M/s. Khemchand Motilal Jain Tobacco Products Pvtt. Ltd., V. ACIT, Jabalpur

CO 7/JAB/2010

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9416 (ITAT-JABALPUR)
• Duration Of Justice: 3 year(s) 7 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 25-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PRAKASH MISHRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.66/JAB/2010 ASSESSMENT YEAR: 2006-07 ASSTT. COMMISSIONER OF INCOME TAX, VS. M/S KHEMCH AND MOTILAL JAIN CIRCLE 1 (1), JABALPUR. TOBACO PRODUCT PVT. LTD. , 178, KESHAVGANJ, SAGAR (M.P.) (PAN AABCK 4355 J) C.O. NO.07/JAB/2010 ( IN ITA NO.66/JAB/2010) ASSESSMENT YEAR: 2006-07 M/S KHEMCHAND MOTILAL JAIN VS. ASSTT. COMMISSIONE R OF INCOME TAX, TOBACO PRODUCT PVT. LTD., CIRCLE 1 (1), JABALPUR. 178, KESHAVGANJ, SAGAR (M.P.) (PAN AABCK 4355 J) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI VED PRAKASH MISHRA, D.R. ASSESSEE BY : SHRI VIJAY GUPTA, C.A. DATE OF HEARING : 27.03.2014 DATE OF PRONOUNCEMENT : 28.03.2014 ORDER PER T.S. KAPOOR, ACCOUNTANT MEMBER: 2 ITA NO.66/JAB/2010 & C.O. NO.07/JAB/2010 A.Y. 2006-07 THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) DATED 16.03.2010. 2. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION TO T HE APPEAL WHEREIN IT HAS TAKEN THE FOLLOWING GROUNDS:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN NOT DECIDING THE GROUND NO.1 IN RESPECT OF NOTICE U/S.1 43(2) WHICH WAS SERVED ON 01.12.2007 2. THAT THE LD. CIT(A) HAS ERRED AND WAS NOT JUSTIF IED THAT HE HAS MENTIONED THAT GROUND OF APPEAL NO.1 CHALLENGES T HE LEGALITY OF THE ASSESSMENT ORDER WHICH WILL BE DEALT WITH AT THE LA ST BUT HE HAS NOT DISCUSSED AND DECIDED THIS GROUND OF APPEAL 3. SINCE THE ASSESSEE HAS TAKEN LEGAL ISSUES IN ITS CO, THE LD. A.R. WAS PROVIDED FIRST OPPORTUNITY TO ARGUE ON ITS C.O. AT THE OUTS ET, THE LD. A.R. SUBMITTED THAT NOTICE UNDER SECTION 143(2) WAS SERVE D N 01.12.200 7 AND IN SUPPORT HE INVITED OUT ATTENTION TO PAPER BOOK PAGENO.118 TO 120 WHEREIN C OPY OF NOTICE DATED 18.11.2007 WAS PLACED ALONG WITH PHOTOCOPY OF ENVEL OPE CONTAINING THE NOTICE . INVITING OUR ATTENTION TO THE DATE OF RECEIPT ON TH E ENVELOPE THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT IT WAS ONLYON01.12.20 07 THAT NOTICE WAS SERVED. AR ALSO PRODUCED ORIGINAL ENVELOP FOR OUR VERIFICATION . THE ASSESSEE HAS ALSO RELIED ON THE CASE LAW OF CIT VS. BHAN TEXTILES PVT. LTD. DEC IDED BY DELHI HIGH COURT 287 3 ITA NO.66/JAB/2010 & C.O. NO.07/JAB/2010 A.Y. 2006-07 ITR 370 WHEREIN UNDER THE SAME FACTS AND CIRCUMSTAN CES THE HONBLE DELHI HIGH COURT HAD HELD THE ASSESSMENT AS NOT VALID. 4. THE LD. D.R. TRIED TO DEFEND THE REVENUE HOLDING THAT SECTION 292BB CAN CURE THE DEFECT, IF ANY. 5. WE HAVE HEARD THE RIVAL PARTIES AND GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT RETURN IN THIS CASE WAS FILED ON 08.11.2006 AND AS PER THE PROVISION OF SECTION 143(2) AS APPLICABLE IN THAT P ERIOD A NOTICE SHOULD HAVE BEEN SERVED BY 30.11.2007. THE PROVISOTOSECTION143(2) R EADS AS UNDER PROVIDED THAT NO NOTICE UNDER CLAUSE 2 SHALL BE SE RVED ON THE ASSESSEE AFTER EXPIRY OF 12 MONTHS FROM THE END OF MONTH IN WHICH THE RETURN IS FURNISHED. 6. THE RETURN IN THIS CASE ADMITTEDLY WAS FILED ON 08.11.2006. THE PERIOD OF 12 MONTHS FROM THE END OF MONTH IN WHICH RETURN WAS FI LED EXPIRED ON 30.11.2007. THE ASSESSEE IS RESIDENT OF SAGAR AND AS PER THE PH OTOCOPY OF ENVELOP PLACED AT PAPER BOOK PAGE NO.120 CONTAINING NOTICE REACHED IN SAGAR ON 01.12.2007 AND WAS SERVED ON THE ASSESSEE ON THE SAME DATE. HOWEVER, THE LIMITATION FOR SERVICE OF NOTICE EXPIRED ON 30.11.2007. THEREFORE THE ORDER IS TIME BARRED AND WE HOLD THE ASSESSMENT ORDER AS NULL AND VOID. THE ASSESSEE HA D TAKEN UP THIS ISSUE BEFORE THE 4 ITA NO.66/JAB/2010 & C.O. NO.07/JAB/2010 A.Y. 2006-07 LD. CIT(A) WHO HAD NOT ADJUDICATED ON THE ABOVE. T HE CONTENTION OF THE LD. D.R. THAT PROVISIONS OF SECTION 291BB ARE FOR CARRYING O F THIS DEFECT IS NOT TENABLE AT ALL AS SECTION 292BB ISAPPLICABLEFROM01.04.2008. MOREO VER SECTION 292BB DEALS WITH ONLY WITH PROCEDURAL FAULTS AND NOT STATUTORY FAULTS AND IN VIEW OF THE ABOVE WE DECIDE THE CROSS OBJECTION FILED BY THE ASSESSEE IN ITS FAVOUR AND ALLOW THE SAME. 7. IN VIEW OF THE ABOVE FACTS THAT WE HAVE DECIDED THE CO IN FAVOUR OF THE ASSESSEE THE GROUNDS OF APPEAL TAKEN BY REVENUE BEC OMES ACADEMIC ONLY AND WE DO NOT INTEND TO ADJUDICATE ON THE ABOVE. 8. IN VIEW OF THE ABOVE THE C.O. FILED BY THE ASSES SEE IS ALLOWED WHEREAS THE APPEAL FILED BY THE REVENUE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 28.03.2014) SD/- SD/- (BHAVNESH SAINI) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 28 TH MARCH, 2014 PBN/* 5 ITA NO.66/JAB/2010 & C.O. NO.07/JAB/2010 A.Y. 2006-07 COPY OF THE ORDER FORWARDED TO :- 1) APPELLANT 2) RESPONDENT 3) CIT (APPEALS) CONCERNED 4) CIT CONCERNED 5) D.R., ITAT, JABALPUR BENCH, JABALPUR 6) GUARD FILE. BY ORDER, SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, CAMP AT JABALPUR