Calcutta High Court
Income Tax-2 vs M/S. Sambuddha Tracon Pvt. Ltd on 15 November, 2022
O-64
ITAT/90/2022
IA No.GA/2/2022
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income Tax)
ORIGINAL SIDE
PRINCIPAL COMMISSIONER OF
INCOME TAX-2, KOLKATA
-Versus-
M/S. SAMBUDDHA TRACON PVT. LTD.
Appearance:
Mr. Soumen Bhattacharjee, Adv.
...for the appellant.
Mr. J. P. Khaitan, Sr. Adv.
Mr. Soumya Kejriwal, Adv.
Mr. G. S. Gupta, Adv.
...for the respondent.
BEFORE:
The Hon'ble JUSTICE T.S. SIVAGNANAM
-And-
The Hon'ble JUSTICE HIRANMAY BHATTACHARYYA
Date : 15th November, 2022.
The Court: This appeal filed by the revenue under
Section 260A of the Income Tax Act, is directed against the
order dated 14th August, 2020 passed by the Income Tax
Appellate Tribunal, "B" Bench, Kolkata (the Tribunal) in ITA
No.181/Kol/2019 for the assessment year 2010-11.
The revenue has raised the following substantial
questions of law for consideration:
(i) Whether the Learned Tribunal has committed
substantial error in law in quashing the
reassessment order under Section 147/143(1) of
the Income Tax Act, 1961 passed by the
Assessing officer without disposing of the
objection raised by the appellant, contrary to
binding principle of law laid down in the
judgment of the Hon'ble Supreme Court whereby it
has been stated that non compliance of procedure
would not make an order void or non est ?
(ii) Whether the Learned Tribunal has committed
substantial error in law laid down by coming to
the finding that satisfaction by the approving
authority as mandates under Section 151 of
Income Tax Act, was mechanical and in fact,
rubber stamped and thus held that assessment is
bad in law for want of recording proper
satisfaction under Section 151 of the Income Tax
Act, 1961 ?
We have heard Mr. Soumen Bhattacharjee, learned
standing counsel appearing for the appellant/revenue and Mr. J.
P. Khaitan, learned senior counsel assisted by Mr. Soumya
Kejriwal, learned Advocate for the respondent/assessee and
carefully perused the materials placed on record.
On going through the following paragraphs of the order
passed by the Tribunal, we find that the learned Tribunal was
fully justified in granting relief to the assessee by
dismissing the appeal of the revenue.
The relevant paragraphs are paras 14, 15 and 16 which
are set out below :-
"14. Both on 17.03.2017 and on 27.03.2017, the AO sends
separate proposals to the JCIT requesting for approval for re-
opening of the assessment. The JCIT, Range-5, Kolkata vide his
letter dated 29.03.2017 rejected the proposals dated 17.03.2017
and 28.03.2017 of re-opening of assessment. He also directed
the AO to consider the reply of the assessee. He directed the
AO not to send two separate proposals. Vide this letter dated
27.03.2017 by the ITO to the PCIT-2 bearing reference No. Ward-
5(2)/Kolkata/147/2016-17/2667 speaks of approval by both, the
JCIT, Range-5, Kolkata as well as the PCIT-2, Kolkata. These
discrepancies could not be explained by the ld. DR.
15. Be it as it may it is absolutely clear that the objections
raised by the assessee to the reasons recorded for re-opening
and the re-opening itself vide its letter dated 22.11.2017 and
24.11.2017 were not disposed off by the AO. Thus the completion
of assessment without disposal of these objections, makes the
assessment bad in law as held in the case of Rabo India Finance
Ltd. vs. DCIT (2012) 346 ITR 528 (Bombay) and in the case of
Vishwanath Engineers vs. ACIT (2013) 352 ITR 549 (Gujarat).
Thus this finding of the ld. CIT(A) has to be upheld.
16. Even otherwise Section 151 of the Act mandates recording
of satisfaction by the approving authority. In this case the
satisfaction was mechanical and in fact a rubber stamp was used
to state "Yes I am satisfied".
The revenue could not and cannot controvert the above
factual finding recorded by the Tribunal. It is clear from the
finding recorded by the Tribunal that the assessing officer
abdicated the statutory responsibility in not disposing of the
two objections raised by the assessee for the re-opening
proceedings.
Thus, we find there is no question of law much less
substantial question of law arising for consideration in this
appeal.
Accordingly, the appeal (ITAT/90/2022) stands
dismissed.
Consequently, the connected application for stay (IA
No.GA/2/2022) also stands dismissed.
(T.S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
A/s.S.Nath
