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03-04-2019, Satyam Investment Advisory, Section 147, 151, Tribunal Kolkata

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1 week 2 days ago #9100 by amit
Section - 147, 151, 148, 2(28C), 117(1)
Order Date - 03-04-2019
Favouring - Assessee
Court - Tribunal Kolkata
Appellant - Satyam Investment Advisory Pvt. Ltd
Respondent - DCIT
Justice - J. Sudhakar Reddy AM & S.S. Viswanethra Ravi JM
Citation - 419Taxpundit135
Appeal No. - I.T.A. No. 116/Kol/2018
Asstt. Year - 2008-09

Order

PER : J. Sudhakar Reddy

This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals) - 21, Kolkata, (hereinafter the ‘ld. CIT (A)’), passed u/s 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 26/12/2017, for the Assessment Year 2008-09.

2. This case came up for hearing on various dates before this Bench. On 8th July, 2016, the Bench after hearing rival parties at length had passed an interim order dt. 6th August, 2018. At para 2 & 8 of this order, the Tribunal held as follows:-

“2. The ld. Counsel for the assessee, challenged the legal validity of the reopening of the assessment u/s 147 of the Act. He submitted that the original assessment in this case was completed u/s 143(3) r.w.s. 148 on 5th April, 2010 and that this is a second re-opening of assessment.

He argued that this is the second re-opening of assessment and this second re-opening of assessment is bad in law because:

a) Sanction u/s 151 of the Act had to be obtained from the Commissioner of Income Tax, for re-opening of assessment, whereas the sanction in this case, was granted by the Joint/Additional Commissioner of Income Tax.

b) There is no whisper in the reasons recorded for re-opening of the assessment by the Assessing Officer that, there was failure on part of the assessee from truly and fully disclosing all material facts required for assessment.

8. After hearing rival contentions and perusing the documents produced before us, we are of the opinion that the assessee has discharged the initial burden of proof that lay on it, that an re-assessment order was passed on it for the impugned assessment year U/S 143(3) r.w.s 147 of the Act, on 05/04/2010. It is for the revenue to controvert these documents with evidence. As stated by the ld. Counsel for the assessee, the records of the department are in its exclusive possession and control. The assessee cannot be asked to explain the presence or absence of a record or an entry in the record. It is for the revenue to conduct a detailed enquiry on this issue to unearth the truth. It is surprising that no such enquiry has even been contemplated till date despite the graveness of the issue. It is not for the Tribunal to pass orders of enquiry. Not ordering an enquiry into the issue by the revenue administration leading to a conclusion that the contentions of the ld. Assessing Officer in the remand report given to the ld. CIT(A) is without evidence. This enquiry report is very much essential for the Tribunal to adjudicate the matter of validity of reopening of assessment u/s 147 of th Act If no enquiry report is filed by the revenue on this issue before the next date of hearing, the ITAT would have no other alternative but to take adverse inference. The case would be disposed-off based on the original documents produced by the assessee.”

3. The pith and substance of this order is that the allegations made by the revenue that the copy of the assessme t order passed u/s 143(3) r.w.s. 147 of the Act, dt. 05/04/2010 produced in original by the assessee before the Bench, along with the notice of demand issued u/s 156 of the Act dt. 05/04/2010, are forged documents, has to be proved by the revenue by conducting proper enquiry. The entire assessment records and other documents are in the exclusive possession and control of the Income-tax Department The Bench was of the view, that enquiry/investigation should have been conducted by the department on this matter as it is a very grave allegation. Hence the Bench granted time to the ld. D/R to produce evidence in support of his contentions that the original assessment order dt. 05/04/2010 passed u/s 143(3) r.w.s. 147 of the Act and notice u/s 156 of the Act, filed by the assessee are no documents issued by the Income Tax Department. The matter came up before different Benches of the ITAT on 31/10/2018, 27/12/2018 & 16/01/2019. On each of these occasions, the revenue sought time to produce evidence and enquiry report and to support its contentions. The Bench granted time to the revenue for enabling it to produce these documents. Today when the case came up for hearing, the ld. D/R filed a report on the validity of the reopening of assessment u/s 147 of the Act. The then Assessing Officer Mr. Pradip Kr. Biswas, who is presently posted as Joint Commissioner of Income Tax, Range-2, Dhanbad, had given an affidavit stating that, the impugned assessment order in question was passed by him u/s 143(3) r.w.s. 147 of the Act, on 05/04/2010 and was in fact signed by him. Thus, the arguments of the ld. D/R that this assessment order is a forged document etc. is baseless. Hence we have to necessarily reject the same.

3.1. With this background, we have heard the arguments from both sides on the issue of validity of reopening of assessment. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:-

4. The facts of this case are that the assessee has origina ly filed its return of income u/s 139 of the Act, on 15/12/2008. Thereafter the assessment was re-opened u/s 147 of the Act by issual of notice u/s 148 of the Act on 06/01/2010, for the Assessment Year 2008-09. Thereafter the assessment order was passed u/s 147/143(3) of the Act on 05/04/2010, determining the total income of the assessee at Rs.20,440/-. During the course of this re-assessment proceedings, notices were issued by the Assessing Officer to M/s Sanyam Vanijya Pvt. Ltd. and M/s. Swift Software Solutions Pvt. Ltd. dt. 25/01/2010 u/s 133(6) of the Act for furnishing information. Copies of the notices were filed by the assessee. After considering these notices, the Assessing Officer had completed the assessment.

Thereafter notice u/s 148 of the Act was issued on 26/03/2015 reopening the assessment once again u/s 147 of the Act for the Assessment Year 2008-09. In response, the assessee stated that the return filed u/s 139 of the Act, may be treated as a return filed in response to notice dt. 26/03/2015.

5. A copy of the reasons for reopening is placed at page 15 of the paper book, which reads as follows:-

“A piece of information received from DDIT(Inv)-2(1), Kolkata stating that a search & seizure action u/s 132 of the I.T. Act 1961 was carried out in the case of Cygnus group of companies on 23.12.2014. During the course of post search and Seizure investigation. It is noted that M/s Sat yam Investment Advisory Pvt Ltd, a group company of M/s. Cygnus Group has taken accommodation entries from various paper/jamakharchi companies (copy enclosed).

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