Maria Nita Furtado., Panaji V. Income Tax Officer, International Taxation., Margao

CO 3/PAN/2015

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1072 (ITAT-PANAJI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 27-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 23-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BANGARI LD
• Assessee Lawyers: CHINMAY S KAMAT; SHAM J KAMAT
• Keywords: Assessment record; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI GEORGE MATHAN , HONBLE JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, HON'BLE ACCOUNTANT MEMBER ITA N O . 225 /PNJ/20 14 : (A.Y 2008 - 09 ) ITO, INTERNATIONAL TAXATION, MARGAO ( APPELLANT) VS. CARMO VASCO JACINTO FURTADO, ABADE FARIA ROAD, MARGAO, PAN : AAQPF6921P (RESPONDENT) CO NO. 2/PNJ/2015 (IN ITA N O . 225 /PNJ/20 14) : (A.Y 2008 - 09 ) CARMO VASCO JACINTO FURTADO, ABADE FARIA ROAD, MARGAO, PAN : AAQPF6921P (CROSS OBJECTOR) VS. ITO, INTERNATIONAL TAXATION, MARGAO ( RESPONDENT) ITA N O . 226 /PNJ/20 14 : (A.Y 2008 - 09 ) ITO, INTERNATIONAL TAXATION, MARGAO ( APPELLANT) VS. SMT. MARIA NITA C.M. FURTADO, ABADE FARIA ROAD, MARGAO, PAN : ATGPM0803Q (RESPONDENT) CO NO. 3/PNJ/2015 (IN ITA N O . 226 /PNJ/20 14) : (A.Y 2008 - 09 ) SMT. MARIA NITA C.M. FURTADO, ABADE FARIA ROAD, MARGAO, PAN : ATGPM0803Q (CROSS OBJECTOR) VS. ITO, INTERNATIONAL TAXATION, MARGAO ( RESPONDENT) ASSESSEES BY : SHAM J. KAMAT, CA & CHINMAY S. KAMAT, CA REVENUE BY : M.R. BANGARI, LD. DR DATE OF HEARING : 11 / 06 /201 5 DATE OF PRONOUNCEMENT : 11 / 06 /201 5 2 ITA NOS. 225&226/PNJ/2014 & CO NOS. 2&3/PNJ/2015 (A.Y : 2008 - 09) O R D E R PER GEORGE MATHAN : 1. ITA NO. 225/PNJ/2014 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), PANAJI IN ITA NO. 88/MRG/13 - 14 DT. 19.3.2014 FOR A.Y 2008 - 09 IN THE CASE OF CARMO VASCO JACINTO FURTADO . ITA NO. 226/PNJ/2014 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), PANAJI IN ITA NO. 89/MRG/13 - 14 DT. 19.3.2014 FOR A.Y 2008 - 09 IN THE CASE OF SMT. MARIA NITA FURTADO. CO NO. 2/PNJ/2015 IS A CROSS OBJECTION FILED BY THE ASSESSEE IN THE REVENUES APPEAL, ITA NO. 225/PNJ/2014 AND CO NO. 3/PNJ/2015 IS A CROSS OBJECTION FILED BY THE ASSESSEE IN THE REVENUES APPEAL, ITA NO. 226/PNJ/2014. AS THE ISSUES IN BOTH THE APPEALS ARE IDENTICAL AND ARE INTER - CONNECTED, BOTH THE REVENUES APPEALS AND BOTH THE CROSS OBJECTIONS FILED BY THE ASSESSEES ARE DISPOSED OFF BY THIS COMMON ORDER. SHRI M.R. BANGARI, LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHR I SHAM J. KAMAT AND SHRI CHINMAY S. KAMAT, CAS REPRESENTED ON BEHALF OF THE ASSESSEES. 2. THE CROSS OBJECTIONS FILED BY THE ASSESSEES ARE TIME BARRED BY 169 DAYS. THE ASSESSEES HAVE FILED AFFIDAVITS IN RESPECT OF CONDONATION OF DELAY WHEREIN THE AFFIDA VITS OF THE EMPLOYEE OF THE CA AND THE CA OF THE ASSESSEES HAVE BEEN FILED WHEREIN IT HAS BEEN SPECIFICALLY CLARIFIED THAT THE DELAY WAS ON ACCOUNT OF NON - PROVIDING OF INFORMATION REGARDING THE NOTICE U/S 143(2) FROM THE AO. THE LD. DR VEHEMENTLY OPPOSED THE CONDONATION OF DELAY. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE HAVE ALSO GONE THROUGH THE AFFIDAVITS FILED BY THE CA OF THE ASSESSEES WHO IS THE COUNSEL APPEARING BEFORE US IN THE PRESENT APPEALS. ADMITTEDLY, THE AVERMENTS IN THE AFFIDAVITS 3 ITA NOS. 225&226/PNJ/2014 & CO NOS. 2&3/PNJ/2015 (A.Y : 2008 - 09) HAVE NOT BEEN DISPUTED BY THE REVENUE. ADMITTEDLY, WITHOUT THE SAID DETAILS, THE FILING OF THE CROSS OBJECTIONS WOULD, IN FACT, BE DIFFICULT. CONSEQUENTLY, THE DELAY IN FILING OF THE CROSS OBJECTIONS IS CONDONED AND THE CROSS OBJECTIONS ARE TAKEN ON REC ORD. 4. IN THE CROSS OBJECTIONS, THE ASSESSEES HAVE RAISED THE ISSUE OF NON - ISSUANCE OF NOTICE U/S 143(2) WITHIN THE PRESCRIBED TIME. AS THIS ISSUE GOES TO THE ROOT OF THE ASSESSMENT, THE CROSS OBJECTIONS WERE DIRECTED TO BE ARGUED FIRST. IT WAS SUBMITT ED BY THE LD. DR THAT THE GROUNDS RAISED IN THE CROSS OBJECTIONS BEING AGAINST THE ISSUANCE OF NOTICE U/S 143(2) WAS AT THE OUTSET NOT BEFORE THE LD. CIT(A) AND CONSEQUENTLY, WAS A FRESH ISSUE RAISED. IT WAS FURTHER SUBMISSION THAT IN VIEW OF THE PROVISIO NS OF SEC. 292BB OF THE ACT, THE ASSESSEES WERE PRECLUDED FROM RAISING SUCH AN ISSUE IN THE APPEAL. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR. ADMITTEDLY, THE ISSUE OF THE VALIDITY OF THE NOTICE ISSUED U/S 143(2) HAS NOT BEEN ADJUDICATED BY T HE LD. CIT(A) AS THE SAME WAS NOT BEFORE HIM. EVEN THOUGH THE LD. DR WAS DIRECTED TO PRODUCE THE ASSESSMENT RECORDS WHEN THE APPEALS WERE POSTED FOR HEARING LAST IN MARCH, 2015, STILL THE RECORDS HAVE ALSO NOT BEEN PRODUCED BEFORE THE TRIBUNAL FOR VERIFIC ATION. IN THE CIRCUMSTANCES, AS ALL THE FACTS ARE ALSO NOT AVAILABLE, IN THE INTEREST OF JUSTICE THE ISSUE RAISED IN THE CROSS OBJECTIONS REGARDING THE VALIDITY AND JURISDICTION OF THE ASSESSMENT AND THE NOTICE ISSUED U/S 143(2) IS RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION AFTER GRANTING THE ASSESSEES ADEQUATE OPPORTUNITY TO SUB S TANTIATE ITS CLAIM. 6. AS WE HAVE RESTORED THE ISSUE RAISED IN THE CROSS OBJECTIONS REGARDING THE ISSUANCE OF NOTICE U/S 143(2) TO THE LD. CIT(A) FOR ADJUDICATION, WE ARE OF THE 4 ITA NOS. 225&226/PNJ/2014 & CO NOS. 2&3/PNJ/2015 (A.Y : 2008 - 09) VIEW THAT THE ISSUES RAISED IN THE REVENUES APPEALS WOULD ALSO HAVE TO BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR RE - ADJUDICATION AND WE DO SO. 7. IN THE RESULT, THE APPEALS FILED BY THE REVENUE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEES ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 1 /06/2015. S D / - (N.K. BILLAIYA) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 1 1 /06/ 201 5 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT - (I) CARMO VASCO JACINTO FURTADO AND (II) SMT. MARIA NITA FURTADO (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 5 ITA NOS. 225&226/PNJ/2014 & CO NOS. 2&3/PNJ/2015 (A.Y : 2008 - 09) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 11/06/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 11/06/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 11/06/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 11/06/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 11/06/2015 SR.PS 6. DATE OF PRONOUNCEMENT 11/06/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 11/06/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER