Arnab Mukherjee, Kolkata vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH "A", KOLKATA

[Before & Hon'ble Sri N.K.Saini, AM & Hon'ble Sri Mahavir Singh, JM] ITA No.577/Kol/2012 Assessment Year : 2004-05

(APPELLANT ) (RESPONDENT) Shri Arnab Mukherjee -vs- I.T.O., Ward- 2(1) Kolkata Burdwan (PAN:AHJPM 8329 G)

For the Appellant Shri S.L.Kochar & Shri Anil Kolchar, Advocate

For the Respondent Shri Vijay Kumar, CIT(DR)

Date of Hearing : 21.01.2015 Date of Pronouncement : 21.01.2015.

ORDER

Per Shri N.K.Saini, AM

This appeal by the assessee is directed against the order dated 26.03.2012 of ld. C.I.T-Burdwan and pertains to A.Yr.2004-05.

2. The only grievance of the assessee in this appeal relates to the action of the ld. CIT taken u/s 263 of the I.T.Act, 1961 (hereinafter referred to as the 'Act').

3. The facts of the case in brief are that assessment in this case was framed u/s 143(3) of the Act on 29.12.2006 by computing the total income of the assessee at Rs.68,36,140/-. Against the said assessment order the assessee preferred an appeal to the ld. CIT(A) who vide order dated 25.02.2008, confirmed the order of the AO. Being aggrieved the assessee further filed appeal before ITAT, Kolkata wherein vide order dated 04.06.2008 in ITA No.400/Kol/2008 the case was restored to the file of the AO with the direction of re-computing the amount of capital gain. The AO on the direction of ITAT in the aforesaid order framed the assessment u/.s 254/143(3) of the Act at an income of Rs.47,53,430/-. Thereafter the ld. CIT exercised the powers u/s 263 of the Act and set aside the assessment framed by the AO vide order dated 2 ITA No.577/Kol/2012 Shri Arnab Mukherjee A.Yr.2004-05

26.03.2012 and directed that this case needs further examination and re-verification of the Long Term Capital Gain.

3.1. Now the assessee is in appeal before the Tribunal. The ld. Counsel of the assessee submitted that the ld. CIT did not have the jurisdiction to pass the impugned order because the assessment order dated 31.12.2009 framed by the AO merged with the order dated 17.08.2011 of the ld. CIT(A). Therefore the impugned order dated 26.03.2012 deserves to be set aside. The ld. Counsel of the assessee furnished the chronology of events as under :

"29.12.2006 Order of assessment u/s 143(3) is made by the Assessing Officer (A.O.) Main issue was determination of Long Term Capital Gains.

25.02.2008 Ld. CIT(A) confirmed the order of the A.O. on the appeal by the assessee. 04.06.2008 The assessee submitted appeal to the appellate Tribunal who set aside the issue of Long Term Capital gains to the A.O. for fresh determination. 31.12.2009 Assessment made u/s 254/143(3) by A.O. Long Term Capital gains was freshly determined.

17.08.2011 Assessee's appeal to Ld.CIT(A) against order u/s 254/143(3) - Order passed by the Ld. CIT(A) - A.O. directed to - recalculate Long Term Capital gains as per his directions.

27.09.2011 A.O. passed order u/s 143(3)/254/251 giving effect to the order of the CIT(A). 26.03.2012 The Ld. CIT frames order u/s 263. This is disputed by the appellant-assessee and is in appeal before the Hon'ble Tribunal.

13.05.2013 The Revenue being not satisfied with the order dated 17.08.2011 of the ld.

CIT(A) submitted appeal to the Hon'ble Tribunal who dismissed the appeal of the Revenue. "

4. In his rival submission the ld. CIT(DR) submitted that the ld. CIT has exercised his revisional powers u/s 263 of the Act only on the issue which are not the subject matter of the appeal by the assessee before the ld. CIT(A).

5. We have considered the submissions of both the parties and carefully gone through the materials available on record. In the present case it is noticed that the AO while framing the original assessment order on 29.12.2006 discussed the issue relating to the Long Term Capital Gain in detail and thereafter worked out the Long Term Capital Gain and made the addition. Against the said assessment order the assessee preferred appeal before the ld. CIT(A), who sustained the addition made by the AO vide order dated 25.02.2008. Thereafter the assessee again filed an appeal before the ITAT wherein vide order dated 04.06.2008 the issue relating to the Long Term Capital 3 ITA No.577/Kol/2012 Shri Arnab Mukherjee A.Yr.2004-05

Gain was set aside to the AO with the direction to determine the same afresh. AO on the direction of the ITAT framed assessment u/s 254/143(3) of the Act vide order dated 31.12.2009. Against the said order assessee preferred appeal to the ld. CIT(A) who vide order dated 17.08.2011 directed the AO to re-calculate the Long Term Capital Gain. He had also mentioned that all other issues agitated by the assessee which were dealt with in the original assessment order dated 29.12.2006 attained the finality. The AO on the direction of ld. CIT(A) framed the assessment order on 27.09.2011. Therefore it can be said that assessment order dated 31.12.2009 was merged with the order dated 17.08.2011 of the ld. CIT(A) on the issue relating to the computation of Long Term Capital Gain. As such the ld. CIT had no jurisdiction u/s 263 of the Act while setting aside the assessment order dated 31.12.2009 which merged with the order dated 17.08.2011 of the ld. CIT(A). We, therefore, do not have any hesitation in setting aside the impugned order passed by the ld. CIT. Accordingly the impugned order dated 26.03.2012 is set aside.

6. In the result the appeal filed by the assessee is allowed.

Order pronounced in the open court on 21.01.2015.

Sd/- Sd/- [ Mahavir Singh ] [N.K.Saini] Judicial Member Accountant Member Date: 21.01.2015.

R.G.(.P.S.)

Copy of the order forwarded to:

1. Shri Arnab Mukherjee, C/o S.L.Kochar, Advocate, 86, Canning Street, Kolkata-1

2 I.T.O., Ward-2(1), Burdwan.

3. CIT- Burdwan

CIT(DR), Kolkata Benches, Kolkata.

True Copy, By order,

Asst. Registrar, ITAT, Kolkata Benches 4 ITA No.577/Kol/2012 Shri Arnab Mukherjee A.Yr.2004-05