Shri Udayanan Kunjambo Nilamgol, Kolhapur V. ITO, Wd.-1(2), Kolhapur

ITA 1117/PUN/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 66854 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 29-10-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 06-09-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K.PANDA, ACCOUNTANT MEMBER. ITA.NO.1117/PN/2011 (ASSTT. YEAR : 2002-03) UDAYANAN KUNJAMBO NILAMGOL DATTA SSK KAMGAR CANTEEN, DATTA NAGAR, SHIROL, TAL. SHIROL, KOLHAPUR. .. APPELLANT PAN: AARPN4768P VS. ITO, WARD-1(2), KOLHAPUR. .. RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK DEPARTMENT BY : SMT.SHAILJA RAI, DATE OF HEARING : 03.04.2013 DATE OF PRONOUNCEMENT : 25.04.2013 ORDER PER SHAILENDRA KUMAR YADAV, JM : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) ON FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASST. PASSED U/S.143(3) WAS VALID WITHOUT APPRECIATING THAT NO N OTICE U/S.143(2) WAS ISSUED TO THE ASSESSEE AND HENCE, TH E CONSEQUENTIAL ASST. WAS NULL AND VOID. 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE A. O. WAS NOT ABLE TO PROVE THAT THE NOTICE U/S.143(2) WAS ISSUED TO THE ASSESSEE WITHIN THE PRESCRIBED TIME AND HENCE, HE O UGHT TO HAVE DECLARED THE ASST. AS NULL AND VOID. 3. THE LEARNED CIT(A) ERRED IN HOLDING THAT SINCE THE ASSESSEE HAD APPEARED IN THE ASST. PROCEEDINGS, THE NOTICE U /S.143(2) IS PRESUMED TO HAVE BEEN ISSUED WITHOUT APPRECIATING T HAT NO EVIDENCE WAS SUBMITTED BY THE A.O. TO PROVE THAT TH E NOTICE WAS SERVED AND HENCE, SUCH PRESUMPTION WAS INVALID. 2. THE ASSESSEE HAS ALSO REQUESTED FOR ADMISSION OF FOLLOWING ADDITIONAL GROUND WHICH HAS BEEN RAISED WITHOUT PRE JUDICE TO THE ORIGINAL GROUND OF APPEAL, AS UNDER: 2 THE ASSESSEE SUBMITS THAT THE INCOME ESTIMATED FRO M HOTEL BUSINESS OF RS.4,10,500/- AS AGAINST RS.1,10,000/- IS VERY HIGH AND THE SAME MAY BE REDUCED SUBSTANTIALLY. THE ADMISSION OF THE ABOVE ADDITIONAL GROUND HAS BE EN OBJECTED ON BEHALF OF THE REVENUE. 3. THIS IS A LEGAL GROUND WHICH CAN BE RAISED BEFOR E US. WE ADMIT THE SAME. 4. TAKING ALL FACTS AND CIRCUMSTANCES INTO CONSIDER ATION, THE LD. AUTHORISED REPRESENTATIVE AMONG OTHER BY WAY OF ADD ITIONAL GROUND IS DISPUTING THE QUANTUM OF ESTIMATION AS THE ASSES SING OFFICER HAS ESTIMATED INCOME FROM HOTEL BUSINESS AT RS.4,10,500 /- AS AGAINST RS.1,10,000/- DECLARED BY THE ASSESSEE AFTER REJECT ING THE BOOKS OF ACCOUNTS. TAKING ALL THE FACTS AND CIRCUMSTANCES I NTO CONSIDERATION AND IN THE INTEREST OF JUSTICE, WE RE STRICT THE INCOME FROM HOTEL BUSINESS AT RS.3,00,000/- AS AGAINST RS. 4,10,500/- DONE BY AUTHORITIES BELOW. SINCE WE HAVE DECIDED T HE ISSUE ON MERIT AS STATED ABOVE, WE ARE REFRAINING FROM COMME NTING ON THE TECHNICAL ISSUES RAISED IN THE ORIGINAL APPEAL. MO REOVER, SAME HAS BEEN NOT ADDRESSED TO US AT THE TIME OF HEARING. S O THE GROUNDS NO.1 TO 4 ARE DISMISSED. 5. AS A RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 25 TH DAY OF APRIL, 2013. SD/- SD/- ( R.K.PANDA ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 25 TH APRIL, 2013 3 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ITO, WARD-1(2), KOLHAPUR. 3. THE CIT(A), KOLHAPUR. 4. THE CIT, KOLHAPUR. 5. THE DR B BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.