M/s. Nad Enterprise, Durgapur V. ACIT, Circle - 2, Durgapur, Durgapur

CO 12/KOL/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8784 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 26-06-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 07-03-2012
• Court: TRIBUNAL
• Department Lawyers: D J MEHATA SRDR
• Assessee Lawyers: UDYAN DASGUPTA
• Keywords: Reassessment proceedings
• Section: 143(3); 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI, PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO. 16 / KOL / 2012 & C.O.NO.12/KOL/2012 (A/O ITA NO.16/KOL/2012) ASSESSMENT YEAR :2004-05 ASSTT. COMMISSIONER OF INCOME-TAX, CIRCLE- 2, DURGAPUR M/S. NAD ENTERPRISE, NETAJI MARKET, BENACHITY, DURGAPUR V/S . V/S . M/S. NAD ENTERPRISE, NETAJI MARKET, BENACHITY, DURGAPUR 713 213 [ PAN NO.AAFFN 4094 C ] ACIT, CIRCLE-2, DURGAPUR / APPELLANT .. / RESPONDENT) /BY ASSESSEE SHRI UDYAN DAS GUPTA, AR /BY REVENUE SHRI D.J. MEHATA, SR-DR /DATE OF HEARING 26-06-2013 ! /DATE OF PRONOUNCEMENT 26-06-2013 ' ' ' ' / // / O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY REVENUE AND CROSS OBJECTION (CO) BY ASSESSEE ARE ARISING OUT OF ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-DURGAPUR IN APPEAL NO. 54/CIT(A)/DGP/2008-09 DATED 20-10-2011. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-2, DURGAPUR U/S. 147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 24-12-2008 FOR ASSESSMENT YEAR (AY) 2004-05. ITA NO.16/KOL/12 & CO 12/KOL/12 A.Y. 2004-05 ACIT CIR-2, DGP V. M/S. NAD ENTERPRISE PAGE 2 2. AT THE OUTSET, LD. COUNSEL OF THE ASSESSEE STATE D THAT THIS CROSS OBJECTION OF ASSESSEE IS BARRED BY LIMITATION OF 4 DAYS AND ASSESSEE HAS FILED CONDONATION PETITION STATING FOLLOWING REASONS AS U NDER:- 3) THAT I WAS TO FILE AN APPLICATION FOR CROSS OBJ ECTION IN FORM 36A, WITHIN 30 DAYS, BEFORE THE INCOME TAX APPELLATE TRIBUNAL, KOL KATA BY 3 RD MARCH 2012, WHICH WAS DISPATCHED BY POST FROM DURGAPUR BY ME AN D THE SAME REACHED THE OFFICE OF THE ITAT, KOLKATA ON 7/3/2012, WHICH WAS TIME BARRED BY FOUR DAYS . 4) THAT SINCE I WAS OUT OF STATION DURING THE LAST WEEK OF FEBRUARY 2012, FOR BUSINESS PURPOSE, I COULD NOT DISPATCH THE SAME WIT HIN THE STIPULATED TIME OF 30 DAYS AND ON MY RETURN IN THE FIRST WEEK OF MARCH , 2012, I SINGED AND DISPATCHED THE SAME IMMEDIATELY SO THAT THE SAID CO REACHED THE OFFICE OF THE ITAT, BELATED BY FOUR DAYS, ON 7 TH MARCH, 2012. 5) THAT IT IS HUMBLY PRAYED BY ME THAT THE ABOVE DE LAY OF FOUR DAYS MAY PLEASE BE CONDONED AND THE CO MAY PLEASE BE ADMITTE D TO BE HEARD ON MERITS. WHEN THESE REASONS WERE CONFRONTED TO LD. SR-DR, HE FAIRLY CONCEDED THAT DELAY CAN BE CONDONED. IN SUCH CIRCUMSTANCES, WE CO NDONE THE DELAY AND ADMIT THE CO FILED BY ASSESSEE. FIRST WE TAKE UP ASSESSEES CO NO.12/KOL/2012 (AY 0 4-05) 3. THE ISSUE OF CO FILED BY ASSESSEE IS REGARDING J URISDICTION. THE ISSUE IN THIS CO OF ASSESSEE IS NON-ISSUE OF STATUTORY NOTIC E U/S. 143(2) OF THE ACT AND IN THE ABSENCE OF THE SAME THE ASSESSMENT IS BAD AN D ILLEGAL. FOR THIS ASSESSEE HAS RAISED FOLLOWING GROUND NO.1: 1) FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A ) SHOULD HAVE CANCELLED HE REASSESSMENT PROCEEDINGS IN ABSENCE OF ANY STATUTOR Y NOTICE ISSUED BY THE AO US. 143(2) OF THE ACT61, AND AS SUCH THE SAID R EASSESSMENT MAY PLEASE BE CANCELLED. 4. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE REMAND REPORT DATED 12-01-2011 VIDE NO.ACIT/CIRCLE- 2/DGP/REMAND REPORT/2010-11/155 DATED 12-01-2011 PAGE-7 OF THE A SSESSEES PAPER BOOK, ITA NO.16/KOL/12 & CO 12/KOL/12 A.Y. 2004-05 ACIT CIR-2, DGP V. M/S. NAD ENTERPRISE PAGE 3 WHEREIN THE ASSESSING OFFICER (AO) HAS ADMITTED THA T NO NOTICE U/S. 143(2) OF THE ACT WAS EVER ISSUED AND THE RELEVANT PARA-3 OF THE REMAND REPORT READS AS UNDER:- 3. AS REGARDS NON-ISSU9E OF NOTICE U/S. 143(2),IT IS RESPECTFULLY SUBMITTED THAT THE ASSESSEE THROUGH THEIR LETTER, RECEIVED IN THIS OFFICE ON 08/12/2008, CLAIMED THAT RETURN OF INCOME FILED U/S. 139 BE TRE ATED AS ONE IN RESPONSE TO THE NOTICE ISSUED U/S. 148. IT WAS FURTHER CLAIMED THAT AUDITED P&L A/C AND BALANCE SHEET, FILED WITH THE ORIGINAL RETURN BE TR EATED AS TO HAVE BEEN FILED IN RESPONSE TO NOTICE ISSUED U/S. 143(1). HENCE IF NON -ISSUE OF NOTICE U/S. 143(3) IS A NOTICE, IT IS JUST A TECHNICAL LAPSE AND ABOVE ALL THE ASSESSEE WAS GIVEN MORE THAN ADEQUATE OPPORTUNITY TO FURNISH THEIR EXP LANATION IN RESPECT OF THE ISSUE ON THE BASIS OF WHICH NOTICE U/S. 148 WAS ISS UED. COPIES OF WRITTEN REPLY OF THE ASSESSEE ARE ENCLOSED HEREWITH. THUS PURPOSE FOR WHICH NOTICE U/S. 143(2) IS ISSUED, STANDS SERVED. AS THE NOTICE U/S. 143(2) OF THE ACT IS NOT ISSUED, THE ISSUE IS SQUARELY COVERED AGAINST THE REVENUE AND IN FAVOUR OF ASSESSEE BY TH E DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT AND ANOTHER V. HOTEL BLUE MOON (2010) 321 ITR 362 (SC). HONBLE SUPREME COURT HELD THAT T HIS SECTION INDICATES THAT TO ENABLE THE AO TO COMPLETE THE ASSESSMENT AFTER T HE RETURN IS FILED, THE ASSESSMENT U/S. 143(3) IS TO BE COMPLETED BY FOLLO WING THE PROCEDURE LIKE ISSUE OF NOTICE U/S. 143(2)/142. THIS DOES NOT PROV IDE ACCEPTING THE RETURN AS PROVIDED U/S. 143(1)(A): THE OFFICE HAS TO COMPLETE THE ASSESSMENT U/S. 143( 3) ONLY. IF AN ASSESSMENT IS TO BE COMPLETED U/S. 143( 3) READ WITH SECTION 158BC, NOTICE U/S. 143(2) SHOULD BE ISSUED WITHIN O NE YEAR FROM THE DATE OF FILING OF THE BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE U/S. 143(2) CANNOT BE A PROCEDURAL IRR EGULARITY AND IS NOT CURABLE. THEREFORE, THE REQUIREMENT OF NOTICE U/S. 143(2) CA NNOT BE DISPENSES WITH. HONBLE SUPREME COURT CONFIRMED THE DECISION OF THE HONBLE GAUHATI HIGH COURT AND THAT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. PAWAN GUPTA (2009) 318 ITR 322 (DEL). 5. IN VIEW OF THE ABOVE, THE ISSUE IS COVERED BY TH E DECISION OF HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) IN FAVOUR OF ASSESSEE. ITA NO.16/KOL/12 & CO 12/KOL/12 A.Y. 2004-05 ACIT CIR-2, DGP V. M/S. NAD ENTERPRISE PAGE 4 HENCE, WE QUASH THE ASSESSMENT FRAMED BY ASSESSING OFFICER AND CO OF ASSESSEE IS ALLOWED ON JURISDICTION. SINCE THE CO OF THE ASSESSEE IS ALLOWED ON JURISDICTIONAL ISSUE, WE NEED NOT TO DECIDE THE REVENUES APPEAL ON MERITS, WHICH IS DISMISSED AS INFRUCTUOUS. 6. IN THE RESULT, ASSESSEES CO IS ALLOWED AND APPE AL OF REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (MAHAVIR SI NGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP #$%- 26/06/2013 , ' ' ' ' --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $1$-2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. . 67 ---2, -2!, / DR, ITAT, KOLKATA 6. 79: ;< / GUARD FILE. BY ORDER/ ' , =/> $ -2!, ,