The Assitant Commissioner Ofincome Tax Non-Corporate Circle-1 Room v. Https://Hcservices.ecourts.gov.in/Hcservices

The Assitant Commissioner ofIncome Tax Non-Corporate Circle-1 Room No.309 3rd Floor Wanaparthy Block 121 Mahatma Gandhi Road Ch-34....Appellant Vs Appeal filed to set aside the order of the judge inWP.No.12801/2016 dt.02/06/2017 WP.No.12801 of 2016:Writ Petition filed under Article 226 of theConstitution of India praying for the issuance of Writ ofCertiorari, or any other appropriate Writ or order or directionin the nature o writ, Calling for the records of the respondentdated 02.03.2016 relating to the Assessment year 2008-09 inPAN : AAPPK2572G/2008-09 and quash the same. This intra court appeal has been preferred by the Revenueagainst the order of the learned Single Judge dated 2 June 2017by which, the learned Single Judge allowed the Writ Petition inW.P.No.12801 of 2016 filed by the Assessee Mr.Kutubuddin againstthe Assistant Commissioner of Income Tax, and quashed thereassessment proceedings for the Assessment Year 2008-09 in thecase of the Assessee, despite the objection raised by theRevenue before the learned Single Judge that against theimpugned reassessment order, dated 2 March 2016, a remedy by wayof appeal was available for the Assessee. 1/7 https://hcservices.ecourts.gov.in/hcservices/ 2/7 which vested upon him the power to reassessthe income and not "review" the subjecttransaction. (See Commissioner of IncomeTax V. Kelvinator of India Limited, (2002)256 ITR 1 (Delhi FB), and also Commissionerof Income Tax V. Kelvinator of India Ltd.,(2010) 320 ITR 561 (SC). 14.5. Ms.Muralikrishnan's submissionthat, since, there was no discussion qua thesale of the Kovalam property, in theassessment order dated 30.11.2010, therespondent, therefore, was not barred fromreexamining the subject transaction, eventhough, the information with regard to thesame, was available to him - in my view, isuntenable proposition, in the given factsand circumstances. The record shows thatquery was raised, pursuant to which,information was supplied by the petitioner;a circumstance, which is, suggestive of thefact that an enquiry was made with regard tothe subject transaction. 3. The learned Counsel for the Revenue Ms.HemaMuralikrishnan, produced the original assessment record of 143(3) proceedings before us, as directed by the Court andsubmitted that the letter dated 9 November 2010 of the Assesseealleged to have been personally handed over to the AssessingAuthority disclosing the note of sale of Kovalam property viz.,the agricultural land, measuring 1.59 acres at Kovalam Village,was actually never furnished to the Assessing Authority and theorder sheet entries would show that the very proceedings hadconcluded on 1 November 2010 and had been adjourned to 9November 2010, on which date, there was no separate order sheetdrawn or any further communication taken from the Assessee andtherefore, in the absence of any discussion on the sale of theagricultural land at Kovalam by the Assessee, one of the reasonsfor re-assessment proceedings undertaken by the AssessingAuthority was to bring to tax the capital gains on suchagricultural land by the Assessee. The learned Single Judge, shesubmitted that, has wrongly relied upon the said letter dated 9November 2010, as the disclosure on the part of the Assessee, tohold that the re-assessment proceedings were based on a changeof opinion on the part of the Assessing Authority, which is notpermitted under Section 147/148 of the Act. 4. Accordingly, we had summoned the original records fromthe Department and the learned Counsel for the Revenue producedthe same. The said letter dated 9 November 2010 prima facieappears to have been filed only as annexure 2(a) of the Replyto the notice under Section 147/148 of the Act with the detailedobjections filed by the Assessee on the letter head of hisAuthorized Representative – Chartered Accountant M/s.Nizar &Kumar. Separately, we do not find the said letter dated 9November 2010 previously filed by the Assessee on the record ofthe Revenue. The order sheet of the Assessing Authority at thetime of the original assessment under Section 143(3) of the Actto the relevant extent commencing from 6 September 2010 to 30November 2010, are also quoted below for ready reference :-Shri A.P.Kumar, FCA appeared. Case discussed.Required to file (i) Property details along with documents;(ii) Rental agreement if any;(iii) Copy of LIP paid receipt;(iv) Copies of P & C/Balance sheet of M/s.London Stores of which the assessee is a partner.To file by 15/9/x.Sd/-Sd/-A.R.Assessing Officer --------------------------------------------------------------------------------A's and AR Shri A.P.Kumar, FCA appeared. Casediscussed. Details filed. Adjourned to 9.11.2010 @4.oo p.m.Sd/-Sd/-A.R.Assessing Officer --------------------------------------------------------------------------------DNO/s under Section 154 -Rs.87,797/-. Casediscussed. A.O. Dictated.Sd/-C.No.10/P-4/2010-11A.R.AO and OA n/p 156 prepared and put up.Sd/-Sd/-A.R.Assessing Officer 5. From the aforesaid order sheets of proceedings ofOriginal Assessment under Section 143(3) quoted, we find thateven though the case was adjourned after the last appearance ofthe Authorized Representative on 1 November 2010, and the casewas discussed with him, and details were also filed as requiredin the previous order dated 6 September 2010, the matter wasadjourned to 9 November 2010 at 4 p.m. by the AssessingAuthority, but no separate proceedings are drawn on 9 November 4/7 https://hcservices.ecourts.gov.in/hcservices/ 2010. Had the said letter dated 9 November 2010 been filed bythe Assessee on 9 November 2010, the same would have been takenon record by a Member in the said order sheet of 9 November 2010and the said letter dated 9 November 2010 in original, wouldhave been found in the assessment record produced before us, butit is not there. 6. The copy of the said communication dated 9 November 2010now produced with the Affidavit by Chartered AccountantMr.A.P.Kumar dated 19 January 2020 also bears an endorsement byChartered Accountant, “handed over in person” on 9 November2010. But such an endorsement is not found in the copy of thisletter filed with the original typed set filed by theRespondent/ Revenue Department. 7. Prima facie therefore, without expressing our any opinionon the same, we are not inclined to rely on the said letterdated 9 November 2010, to be available on the record of theAssessing Authority on 9 November 2010 itself. It may be amatter of enquiry and investigation which, we, for obviousreasons, in the extraordinary jurisdiction, cannot undertakehere in the writ appeal. 8. Though the learned Counsel for the Assessee has alsobrought to our notice the computation of income of the son ofthe Assessee, who is also 1/3[rd] shareholder in the said land inKovalam village, in whose Statement of Computation of Incomefiled with the Return of Income, a Note is shown about theKovalam property, but unfortunately, the copy of the Computationof Income, filed by the present Assessee Mr.Kutubbudin (father)is not available on the records. The said Note quoted in theAssessee's son's Computation is extracted below for readyreference :- 8. Though the learned Counsel for the Assessee has alsobrought to our notice the computation of income of the son ofthe Assessee, who is also 1/3[rd] shareholder in the said land inKovalam village, in whose Statement of Computation of Incomefiled with the Return of Income, a Note is shown about theKovalam property, but unfortunately, the copy of the Computationof Income, filed by the present Assessee Mr.Kutubbudin (father)is not available on the records. The said Note quoted in theAssessee's son's Computation is extracted below for readyreference :- 4. Long Term gain on sale ofagricultural land situated at KovalamVillage, Tiruporur Taluk, 1/3[rd] share ofRs.3445000/- (jointly held with fatherS.M.Kutubuddin & brother K.Md.Baleegh) notconsidered as income. As that does not fallunder the purview of capital asset. 9. In such circumstances, we, consciously, refuse to expressany opinion on the validity of the contentions raised by thelearned Counsel for the Assessee based on the said communicationdated 9 November 2010 said to have been filed by the Assesseeduring the contemporary period before the Assessing Authority,during the proceedings under Section 143(3) of the Act, on whichthe entire case of the Assessee for challenging the impugned 5/7 https://hcservices.ecourts.gov.in/hcservices/ reassessment proceedings on the ground of 'change of opinion' isbased. 10. In these circumstances, we feel that the learned SingleJudge ought to have upheld the objection of the Revenue andrelegated the Assessee to the regular Appellate remedy availableto the Assessee against the impugned Reassessment Order underSection 147/148 of the Act for the Assessment year 2008-09. 11. The learned Counsel for the Assessee Mr.N.Muralikumaranalso fairly submitted before us that even at this stage, theAssessee may be allowed to avail his remedy by way of appealbefore the First Appellate Authority viz., CIT (Appeals), towhich the learned Counsel for Revenue Ms.Hema Muralikrishnanalso does not have a serious objection. 12. We are inclined to accept the said submission of thelearned Counsel for the Assessee and the Revenue, accordingly,we allow the present appeal of the Revenue and set aside theorder passed by the learned Single Judge and we direct that, ifthe Assessee prefers a regular appeal before the learned CIT(Appeals) for the Assessment year 2008-09 against the impugnedre-assessment order dated 2 March 2016 for the Assessment year2008-09, within a period of four weeks from today, then, withoutraising any objection with regard to the limitation, the learnedCIT (Appeals) may entertain the said appeal, and decide the sameon merits and in accordance with law, subject to fulfillment ofother conditions, as may be imposed by it. 13. We make it clear that the appeals of the Assessee may bedecided independently, uninfluenced by any of the observationsmade by the learned Single Judge in the order impugned before us. 14. With these observations, the writ appeal filed byRevenue is disposed of. No costs. tar https://hcservices.ecourts.gov.in/hcservices/ To The Assitant Commissioner of Income Tax Non-Corporate Circle-1 Room No. 309 3rd Floor Wanaparthy Block 121 Mahatma Gandhi Road Ch-34 +1 cc to Mr.Hema Muralikrishnan Advocate sr5689 +1 cc to Mcgan Law firm sr5655 W.A.No.1212 of 2017 rsv(co)aa27/02/2020 7/7