Principal Commissioner Ofincome Tax-2, Kolkata v. M/S. Sambuddha Tracon Pvt. Ltd

ITAT/90/2022IA No.GA/2/2022 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME 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 -And- Date : 15[th] November, 2022. The Court: This appeal filed by the revenue underSection 260A of the Income Tax Act, is directed against theorder dated 14[th] August, 2020 passed by the Income TaxAppellate Tribunal, “B” Bench, Kolkata (the Tribunal) in ITANo.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 committedsubstantial error in law in quashing thereassessment order under Section 147/143(1) ofthe Income Tax Act, 1961 passed by theAssessing officer without disposing of theobjection raised by the appellant, contrary tobinding principle of law laid down in thejudgment of the Hon’ble Supreme Court whereby ithas been stated that non compliance of procedurewould not make an order void or non est ?substantial error in law in quashing thereassessment order under Section 147/143(1) ofthe Income Tax Act, 1961 passed by theAssessing officer without disposing of theobjection raised by the appellant, contrary tobinding principle of law laid down in thejudgment of the Hon’ble Supreme Court whereby ithas been stated that non compliance of procedurewould not make an order void or non est ?(ii)Whether the Learned Tribunal has committedsubstantial error in law laid down by coming tothe finding that satisfaction by the approvingauthority as mandates under Section 151 ofIncome Tax Act, was mechanical and in fact,rubber stamped and thus held that assessment isbad in law for want of recording propersatisfaction under Section 151 of the Income TaxAct, 1961 ?substantial error in law laid down by coming tothe finding that satisfaction by the approvingauthority as mandates under Section 151 ofIncome Tax Act, was mechanical and in fact,rubber stamped and thus held that assessment isbad in law for want of recording propersatisfaction under Section 151 of the Income TaxAct, 1961 ? We have heard Mr. Soumen Bhattacharjee, learnedstanding counsel appearing for the appellant/revenue and Mr. J.P. Khaitan, learned senior counsel assisted by Mr. SoumyaKejriwal, learned Advocate for the respondent/assessee andcarefully perused the materials placed on record. On going through the following paragraphs of the orderpassed by the Tribunal, we find that the learned Tribunal wasfully justified in granting relief to the assessee bydismissing the appeal of the revenue. We have heard Mr. Soumen Bhattacharjee, learnedstanding counsel appearing for the appellant/revenue and Mr. J.P. Khaitan, learned senior counsel assisted by Mr. SoumyaKejriwal, learned Advocate for the respondent/assessee andcarefully perused the materials placed on record. On going through the following paragraphs of the orderpassed by the Tribunal, we find that the learned Tribunal wasfully justified in granting relief to the assessee bydismissing the appeal of the revenue. The relevant paragraphs are paras 14, 15 and 16 whichare set out below :-“14. Both on 17.03.2017 and on 27.03.2017, the AO sendsseparate proposals to the JCIT requesting for approval for re-opening of the assessment. The JCIT, Range-5, Kolkata vide hisletter dated 29.03.2017 rejected the proposals dated 17.03.2017and 28.03.2017 of re-opening of assessment. He also directedthe AO to consider the reply of the assessee. He directed theAO not to send two separate proposals. Vide this letter dated27.03.2017 by the ITO to the PCIT-2 bearing reference No. Ward-5(2)/Kolkata/147/2016-17/2667 speaks of approval by both, theJCIT, Range-5, Kolkata as well as the PCIT-2, Kolkata. Thesediscrepancies could not be explained by the ld. DR.15.Be it as it may it is absolutely clear that the objectionsraised by the assessee to the reasons recorded for re-openingand the re-opening itself vide its letter dated 22.11.2017 and24.11.2017 were not disposed off by the AO. Thus the completionof assessment without disposal of these objections, makes theassessment bad in law as held in the case of Rabo India FinanceLtd. vs. DCIT (2012) 346 ITR 528 (Bombay) and in the case ofVishwanath 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 recordingof satisfaction by the approving authority. In this case the satisfaction was mechanical and in fact a rubber stamp was usedto state “Yes I am satisfied”.The revenue could not and cannot controvert the abovefactual finding recorded by the Tribunal. It is clear from thefinding recorded by the Tribunal that the assessing officerabdicated the statutory responsibility in not disposing of thetwo objections raised by the assessee for the re-openingproceedings. Thus, we find there is no question of law much lesssubstantial question of law arising for consideration in thisappeal. Accordingly, the appeal (ITAT/90/2022) standsdismissed. Consequently, the connected application for stay (IANo.GA/2/2022) also stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s.S.Nath