Calcutta H.C : The assessing officer is under an obligation under the Act of 1961 to furnish necessary document relied upon by him in an assessment proceeding and intimate the date of personal hearing to enable the assessee to represent his case and meet the allegations made against him by cross examining the persons whose statement have been relied upon before the passing of an assessment order

High Court Of Calcutta

Alok Todi vs. CIT, (Central)-II

Block Period : 1987-88 To 1996-97

Section : 144, 260A

Bhaskar Bhattacharya And Sambuddha Chakrabarti, JJ.

IT Appeal No. 284 Of 2004

July 13, 2011

JUDGMENT

Bhaskar Bhattacharya, J – This appeal under Section 260A of the Income-tax (“Act”), 1961 is at the instance of an assessee, represented by two of its erstwhile partners, and is directed against an order dated December 17, 2003 passed by the Income-tax Appellate Tribunal, “A” Bench, Kolkata in Income-tax (SS) Appeal No.34 (Kol) of 1998 for the Block Period 1987-88 to 1996-97 up to 2nd July, 1996.

2. Being dissatisfied, two of the partners of the erstwhile partnership firm, the assessee, have come up with the present appeal.

3. The facts giving rise to filing of this appeal may be summed up thus:

(a) In course of search on July 2, 1996 in the residential premises of one Bijay Kumr Gutgutia, some papers relating to the firm, M/s. Shree Krishna Arvind Hatcheries, along with other books of accounts and a bunch of papers with identification mark BKG/5 were seized. There were some entries which related to the firm M/s. Shree Krishna Arvind Hatcheries indicating that the firm had undisclosed income for the Assessment Year 1990-91.

(b) Proceedings under Section 158BB were drawn up and notice under Section 158C was issued on January 22, 1997 asking the firm to furnish the return for the block period.

(c) No return was filed as it was contended that the erstwhile firm was taken over by the newly floated company with effect from July 31, 1990 by virtue of a deed executed on July 21, 1990 and the firm discontinued its activities.

(d) The Assessing Officer proceeded to make the assessment under Section 158BC by holding that by virtue of Section 189(1) where any business or profession carried on by a firm had been discontinued or where the firm was dissolved, the Assessing Officer should frame the assessment on the total income of the firm as if no such discontinuance or dissolution had taken place.

(e) From the seized bunch of papers, it was found that the assessee firm had earned actual profit of Rs. 14.19 lac during the accounting period relating to the Assessment Year 1990-91 whereas in the books Rs. 8.87 lac was declared.

(f) In the deposition under Section 132(4) on 29th August, 1996 Sri Bijay Kumar Gutgutia, a partner of the erstwhile firm, had confirmed the actual income of the firm vis-à-vis the disclosed income.

(g) Sri H.C. Poddar, husband of Smt. Gayatri Poddar another partner, also confirmed in his deposition under Section 132(4) on 26th August, 1996 the undisclosed income of the firm for the Assessment Year 1990-91 on the basis of the information noted in the seized papers.

(h) It may not be out of place to mention here that no return was filed by the dissolved firm and the notice under Section 158 BC read with Section 158BD and Section 189(1) was issued to all the partners of the dissolved firm on June 6, 1997 asking them to give the return for the block period in respect of the firm of which they were partners. But in spite of that no return was filed by any of the partners. Subsequently, a show cause notice was issued to all the partners asking them why an order as per best judgment assessment should not be passed on the basis of the materials gathered at the instance of the Assessing Officer and a notice under Section 142(1) was issued.

(i) In the absence of compliance to the notice issued under Section 158BC read with Section 159BD of the Act and in the absence of any compliance to the show cause notice issued along with notice under Section 142(1), the Assessing Officer proceeded to complete the assessment as per best judgment assessment and ultimately, reassessed the amount of tax which came to Rs. 3,76,180/-.

(j) Being dissatisfied, only the present appellants, two of the partners, preferred an appeal before the Tribunal below and by the order impugned herein, the said Tribunal has affirmed the order of the Assessing Officer.

4. Being dissatisfied, two of the partners, who preferred the appeal before the Tribunal, have preferred the present appeal.

5. At the time of admission of the appeal, a Division Bench of this Court formulated the following substantial questions of law:

“(i) Whether the assessing officer is under an obligation under the Act of 1961 to furnish necessary document relied upon by him in an assessment proceeding and intimate the date of personal hearing to enable the assessee to represent his case and meet the allegations made against him by cross examining the persons whose statement have been relied upon before the passing of an assessment order?

(ii) Whether on the facts and in the circumstances of the instant case the Assessing Officer had reasons to treat the entries contained in the books of account bearing identification mark BKG/5 as the undisclosed income of SKAH and further as to whether the assessment order as well as the order of the Tribunal is based on no evidence?”

6. Mr. Shome, the learned Senior Advocate appearing on behalf of the Revenue, at the very outset, has pointed out that the above two grounds formulated by the Division Bench did not come within the purview of Section 260A of the Act inasmuch as no such point was taken before the Tribunal below. Mr. Shome has drawn our attention to the grounds of appeal taken by the appellants before the Tribunal below which are quoted blow:

“1. In the facts and under the circumstances of the case the learned Assessing officer erred in adding a sum of Rs. 532000/- in the assessment year 1990-91 and Rs. 94966/- in the assessment year 1991-92.

2. In the facts and under the circumstances of the case the learned Assessing officer erred in not allowed deduction u/s 80I and 80JJ and other deduction as per law for both the assessment years.

3. In the facts and under the circumstances of the case the learned Assessing officer erred in adding the income in the hands of the appellant.

4. In the facts and under the circumstances, the assessment is bad in law as on the facts of the case.

5. That the appellant craves leave to adduce further grounds at the time of hearing.”

7. By relying upon the aforesaid grounds, Mr. Shome contends that the Division Bench should not have formulated the new points which do not come within the scope of the appeal against the order of the Tribunal.

8. After going through the materials on record, we agree with Mr. Shome, the learned Senior Advocate appearing on behalf of the Revenue, that the plea now sought to be urged before this Court that the Assessing Officer should have furnished necessary documents and intimate the date of personal hearing is not tenable in view of the fact that no such plea was taken either before the Assessing Officer or the Tribunal. We have already pointed out that in spite of service of notice, nobody even submitted return or had shown cause as required. Such being the position, the two grounds formulated by the Division Bench cannot be supported.

9. We, thus, find that on the basis of best judgment assessment made by the Assessing Officer, there is no scope of interference in this appeal under Section 260A of the Act and those two grounds raising new questions which are essentially questions of fact cannot be permitted to be raised for the first time in this appeal and the Revenue in terms of sub-section 4 of Section 260A of the Act is entitled to raise the question that the ground formulated by the Division Bench are not involved within the scope of this appeal. When no material has been produced dislodging the finding of the Assessing Officer that in spite of service neither any return was submitted nor any cause shown pursuant to the notice, we are of the opinion that in the facts of the present case, the best judgement assessment of the Assessing Officer cannot be said to be vitiated by any error of law.

10. This appeal is, consequently, thus dismissed being devoid of any substance as no substantial question of law is involved herein.

11. In the facts and circumstances, there will be, however, no order as to costs.

Sambuddha Chakrabarti, J – I agree.

[Citation : 339 ITR 102]

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