Shri Vijaykumar V. Mehta, Surat V. The Deputy C.I.T., Cen. Circle- 1., Surat

CO 97/AHD/2003

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9647 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 year(s) 4 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-06-2014
• Assessment Year: misc
• Appeal Filed On: 07-07-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K PATEL
• Assessee Lawyers: VIMALENDU VERMA
• Keywords: Validity of assessment; Block assessment
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) C.O. NO: 97/AHD/2003 ( BLOCK ASSESSMENT YEAR : 89-90 TO 98-99) VIJAYKUMAR U.MEHTA 3/3884, CHOWKI SHERI, BEGAMPURA, SURAT V/S THE DCIT, CENTRAL CIRCLE-1, SURAT. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIMALENDU VERMA, CIT, D.R. RESPONDENT BY : SHRI M.K. PATEL, A.R. ( )/ ORDER DATE OF HEARING : 17-06-014 DATE OF PRONOUNCEMENT : 11-07-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS C.O IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-IV, BARODA, DATED 08.06.2001. 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE COMMISSION A GENT OF TWO WHEELERS AND THREE WHEELERS AND PROPRIETOR OF YOGI MOTORS. I N THIS CASE A SEARCH U/S 132 OF THE ACT TOOK PLACE AT THE BUSINESS AND R ESIDENTIAL PREMISES OF THE ASSESSEE ON 13.10.1998. NOTICE U/S 158BC WAS IS SUED ON 27.1.1999 AND SERVED ON ASSESSEE ON 28.1.1999 IN RESPONSE TO WHICH ASSESSEE ON C.O NO 97/AHD/20 13 . BLOCK A.Y. 8 9-90 TO 98- 99 2 10.3.1999 FILED RETURN OF INCOME FOR THE BLOCK PERI OD DISCLOSING TOTAL UNDISCLOSED INCOME OF RS 4,00,000/-. ASSESSMENT WAS THEREAFTER FRAMED U/S 158BC(C) AND THE TOTAL UNDISCLOSED INCOME WAS D ETERMINED AT RS 23,53,533/-. AGGRIEVED BY THE ORDER OF AO, MATTER W AS CARRIED BEFORE CIT(A) WHO VIDE ORDER DATED 8.6.2001 GRANTED PARTIA L RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE PREFERRED APPEAL AND ASSESSEE ALSO FILED CO. THE APPEAL OF THE REVEN UE IN IT(SS) NO 99/AHD/2001 AND C.O OF THE ASSESSEE IN CO NO 97/AHD /2003 WERE DECIDED BY THE CO-ORDINATE BENCH OF TRIBUNAL BY ORD ER DATED 8.8.2008 WHEREBY THE CO OF THE ASSESSEE WAS DISMISSED. THERE AFTER, ASSESSEE FILED MA AND VIDE ORDER IN MA NO 203/AHD/2009 ORDER DATED 3.7.2013, THE CO OF THE ASSESSEE WAS RECALLED AND THUS THE CO IS NOW BEFORE US. THE GROUNDS RAISED BY THE ASSESSEE IN THE CO READS AS UNDER:- 1. THE STATUTORY REQUIREMENT OF ISSUING NOTICE U/S. 14 3(2) WAS NOT COMPLIED WITHIN THE PRESCRIBED TIME AND HENCE THE A SSESSMENT IS BAD- IN-LAW, VOID-AUTHORITIES BELOW-INITIO. 2. THE APPEAL FILED BY THE DEPARTMENT IS NOT WITHIN TH E TIME GRANTED UNDER THE PROVISO TO SUB-SECTION (3) OF SECTION 253 . 3. THE LD. CIT(A) HAS RIGHTLY GRANTED THE RELIEF ON VA RIOUS ISSUES AND THEREFORE HIS ORDER CANNOT BE SET-ASIDE AS PRAYED B Y THE DEPARTMENT. 4. THOUGH 3 GROUNDS ARE RAISED IN C.O BUT THE ONLY GRO UND IS CHALLENGING THE VALIDITY OF ASSESSMENT. 5. BEFORE US, THE LD AR SUBMITTED THAT THE ASSESSMENT WAS NOT VALID AS THE AO HAD NOT FULFILLED THE REQUIREMENT FOR ISSUANCE O F NOTICE U/S 143(2) WITHIN THE PRESCRIBED TIME AND THEREFORE THE ASSESS MENT WAS BAD IN LAW. THE LD AR SUBMITTED THAT THE ASSESSEE FILED THE RET URN OF INCOME ON 10.3.1999 AND THEREFORE NOTICE U/S 143(2) WAS REQUI RED TO BE SERVED C.O NO 97/AHD/20 13 . BLOCK A.Y. 8 9-90 TO 98- 99 3 WITHIN 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FILED AND THEREFORE NOTICE U/S 143(2) SHOULD HAVE BEEN SE RVED ON OR BEFORE 31.3.2000 BUT THE NOTICE DATED 31.7.2000 WAS SERVED ON THE ASSESSEE FOR THE FIRST TIME ON 7.8.2000 I.E. LATE BY 4 MONTHS AN D 6 DAYS. IT WAS THEREFORE SUBMITTED THAT SINCE THE NOTICE WAS NOT V ALIDLY SERVED, THE ASSESSMENT WAS BAD IN LAW AND THEREFORE NEEDS TO BE QUASHED. HE ALSO PLACED ON RECORD THE COPY OF THE RETURN OF INCOME A ND THE NOTICE U/S 143(2) DATED 31.7.2000. THE LD AR ALSO RELIED ON TH E DECISION OF APEX COURT IN THE CASE OF ACIT VS HOTEL BLUE MOON REPORT ED IN (2010) 321 ITR 362 (SC). HE ALSO SUBMITTED THAT THE GROUND WIT H RESPECT TO VALIDITY OF THE ASSESSMENT WAS NOT RAISED BEFORE AO AND CIT( A) AND THE SAME MAY BE SENT BACK TO CIT(A). THE LD DR ON THE OTHER HAND RELIED ON THE ORDER OF AO AND CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE RETURN FOR THE BL OCK PERIOD WAS FILED ON 10.3.1999 AND IT IS ASSESSEE'S CONTENTION THAT THE NOTICE (DATED 31.7.2000) U/S 143(2) WAS FOR THE FIRST TIME SERVED ON THE ASS ESSEE ON 7.8.2000 AND IT WAS BEYOND THE STIPULATED PERIOD. IT IS ALSO AN ADM ITTED FACT THAT THE AFORESAID CONTENTION WAS NOT RAISED BY THE ASSESSEE BEFORE AO OR CIT(A) BUT WAS RAISED FOR THE FIRST TIME BEFORE THE TRIBUN AL. WE THEREFORE FEEL THAT THE FACTUAL POSITION OF ISSUANCE OF NOTICE NEE DS TO BE ASCERTAINED FROM THE RECORDS. WE THEREFORE REMIT THE ISSUE TO T HE FILE OF CIT(A) TO EXAMINE THE SUBMISSIONS OF THE ASSESSEE IN THE LIGH T OF THE AFORESAID DECISION OF APEX COURT IN THE CASE OF HOTEL BLUE MO ON (SUPRA) AND THEREAFTER DECIDE THE ISSUE AS PER LAW. NEEDLESS TO STATE, THAT CIT(A) SHALL C.O NO 97/AHD/20 13 . BLOCK A.Y. 8 9-90 TO 98- 99 4 GRANT ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE P ARTIES. IN THE RESULT THE GROUND RAISED BY THE ASSESSEE IN CO ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT THE CO OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 11 - 07 - 2014. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,A HMEDABAD