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Income Tax Appellate Tribunal - Kolkata

M/S. Gdm Associates, Purba Medinipur vs Ito, Ward 27(2), Haldia, Purba ... on 26 December, 2018

आयकर अपील य अधीकरण, यायपीठ - "B" कोलकाता, IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH "B" KOLKATA Before Shri S.S.Godara, Judicial Member and Shri, M. Balaganesh, Accountant Member ITA No.592/Kol/2017 Assessment Year :2009-10 M/s GDM Associates V/s. Income Tax Officer Sonamui, W ard-27(2), Haldia Ramnagar,Kalindi, Dist. Talpukur, hajanchak, Purba Medinipur-721461 Purba Midnapore-

          [P AN No. AAIFG 9805 F]            721461

              अपीलाथ /Appellant          ..            यथ /Respondent



     अपीलाथ क ओर से/By Appellant              Shri Soumitra Choudhury, Advocate
       यथ क ओर से/By Respondent               ShriRobin Choudhury, Addl. CIT-SR-DR
     सन
      ु वाई क तार ख/Date of Hearing           05-12-2018
     घोषणा क तार ख/Date of Pronouncement      26-12-2018



                                   आदे श /O R D E R
PER M.Balaganesh Accountant Member:-

This assessee's appeal for assessment year 2009-10 arises against the Commissioner of Income Tax (Appeals)-7, Kolkata's order dated 06.05.2016 passed in case No.601/CIT(A)-7/Wd.27(2)/14-15 involving proceedings u/s 143(3)/r.w.s. 147 of the Income Tax Act, 1961; in short 'the Act'.

Heard both the parties. Case file perused.

2. The assessee pleads two substantive grounds in its instant appeal. Its former grievance challenges validity of the re-opening / re-assessment as upheld in the course of lower appellate proceedings. It thereafter avers that ITA No.592/Kol/20-17 A.Y. 2009-10 M/s GDM Associates vs. ITO Wd-27(2) Haldia Page 2 the Assessing Officer as well as CIT(A) have erred in law as well as on facts in making estimated cost of construction addition of ₹63,08,735/- as unexplained investment.

3. We come to former legal issue first of all. There is no dispute about the Assessing Officer having completed the regular assessment in issue on 03.12.2011. Relevant assessment order to this effect reads that the assessee had filed all relevant bills, vouchers and documents for verification of its expenditures items. The Assessing Officer thereafter formed reasons to believe that assessee's income liable to be taxed had escaped assessment. There is no dispute that it was the DVO's report alleging some difference in cost of construction which set the impugned re-opening in motion. The Assessing Officer thereafter issued sec. 148 notice dated 29.08.2012 and framed the impugned re-assessment on29.03.2014 adding the alleged difference in cost of construction amounting to ₹71,22,750/- as upheld in the course of lower appellate proceedings.

4. Learned counsel representing assessee vehemently contends during the course of hearing that the Assessing Officer has erred in law as well as on facts in re-opening the above regular assessment based on DVO's opinion. The Revenue's case on the other hand is that the said DVO's report had not come during the course of assessment and therefore, the Assessing Officer had rightly initiated re-opening proceedings as per law. We notice in this backdrop of these pleadings that hon'ble apex court's decision in ACIT vs. Dhariya Construction Co. (2011) 197 Taxman 202 (SC) has settled the law that a DVO's report per se is not an information for the purpose of re-opening an assessment u/s 147 r.w.s. 148 of the Act. Their lordships concluded that an Assessing Officer has to necessarily apply his mind on such an information collected finally culminating in the belief of escapement of taxable income from being assessed. No such material emerges from the case file indicating the Assessing Officer to have formed his belief on the DVO's report in issue.

M/s GDM Associates vs. ITO Wd-27(2) Haldia Page 3 We therefore draw strong support from hon'ble apex court's above stated decision to hold that the impugned re-opening in the instant case is not sustainable in the eyes of law. The same is accordingly quashed. The assessee succeeds in its former legal ground. Its latter grievance on merit is rendered infructuous.

5. This assessee's appeal is allowed.

       Order pronounced in the open court           26/12/2018

        Sd/-                                                         Sd/-
  ( या$यक सद&य)                                                    (लेखा सद&य)
(S.S.Godara)                                                   (M.Balaganesh)
(Judicial Member)                                           (Accountant Member)
Kolkata,
*Dkp, Sr.P.S
(दनांकः- 26/12/2018          कोलकाता ।
आदे श क      त ल प अ े षत / Copy of Order Forwarded to:-

1. अपीलाथ /Appellant-M/s GDM Associates, Sonamui, Ramnagar, Kalndi, Dist. Purba Medinipur-721461

2. यथ /Respondent-ITO Ward-27(2) Haldia, Talpukur, Khajanchak, Purba Midnapore 721602

3. संब3ं धत आयकर आय4 ु त / Concerned CIT Kolkata

4. आयकर आय4 ु त- अपील / CIT (A) Kolkata

5. 7वभागीय $त$न3ध, आयकर अपील य अ3धकरण, कोलकाता / DR, ITAT, Kolkata

6. गाड< फाइल / Guard file.

By order/आदे श से, /True Copy/ उप/सहायक पंजीकार आयकर अपील य अ3धकरण, कोलकाता ।