3)/147 of 3 ITA No. 2306/KOL/2017 Assessment Year: 2009-2010 the Act. Relying on the decision of the Division Bench of this Tribunal in the case of Hardware Trading Corporation -vs.- ACIT (ITA No. 1993/KOL/2014 dated 03.11.2017), he has contended that the assessment order passed by the Assessing Officer under section 143(3)/147 without disposing of the objections raised by the assessee challenging the validity of reopening is bad-in-law and the same is liable to be cancelled. It is observed that the facts involved in the case of Hardware Trading Corporation (supra) were materially similar to the facts of the present case, inasmuch as the specific objections raised by the assessee challenging the validity of reopening of assessment after going through the reasons recorded were neither considered nor disposed of by the Assessing Officer by passing a speaking order. By relying on the decision of the Hon'ble Supreme Court in the case of G.K.N. Driveshaft (India) Limited -vs.- CIT [259 ITR 19], the Tribunal held that the reassessment order passed by the Assessing Officer without disposing of the objections raised by the assessee in respect of the validity of reopening was bad-in-law. In the case of G.K.N. Driveshaft (India) Limited (supra), it was held by the Hon'ble Supreme Court that the assessee on receipt of reasons recorded by the Assessing Officer is entitled to file objection to the issue of notice under section 148 and the Assessing Officer is bound to dispose of the said objection by passing a speaking order. Respectfully following the decision of the Hon'ble Supreme Court in the case of G.K.N. Driveshaft (India) Limited (supra) as well as the decision of the Division Bench of this Tribunal in the case of Hardware Trading Corporation (supra), I hold that the assessment made by the Assessing Officer under section 143(3)/147 without disposing of the objections raised by the assessee challenging the validity of reopening was bad-in-law and the same is liable to be cancelled. I order accordingly and decide this preliminary issue in favour of the assessee.
6. Keeping in view the decision rendered above on the preliminary issue cancelling the assessment made by the Assessing Officer under section 143(3)/147, the issues raised by the assessee in Grounds No. 8 & 4 ITA No. 2306/KOL/2017 Assessment Year: 2009-2010 9 challenging the addition made by the Assessing Officer in the said assessment have become infructuous and I do not consider it necessary or expedient to decide the same.
7. In the result, the appeal of the assessee is allowed.
Order pronounced in the open Court on 23 r d day of February, 2018.
SD/-
(P.M. Jagtap)
Accountant Member
Kolkata, the 23 r d day of February, 2018
Copies to : (1) Smt. Meena Mehta,
C/o. M/s. Sunny Sale s,
29/1C, Bentinck Street, Kolkata-700 001
2) Income Tax Officer,
Ward-35(4 ), Kolkata,
Aayakar Bhawan Po orva, 8 t h Floor,
110, Shanti Pally, Ko lkata-700 107
(3) CIT(Appeals)-10, Kolk ata,
(4) CIT- , Kolkat a,
(5) The Depart ment al Represent ative
(6) Guard File
TRUE COPY
By Order
Senior Private Secretary,
Head of Office/DDO,
Income Tax Appellate Tribunal
Kolkata Benches, Kolkata
Laha/Sr. P.S.