Dr Nandkishor Tulsidas Katore, Nashik V. ACIT, Circle-1, Nashik

ITA 1035/PUN/2011

• Counselvise Citation: 103524514 RSA 2011
• Duration Of Justice: 2 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-02-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 12-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS M S VERMA
• Keywords: Search and seizure; Competent authority
• Section: 143(3); 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHE A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.1035/PN/2011 (ASSESSMENT YEAR : 2002-03) NANDKISHOR TULSIDAS KATORE, SURYA NURSING HOME, BEHIND REGIMENTAL PLAZA, NASHIK ROAD, NASHIK 422 101. PAN : ABIPK9348L . APPELLANT VS. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE- 1, NASHIK. . RESPONDENT ASSESSEE BY : MR. PRAMOD SHINGTE DEPARTMENT BY : MRS. M. S. VERMA DATE OF HEARING : 19-05-2014 DATE OF PRONOUNCEMENT : 30-05-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AG AINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, NASHIK DATED 29.06.2011 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 29.1 0.2009 PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE INCO ME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2002- 03. 2. IN THIS APPEAL, ALTHOUGH THE ASSESSEE HAS RAISED MULTIPLE GROUNDS OF APPEAL BUT THE SOLITARY DISPUTE RAISED DURING THE C OURSE OF HEARING IS TO THE EFFECT THAT THE ACIT, CIRCLE-1, NASHIK, WHO HAS PAS SED THE IMPUGNED ASSESSMENT ORDER DATED 29.10.2009, LACKED PROPER JU RISDICTION TO FRAME THE ASSESSMENT. 3. IN THIS REGARD, THE BRIEF FACTS ARE AS FOLLOWS. ASSESSEE IS A MEDICAL PRACTITIONER AND RUNNING A HOSPITAL UNDER THE NAME KATORE HOSPITAL, NASHIK. ITA NO.1035/PN/2011 A.Y. : 2002-03 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, I.E. 2 002-03, HE FILED A RETURN OF INCOME ON 06.08.2002 DECLARING TOTAL INCOME OF RS.3 ,42,664/-. THE SAID RETURN OF INCOME WAS FILED WITH ITO, WARD 1(3), NAS HIK. A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CONDUCTED AT THE PREM ISES OF THE ASSESSEE ON 16.01.2009 WHICH REVEALED CERTAIN INCRIMINATING MAT ERIAL SHOWING UNDISCLOSED INVESTMENT OF RS.6,05,291/- MADE BY THE ASSESSEE IN CONSTRUCTION OF BUNGALOW, PERTAINED TO ASSESSMENT YEAR 2002-03. IN A STATEMENT RECORDED IN THE COURSE OF SEARCH, ASSESSEE OFFERED SAID INVESTM ENT OF RS.6,05,291/- AS HIS UNDISCLOSED INCOME FOR ASSESSMENT YEAR 2002-03. ON RECEIPT OF THE SAID INFORMATION FROM DDIT (INVESTIGATION), NASHIK, THE ASSESSING OFFICER I.E. ACIT, CIRCLE- 1, NASHIK ISSUED NOTICE U/S 148 OF THE ACT DATED 26.03.2009 REOPENING THE ASSESSMENT FOR ASSESSMENT YEAR 2002-03. IN RES PONSE TO A NOTICE U/S 148 OF THE ACT, ASSESSEE FURNISHED A RETURN OF INCOME O N 26.06.2009 WHEREIN HE OFFERED THE SUM OF RS.6,05,300/- AS HIS ADDITIONAL INCOME, WHICH WAS EARLIER DISCLOSED BY WAY OF HIS STATEMENT IN THE COURSE OF SEARCH. THE ASSESSING OFFICER I.E. ACIT, CIRCLE-1, NASHIK VERIFIED THE SU BMISSIONS OF THE ASSESSEE AND ACCEPTED THE INCOME DECLARED IN THE RETURN OF I NCOME FILED BY THE ASSESSEE IN RESPONSE TO NOTICE U/S 148 OF THE ACT. SUCH ASSESSMENT WAS FINALIZED U/S 143(3) R.W.S. 147 OF THE ACT DATED 29 .10.2009. 4. THE SUBJECT-MATTER OF DISPUTE BEFORE US IS THAT THE ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE WITH ITO, WARD 1(3 ), NASHIK, WHEREAS THE NOTICE OF RE-ASSESSMENT U/S 148 OF THE ACT HAS BEEN ISSUED BY ACIT, CIRCLE-1, NASHIK. ACCORDING TO THE ASSESSEE, IT HAS NOT RECE IVED ANY COMMUNICATION IN REGARD TO TRANSFER OF HIS CASE FROM ITO, WARD 1(3), NASHIK TO ACIT, CIRCLE-1, NASHIK AND THEREFORE, ACIT, CIRCLE-1, NASHIK HAD NO JURISDICTION TO ISSUE NOTICE U/S 148 OF THE ACT ASSESS THE ASSESSEE FOR THE ASSE SSMENT YEAR 2002-03. THE AFORESAID POINT WAS ALSO RAISED BY THE ASSESSEE BEF ORE THE CIT(A) WHO HAS DISMISSED IT ON THE GROUND THAT THE CHANGE OF JURIS DICTION FROM ITO, WARD 1(3), ITA NO.1035/PN/2011 A.Y. : 2002-03 NASHIK TO ACIT, CIRCLE-1, NASHIK WAS AN ADMINISTRAT IVE DECISION TAKEN BY THE INCOME-TAX AUTHORITIES IN ACCORDANCE WITH ACT. 5. BEFORE US, THE ASSESSEE HAS REITERATED SIMILAR O BJECTION AS TAKEN BEFORE THE CIT(A). IN THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS ALSO RELIED UPON THE DECISION OF THE JODHPUR BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. RAJENDER PRASAD GUPTA, (2011) 135 TTJ 9 (JD)(UO) AS ALSO THE JUDGEMENT OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF KUSUM GOYAL VS. ITO & ORS. (2010) 329 ITR 283 TO SUPPORT THE PLEA O F THE ASSESSEE. 6. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE APPEARING FOR THE REVENUE HAS POINTED OUT THAT SUBSEQUENT TO THE FILING OF THE ORIGINAL RETURN OF INCOME FOR ASSESSMENT YEAR 2002-03 WITH I TO, WARD 1(3), NASHIK ON 06.08.2002 FOR THE SUBSEQUENT ASSESSMENT YEARS STAR TING FROM ASSESSMENT YEAR 2006-07 ONWARDS, THE RETURNS OF INCOME HAVE BE EN FILED BY THE ASSESSEE WITH ACIT, CIRCLE-1, NASHIK AND IN THAT REGARD COPI ES OF THE RETURN OF INCOMES HAVE PLACED ON RECORD. FOR ASSESSMENT YEAR 2006-07 , ASSESSEE HAS FILED THE RETURN OF INCOME WITH ACIT, CIRCLE-1, NASHIK ON 13. 10.2006. SIMILARLY, FOR ASSESSMENT YEAR 2007-08, THE RETURN HAS BEEN FILED WITH ACIT, CIRCLE-1, NASHIK ON 30.10.2007. FOR ASSESSMENT YEAR 2008-09, THE SAME HAS BEEN FILED WITH ACIT, CIRCLE-1, NASHIK ON 13.10.2008. SI MILARLY FOR ASSESSMENT YEAR 2009-10 ALSO THE SAME HAS BEEN FILED WITH ACIT, CIR CLE-1, NASHIK ON 24.09.2009. SIMILAR IS THE POSITION WITH REGARD TO RETURN OF INCOME FILED FOR ASSESSMENT YEAR 2010-11. IN ANY CASE, IT IS SOUGHT TO BE POINTED OUT THAT THE JURISDICTION IS BASED ON THE LAST RETURN OF INCOME FILED WHICH AT THE TIME OF ISSUANCE OF NOTICE U/S 148 OF THE ACT WAS WITH ACIT , CIRCLE- 1, NASHIK. IT WAS THEREFORE POINTED OUT THAT AT THE TIME OF ISSUANCE OF NOTICE U/S 148 OF THE ACT I.E. ON 26.03.2009 THE JURISDICTION WAS WITH ACIT, CIRCLE-1, NASHIK WITH WHOM THE ASSESSEE HAS BEEN FILING THE RETURN OF INCOME F ROM THE ASSESSMENT YEAR 2006-07 ONWARDS. FURTHERMORE, IT IS ALSO SOUGHT TO BE POINTED OUT THAT THE ITA NO.1035/PN/2011 A.Y. : 2002-03 ALLOCATION OF WORK AMONGST THE ASSESSING OFFICERS I N RANGE- 1, NASHIK WAS EFFECTED BY WAY OF AN OFFICE ORDER DATED 13.07.2004 ISSUED ON THE INSTITUTIONS OF CHIEF COMMISSIONER, A COPY OF WHICH WAS PLACED O N RECORD. IN THIS CONTEXT, IT WAS POINTED OUT THAT THE ACIT, CIRCLE-1, NASHIK HAD JURISDICTION OVER ASSESSEE SINCE THE INCOME/LOSS RETURNED WAS MORE TH AN RS.5,00,000/-. IT IS ALSO SOUGHT TO BE POINTED OUT THAT OFFICE ORDER DAT ED 13.07.2004 ALSO CLARIFIED THAT ALL OFFICERS OF RAGNE-1, NASHIK WHICH, INTER-A LIA, INCLUDED ITO, WARD 1(3), NASHIK AS WELL AS ACIT, CIRCLE-1, NASHIK, THAT THE SAID TWO OFFICERS SHALL CONTINUE TO HAVE CONCURRENT JURISDICTION OVER ALL T HE CASES FALLING IN THE JURISDICTION OF RANGE-1, NASHIK. IT IS POINTED OUT THAT JURISDICTION OF THE ASSESSEE WAS WITH ACIT, CIRCLE-1, NASHIK SINCE THE INCOME WAS MORE THAN RS.5,00,000/- AND THE ASSESSEE HIMSELF HAS BEEN FIL ING THE RETURN OF INCOME WITH ACIT, CIRCLE-1, NASHIK FROM ASSESSMENT YEAR 20 06-07 ONWARDS. IT IS FURTHER ASSERTED THAT NO OBJECTION WAS RAISED BY TH E ASSESSEE DURING THE ASSESSMENT PROCEEDINGS REGARDING THE JURISDICTION A ND THEREFORE THE PRESENT OBJECTION OF THE ASSESSEE IS UNTENABLE. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. IN OUR CONSIDERED OPINION, THE ISSUE THAT IS LIABLE TO BE EXAMINED IS AS TO WHETHER THE ACIT, CIRCLE-1, NASHIK, WHO HAS PASSED THE IMPUGNED ASSES SMENT ORDER, HAD A VALID JURISDICTION TO ISSUE NOTICE U/S 148 OF THE ACT DAT ED 26.03.2009 AND MAKE THE IMPUGNED ASSESSMENT. SEEN IN THE LIGHT OF THE FACT S BROUGHT OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE, IN OUR VIEW, T HE ACIT, CIRCLE-1, NASHIK HAD JURISDICTION OVER THE ASSESSEE SINCE HE HAD SES IN OVER THE RETURNS OF INCOME FILED WITH HIM BY THE ASSESSEE IN THE PAST. EVIDENTLY, THE ACIT, CIRCLE- 1, NASHIK HAD JURISDICTION OVER THE CASES IN WHICH THE INCOME OR LOSS RETURNED WAS MORE THAN RS.5,00,000/- AND IN CASES WHERE IT W AS LESS THAN RS.5,00,000/- THE SAME VESTED WITH ITO, WARD 1(3), NASHIK. ON 26.03.2009, WHEN ACIT, CIRCLE-1, NASHIK ISSUED NOTICE TO THE AS SESSEE 148 OF THE ACT FOR ASSESSMENT YEAR 2002-03, IT HAD THE REQUISITE JURIS DICTION INASMUCH AS THE LAST ITA NO.1035/PN/2011 A.Y. : 2002-03 RETURN FILED BY THE ASSESSEE AS ON THAT DATE WAS FO R ASSESSMENT YEAR 2008-09, WHICH WAS FILED ON 03.10.2008. THEREFORE, HAVING R EGARD TO THE ADMINISTRATIVE ORDERS ISSUED BY THE INCOME-TAX AUTHORITIES, THE AC IT, CIRCLE-1, NASHIK HAD APPROPRIATE JURISDICTION TO ISSUE NOTICE U/S 148 OF THE ACT ON 26.03.2009 IN ORDER TO REOPEN THE ASSESSMENT AND TAX THE ESCAPED INCOME FOUND IN THE COURSE OF SEARCH U/S 132 OF THE ACT. 8. IN SO FAR AS THE RELIANCE PLACED BY THE COUNSEL OF THE ASSESSEE ON THE DECISION OF THE JODHPUR BENCH OF TRIBUNAL IN THE CA SE OF RAJENDER PRASAD GUPTA (SUPRA) IS CONCERNED, WE HAVE PERUSED THE SAM E AND FIND THE SAME INAPPLICABLE IN THE PRESENT CASE. IN THE CASE BEFO RE THE JODHPUR BENCH OF THE TRIBUNAL, A NOTICE U/S 148 OF THE ACT WAS ISSUED BY THE ITO, DELHI WHEREAS ASSESSEE WAS REGULARLY ASSESSED TO TAX BY ITO, SURA TGARH, RAJASTHAN. IN THIS BACKGROUND, THE TRIBUNAL HELD THAT ITO, DELHI DID N OT ENJOY A VALID JURISDICTION, AND FOUND FAULT WITH ULTIMATE ASSESSMENT MADE BY TH E ITO, SURATGARH WHO DID NOT ISSUE A FRESH NOTICE TO THE ASSESSEE AFTER THE CASE WAS TRANSFERRED TO HIM BY ITO, DELHI. THE TRIBUNAL SPECIFICALLY NOTED THA T AFTER ISSUANCE OF NOTICE U/S 148 OF THE ACT, THE ITO, DELHI TRANSFERRED THE MATT ER TO ITO, SURATGARH. THE TRIBUNAL NOTED THAT ITO, SURATGARH WHO WAS HAVING J URISDICTION ON THE ASSESSEE NEITHER RECORDED THE REASONS TO ISSUE NOTI CE U/S 148 OF THE ACT AND NOR ISSUED ANY NOTICE U/S 148 OF THE ACT BEFORE COM PLETING THE ASSESSMENT. THE AFORESAID FACTUAL POSITION IN THE CASE OF RAJEN DER PRASAD GUPTA (SUPRA) CLEARLY SHOWS THAT THE FACTS IN THE CASE BEFORE US STAND ON AN ENTIRELY DIFFERENT FOOTING. IN THE CASE OF RAJENDER PRASAD GUPTA (SUP RA), THE TRIBUNAL FOUND IT, AS A MATTER OF FACT THAT THE ASSESSING OFFICER ISSU ING NOTICE U/S 148 OF THE ACT, I.E. ITO, DELHI, WAS NOT HAVING JURISDICTION ON THE ASSESSEE SINCE ASSESSEE WAS HITHERTO BEING ASSESSED BY ITO, SURATGARH. HOW EVER, IN THE CASE BEFORE US, WE HAVE NOTED THAT ON THE DATE OF ISSUANCE OF N OTICE U/S 148 OF THE ACT, THE ACIT, CIRCLE-1, NASHIK HAD A VALID JURISDICTION, BE CAUSE HE HAD SESIN OVER THE ASSESSMENT OF THE ASSESSEE INASMUCH AS THE LAST RET URN OF INCOME WAS FILED ITA NO.1035/PN/2011 A.Y. : 2002-03 BY THE ASSESSEE WITH ACIT, CIRCLE-1, NASHIK. THERE FORE, THE RATIO OF THE DECISION OF THE JODHPUR BENCH OF THE TRIBUNAL IN TH E CASE OF RAJENDER PRASAD GUPTA (SUPRA) DOES NOT HELP THE ASSESSEES CASE. S IMILARLY, THE JUDGEMENT OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF KUSU M GOYAL (SUPRA) ALSO STANDS ON A DIFFERENT FOOTING. THE PROPOSITION EME RGING FROM THE JUDGEMENT OF THE HONBLE CALCUTTA HIGH COURT IS THAT IN THE CASE S WHERE INTRA CITY TRANSFER OF CASES TAKE PLACE, CERTAIN STATUTORY FORMALITIES WHI CH INCLUDE ISSUING AN ORDER ARE REQUIRED TO BE COMPLIED WITH AND THE ASSESSING OFFICER ON HIS OWN COULD NOT TRANSFER AN INCOME-TAX FILE TO ANOTHER OFFICER WITHOUT AN ORDER U/S 127(3) OF THE ACT. IN OUR CONSIDERED OPINION, IN THE PRESENT CASE, WE HAVE NOTED THAT COMPETENT AUTHORITY HAS ISSUED THE NECESSARY OFFICE R ORDER ALLOCATING WORK AMONGST THE ASSESSING OFFICERS AT NASHIK AND IT IS NOT A CASE WHERE THE ASSESSING OFFICER ON HIS OWN HAS TRANSFERRED ANY IN COME-TAX FILE TO THE ANOTHER OFFICER, WHICH WAS A SITUATION IN THE CASE BEFORE THE HONBLE HIGH COURT. BEFORE US, IT IS A CASE WHERE THE ASSESSEE, SUBSEQUENT TO FILING OF ORIGINAL RETURN OF INCOME ON 06.08.2002 FOR ASSESSM ENT YEAR 2002-03 WITH ITO, WARD 1(3), NASHIK, HAS BEEN FILING RETURNS FRO M ASSESSMENT YEAR 2006-07 ONWARDS WITH ACIT, CIRCLE-1, NASHIK AND AT THE TIME OF ISSUANCE OF NOTICE U/S 148 OF THE ACT, THE ACIT, CIRCLE-1, NASHIK WAS HAVI NG JURISDICTION OVER THE ASSESSEE. THEREFORE, THE FACTS IN THE PRESENT CASE ARE ENTIRELY DIFFERENT AND THE JUDGEMENT OF THE HONBLE CALCUTTA HIGH COURT DO ES NOT HELP THE CASE OF THE ASSESSEE. 9. IN THE RESULT, WE FIND NO MERIT IN THE PLEA OF T HE ASSESSEE THAT ACIT, CIRCLE-1, NASHIK DID NOT HAVE THE REQUISITE JURISDI CTION TO ISSUE NOTICE U/S 148 OF THE ACT FOR THE CAPTIONED ASSESSMENT YEAR. THUS , ASSESSEE FAILS ON THIS ASPECT. 10. SINCE NO OTHER PLEA HAS BEEN RAISED BY THE ASSE SSEE AND ACCORDINGLY, THE OTHER GROUNDS OF APPEAL RAISED IN THE MEMO OF A PPEAL ARE DISMISSED. ITA NO.1035/PN/2011 A.Y. : 2002-03 11. RESULTANTLY, THE APPEAL OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MAY, 2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED : 30 TH MAY, 2014 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, NASHIK; 4) THE CIT-II, NASHIK; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE