M/s. HINDUSTAN CONTINENTAL LTD.(Now known as Azure Exim Services Ltd.), Indore V. THE DCIT 1(1), Indore

CO 64/IND/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0985 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 3 month(s) 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-03-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 07-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRISH AGRAWAL; VIJAY BANSAL CAS
• Assessee Lawyers: ASHIMA GUPTA
• Keywords: Opportunity of being heard; Corroborative evidences; Set aside
• Section: 143(3); 144

Judgement Text

HINDUSTAN CONTINENTAL ITA 461 OF 2014 AND CO 64 OF 2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO. 461/IND/2014 A.Y. 2009-10 DCIT-1(1), INDORE :: APPELLANT VS M/S. HINDUSTAN CONTINENTAL PVT. LTD., MUMBAI (NOW KNOWN AS AZURE EXIM SERVICES LTD.) :: RESPONDE NT C.O. NO.64/IND/2015 ARISING OUT OF ITA NO. 461/IND/2014 A.Y. 2009-10 M/S. HINDUSTAN CONTINENTAL PVT. LTD., MUMBAI (NOW KNOWN AS AZURE EXIM SERVICES LTD.) :: APPELLAN T VS DCIT-1(1), INDORE :: RESPONDENT DEPARTMENT BY SMT. ASHIMA GUPTA, CIT RESPONDENT BY SHRI GIRISH AGRAWAL AND SHRI VIJAY BANSAL, CAS DATE OF HEARING 11.3.2019 DATE OF PRONOUNCEMENT 25.3.2019 O R D E R PER SHRI KUL BHARAT, JM THE ABOVE APPEAL FILED BY THE REVENUE AND CROSS-OB JECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORD ER OF LD. CIT(A)-I, INDORE DATED 31.3.2014. ITA NO.461/IND/2014 (DEPARTMENTAL APPEAL) HINDUSTAN CONTINENTAL ITA 461 OF 2014 AND CO 64 OF 2015 2 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ON THE FACT S AND IN CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN: - 1. HOLDING THE ASSESSMENT ORDER U/S 144 R.W.S. 143(3) FOR THE ASSESSMENT YEAR 2009-10 AS BAD IN LAW ON THE GROUND THAT THE ASSESSING OFFICER DID NOT HAVE THE PROOF OF SERVICE OF NOTICE U/S 143(2) EITHER DIRECTLY OR THROUGH POST WITHOUT APPR ECIATING THE FACT THAT THE CORROBORATIVE EVIDENCES IN THE SHAPE OF OFFICE COPY OF NOTICE U/S 143(2) AND THE ENTRY RECORDED IN THE DISPATCHED REGISTER CLEARLY ESTABLISH THAT THE NOTICE UNDER TH IS SECTION WAS ISSUED AND SERVED THROUGH POSTAL AUTHORITIES UPON T HE ASSESSEE AT THE ADDRESS MENTIONED BY THE ASSESSEE IN THE RET URN OF INCOME ITSELF WITHIN THE TIME SPECIFIED UNDER THE SECTION. 2. HOLDING THE ASSESSMENT ORDER U/S 144 R.W.S. 143(3) FOR THE ASSESSMENT YEAR 2009-10 AS BAD IN LAW ON THE GROUND THAT THE ASSESSING OFFICER DID NOT HAVE THE PROOF OF SERVICE OF NOTICE U/S 143(2) EITHER DIRECTLY OR THROUGH POST AS INFERRED BY HIM ON THE BASIS OF REMAND REPORT SUBMITTED DURING THE COURSE OF APPELLATE PROCEEDINGS AS THE CORROBORATIVE EVIDENCES IN THE S HAPE OF THE ENTRY OF DISPATCH OF NOTICE U/S 143(2) RECORDED IN THE DISPATCH REGISTER WAS NOT TRACEABLE IN THE OFFICE OF THE ITO WARD-1(1), INDORE AND WHICH HAS NOW BEEN TRACED OUT AND AVAILA BLE WITH THE ASSESSING OFFICER. 3. FACTS, IN BRIEF, ARE THAT FOR VERIFICATION OF SE RVICE OF NOTICE U/S 143(2), THE LD. CIT(A) SENT A LETTER TO THE ASSESSI NG OFFICER ON 02.1.2014. THE ASSESSING OFFICER FILED LETTER DATED 15.1.2014 (REMAND REPORT) SUBMITTING THAT: - THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 30. 9.2009 IN WARD- 1(1), INDORE. IN THE RETURN OF INCOME, IT HAD SHOWN ITS ADDRESS AS UNDER: A-01, GROUND FLOOR, KALYAN BHAWAN, HINDUSTAN CONTINENTAL ITA 461 OF 2014 AND CO 64 OF 2015 3 PLOT NO.406, ANDHERI EAST, MUMBAI (MAHARASHTRA 400069) THE ITO, WARD-1(1), INDORE HAS ISSUED THE NOTICE U/ S 143(2) DATED 18.8.2010 BY POST AT THE ABOVE ADDRESS AS MENTIONED IN THE ORDER U/S 144 DATED 29.12.2011. SUBSEQUENTLY, AS PER RECO RDS, THE ITO, WARD-1(1), INDORE GATHERED FROM THE ROCS WEBSITE T HAT THE ASSESSEE HAD CHANGED ITS ADDRESS TO THE FOLLOWING A DDRESS: - F-71, SOLARIS, SAKHI VIHAR ROAD, ANDHERI EAST, MUMBAI (MAHARASHTRA) IN VIEW OF THE ABOVE, THE ITO, WARD-1(1), INDORE HA D ISSUED NOTICE U/S 143(2) ON 24.9.2010 AND 08.9.2010 BY POST. AS P ER RECORDS, THE AFORESAID NOTICES WERE NOT FOUND TO BE NOT RETURNED UNSERVED. FROM THIS, IT FOLLOWS THAT THE NOTICES U/S 143(2) WERE S ERVED UPON THE ASSESSEE AT THE ADDRESSES PROVIDED BY IT IN THE RET URN OF INCOME AND ITS ROCS WEBSITE. IT MAY FURTHER BE MENTIONED THAT THE AFORESAID FACTS WERE DULY MENTIONED IN THE ORDER PASSED U/S 1 43(3) ON 29.12.2011. THEREAFTER, THE LD. CIT(A) SENT ANOTHER LETTER DATE D 17.1.2014 TO THE ASSESSING OFFICER ASKING TO FURNISHING THE PROOF OF SERVICE OF NOTICE US/ HINDUSTAN CONTINENTAL ITA 461 OF 2014 AND CO 64 OF 2015 4 143(2). THEREFORE, THE ASSESSING OFFICER FILED ANOT HER LETTER DATED 20.2.2014, WHICH IS REPRODUCED HEREUNDER: IN THIS CONNECTION REFERENCE IS INVITED TO THIS OF FICE REPORT ON THE SERVICE OF NOTICE U/S 143(2) OF THE INCOME TAX ACT UPON THE ASSESSEE. AS REPORTED EARLIER IT MAY BE MENTIONED T HAT THE STATUTORY NOTICE U/S 143(2) FOR THE ASSESSMENT YEAR 2009-10 W AS ISSUED BY THE ITO WARD-1(1), INDORE ON 18.8.2010 AT THE ADDRE SS PROVIDED IN THE RETURN OF INCOME. SUBSEQUENTLY, THE ASSESSING O FFICER (ITO WARD-1(1), INDORE) ISSUED THE NOTICE U/S 143(2) AND SENT THE SAME TO THE ASSESSEE AT THE ADDRESS GATHERED BY HIM FROM THE ROCS WEBSITE AS MENTIONED IN THIS OFFICE REPORT DATED 15 .1.2014 MENTIONED ABOVE. ON ENQUIRY FROM THE ITO-1(1), INDORE BY THE UNDERSI GNED AND BY THE RESPECTED JOINT COMMISSIONER OF INCOME TAX, R-1 , INDORE ABOUT THE SERVICE OF THE ABOVE NOTICE U/S 143(2) IT IS GATHERED THAT PRESENTLY THE ACKNOWLEDGEMENT OF THE SERVICE OF NOT ICE IS NOT TRACEABLE. IT IS ALSO VERBALLY REPORTED BY HIM THAT THE ABOVE NOTICES WERE SENT BY THE THEN ITO WARD-1(1), INDORE BY POST . IN VIEW OF THE ABOVE, THE LD. CIT(A) HELD THE ASSES SMENT PROCEEDING AS BAD IN LAW RECORDING THAT FROM THE ABOVE LETTERS (R EMAND REPORT) OF THE ASSESSING OFFICER, IT IS CLEAR THAT THE ASSESSING O FFICER DOES NOT HAVE HINDUSTAN CONTINENTAL ITA 461 OF 2014 AND CO 64 OF 2015 5 ANY PROOF OF SERVICE U/S 143(2) OF THE INCOME TAX A CT. BEING AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 4. BEFORE US, THE LD. CIT/DR SUBMITTED THAT LD. CIT (A) WAS NOT JUSTIFIED IN HOLDING THE ASSESSMENT ORDER U/S 144/1 43(3) AS BAD IN LAW ON THE GROUND THAT THE ASSESSING OFFICER DID NOT HAVE THE PROOF OF SERVICE OF NOTICE U/S 143(2) EITHER DIRECTLY OR THROUGH POST B ECAUSE THE LD. CIT(A) DID NOT APPRECIATE THE FACT THAT THE CORROBORATIVE EVIDENCES IN THE SHAPE OF OFFICE COPY OF NOTICE U/S 143(2) AND THE ENTRY R ECORDED IN THE DISPATCH REGISTER CLEARLY ESTABLISH THAT THE NOTICE UNDER TH IS SECTION WAS ISSUED AND SERVED THROUGH POSTAL AUTHORITIES UPON THE ASSE SSEE AT THE ADDRESS MENTIONED BY THE ASSESSEE IN THE RETURN OF INCOME I TSELF WITHIN THE TIME SPECIFIED UNDER THE SECTION. THE CORROBORATIVE EVID ENCES IN THE SHAPE OF THE ENTRY OF DISPATCH OF NOTICE U/S 143(2) RECORDED IN THE DISPATCH REGISTER WAS NOT TRACEABLE IN THE OFFICE OF THE ITO WARD-1(1), INDORE AND WHICH HAS NOW BEEN TRACED OUT AND AVAILABLE WITH TH E ASSESSING OFFICER. FURTHER, THE LD. CIT/DR ARGUED THAT IT WAS THE DUTY OF THE ASSESSEE TO INTIMATE THE ASSESSING OFFICER ABOUT THE CHANGE OF ADDRESS AND THEREFORE, THE ASSESSING OFFICER WAS JUSTIFIED IN I SSUING THE NOTICES ON THE ADDRESSES AVAILABLE ON RECORD. THE ASSESSING OF FICER TRIED HIS BEST TO SERVE THE NOTICE UPON THE ASSESSEE AS IS EVIDENT FROM THE REMAND REPORT FURNISHED BY THE ASSESSING OFFICER THROUGH T HE AFORESAID LETTERS HINDUSTAN CONTINENTAL ITA 461 OF 2014 AND CO 64 OF 2015 6 WHEREIN THE ASSESSING OFFICER SUBMITTED THAT THE IT O, WARD-1(1), INDORE HAD ISSUED THE NOTICE U/S 143(2) DATED 18.8.2010 BY POST AT THE ADDRESS AS MENTIONED IN THE ORDER U/S 144 DATED 29.12.2011 AND SUBSEQUENTLY, AS PER RECORDS, THE ITO, WARD-1(1), INDORE GATHERED FROM THE ROCS WEBSITE THAT THE ASSESSEE HAD CHANGED ITS ADDRESS T O THE NEW ADDRESS AS MENTIONED IN THE REMAND REPORT. THUS, THE ASSESS EE WAS IN DEFAULT NOT TO INTIMATE THE ADDRESS TO THE REVENUE AUTHORIT IES AND LD. CIT(A) FAILED TO APPRECIATE THIS ASPECT. ACCORDINGLY, LD. CIT/DR REQUESTED THAT THE REVENUE MAY BE GIVEN ONE MORE CHANCE BEFORE THE LD. CIT(A). ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE CONTEN DED THAT THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THE ASSESSMENT PROC EEDING AS BAD IN LAW AS FROM THE REMAND REPORT ITSELF SUBMITTED BY THE A SSESSING OFFICER, IT IS CLEAR THAT THE ASSESSING OFFICER DOES NOT HAVE ANY PROOF OF SERVICE U/S 143(2) OF THE INCOME TAX ACT. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF LOWER AUTHORITIES. WE FIND THAT IN THE INSTANT APPEAL, WE FIND THAT BEFORE US, THE REVENUE HAS CLAIMED THAT THE CORROBORATIVE EVIDENCE S IN THE SHAPE OF THE ENTRY OF DISPATCH OF NOTICE U/S 143(2) RECORDED IN THE DISPATCH REGISTER WAS NOT TRACEABLE IN THE OFFICE OF THE ITO WARD-1(1), INDORE AND WHICH HAS NOW BEEN TRACED OUT AND AVAILABLE WITH TH E ASSESSING OFFICER. FURTHER, THE LD. CIT/DR ARGUED THAT IT WAS THE DUTY OF THE ASSESSEE TO HINDUSTAN CONTINENTAL ITA 461 OF 2014 AND CO 64 OF 2015 7 INTIMATE THE ASSESSING OFFICER ABOUT THE CHANGE OF ADDRESS AND THEREFORE, THE ASSESSING OFFICER WAS JUSTIFIED IN I SSUING THE NOTICES ON THE ADDRESSES AVAILABLE ON RECORD. THE LD. CIT/DR A LSO ARGUED THAT THE ASSESSING OFFICER TRIED HIS BEST TO SERVE THE NOTIC E UPON THE ASSESSEE AT THE AVAILABLE ADDRESSES AS MENTIONED IN THE ORDER U /S 144 DATED 29.12.2011 AND SUBSEQUENTLY, ON THE NEW ADDRESS GAT HERED FROM THE ROCS WEBSITE, THUS, THE ASSESSING OFFICER WAS NOT ON DEFAULT BUT THE ASSESSEE WAS IN DEFAULT BY NOT INTIMATING THE CHANG ED ADDRESS TO THE REVENUE AUTHORITIES AND LD. CIT(A) FAILED TO APPREC IATE THIS ASPECT. WE, THEREFORE, CONSIDERING THE ABOVE RIVAL SUBMISSIONS AND MATERIAL AVAILABLE ON RECORD, ARE OF THE VIEW THAT IN THE IN TEREST OF JUSTICE AND FAIR PLAY, THE REVENUE DESERVES ONE MORE OPPORTUNITY. TH EREFORE, WE DEEM IT APPROPRIATE TO SET ASIDE THE ORDER OF THE LD. CI T(A) ON THIS ISSUE. THE APPEAL IS REMANDED BACK TO THE FILE OF THE LD. CIT( A) WITH DIRECTION TO CONSIDER THE SUBMISSIONS OF THE REVENUE AFRESH. THE LD. CIT(A) WOULD DECIDE THE APPEAL IN TERMS AS INDICATED HEREINABOVE AFTER AFFORDING DUE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES AS PER LAW. ACCORDINGLY, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STAT ISTICAL PURPOSES ONLY. CO NO.64/IND/2015 FILED BY THE ASSESSEE 6. SO FAR AS THE CROSS-OBJECTION FILED BY THE ASSES SEE IS CONCERNED, WE FIND THAT THE ON ONE HAND, IT IS FILED IN SUPPOR T OF THE ORDER OF THE LD. HINDUSTAN CONTINENTAL ITA 461 OF 2014 AND CO 64 OF 2015 8 CIT(A) AND GROUNDS RELATED TO WHICH HAVE ALREADY BE EN REMANDED TO THE FILE OF THE LD. CIT(A) AND ON THE OTHER HAND, IT IS FILED ON THE GROUNDS THAT THE GROUNDS NEED ADJUDICATION ON MERITS OF THE CASE . HOWEVER, LOOKING TO OUR ABOVE FINDING, THIS CROSS-OBJECTION FILED BY THE ASSESSEE IS ALSO REMANDED TO THE FILE OF THE LD. CIT(A) WHO AFTER DE CIDING THE LEGAL ISSUE OF SERVICE OF NOTICE U/S 143(2) MAY DECIDED THE GRO UNDS ON MERITS AS PER CIRCUMSTANCES AND UNDER THE LAW. 7. FINALLY, THE DEPARTMENTAL APPEAL AND CO FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 25.3.2019 . SD/- ( MANISH BORAD) ACCOUNTANT MEMBER SD/- (KUL BHARAT) JUDICIAL MEMBER DATED : 25.3.2019 ! VYAS ! COPY TO: APPELLANT/RESPONDENT/PR.CIT(A)/PR.CIT/DR, INDORE