Nitinkumar Dhondiram Kasture, Kolhapur V. Joint Commissioner of Income-tax, Ichalkaranji Range, Ichalkaranji

ITA 117/PUN/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0114 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-09-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 24-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANJIT SHAH
• Section: 143(3); 292BB; 143(2); 139(1)

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.117/PUN/2019 / ASSESSMENT YEAR : 2011-12 NITINKUMAR DHONDIRAM KASTURE, 11/247, STATION ROAD, ICHALKARANJI, DIST. KOLHAPUR-416115. PAN : ABWPK8353K . /APPELLANT VS. JCIT, ICHALKARANJI RANGE, ICHALKARANJI. . / RESPONDENT / APPELLANT BY : SHRI S. N. PURANIK / RESPONDENT BY : SHRI RANJIT SHAH, DR / DATE OF HEARING : 25.09.2019 / DATE OF PRONOUNCEMENT: 25.09.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-2, KOLHAPUR DATED 14.11.2018 FOR THE ASSESSMENT YEAR 2011-12. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAINING THE ADDITION MADE BY THE A.O. U/S 41(1) EVEN THOUGH THE AMOUNT IS SUBSEQUENTLY PAID IN F.Y. 2013-14. THE FACT WAS PRESENT BEFORE THE CIT(A) WHICH HE DID NOT CONSIDERED. THEREFORE, THE DISALLOWANCE MADE BY THE LD. CIT(A) RESULTING INTO ADDITION OF RS.3,08,692/- MAY PLEASE BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE CONTENTION PLACED BEFORE HIM AND THE A.O. THAT THE AMOUNT WAS NOT A TRADING LIABILITY BUT UNSECURED LOAN AND HENCE THE ADDITION MADE U/S 41(1) IS INVALID AND THE SAME MAY BE HELD ACCORDINGLY. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAINING THE ADDITION MADE BY THE A.O. FOR AMOUNT OF RS.74,312/- OUT OF RS.685715 FOR PRESENTATION ARTICLES WITHOUT GIVING ANY SPECIFIC REASONS FOR DISALLOWING AMOUNTS ABOVE RS.20000/-. THE ADDITION MAY PLEASE BE DELETED. ITA NO.117/PUN/2019 - 2 - 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAINING THE ADDITION MADE BY THE A.O. FOR AMOUNT OF RS.29665/- OUT OF RS.593310 FOR TRAVELLING EXPENSES. THE ADDITION MAY PLEASE BE DELETED. 5. THE APPELLANT CRAVES TO LEAVE, ADD/AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE ASSESSEE ALSO RAISED THE ADDITIONAL GROUND , WHICH READS AS UNDER :- ASSESSMENT ORDER PASSED BY THE JT.CIT U/S 143(3) ON 27/01/2014 IS WITHOUT JURISDICTION AND BAD IN LAW, AS THE NOTICE U/S 143(2) WAS NOT SERVED WITHIN STATUTORY TIME PERIOD IN TERMS OF PROVISO TO SEC 143(2) APPELLANT PRAY FOR CANCELLATION/ANNULMENT OF THE ASSESSMENT ORDER. 4. BEFORE ME, AT THE OUTSET, BRINGING MY ATTENTION TO THE ADDITIONAL GROUND (EXTRACTED ABOVE), LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS IS A CASE WHERE THE ASSESSMENT WAS MADE U/S 143(3) OF THE ACT ON THE RETURN OF INCOME FILED BY THE ASSESSEE U/S 139(1) OF THE ACT ON 30.03.2011. REFERRING TO THE DUE DATES, PROVIDED IN SECTION 143(2) READ WITH THE PROVISO, FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT, LD. COUNSEL SUBMITTED THAT 6 MONTHS PERIOD FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN WAS FURNISHED EXPIRED ON 30.09.2012. AGAINST THE SAID DUE DATE, THE ASSESSING OFFICER UNDISPUTEDLY ISSUED THE NOTICE U/S 143(2) OF THE ACT ON 07.05.2013 AND SERVED THE SAME ON THE ASSESSEE ONLY ON 11.05.2013 I.E. MUCH AFTER EXPIRY OF THE SAID DUE DATES (AROUND 8 MONTHS). THEREFORE, THE ASSESSMENT MADE BY THE ASSESSING OFFICER IS NULL AND VOID. IN THIS REGARD, THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE HONBLE SUPREME COURTS JUDGEMENT IN THE CASE OF CIT VS. LAXMAN DAS KHANDELWAL, 108 TAXMANN.COM 183 (SC) DATED 13.08.2019. 5. ON HEARING THE LD. DR FOR THE REVENUE ON THE LEGAL ISSUE ONLY AND, WITHOUT GOING INTO THE MERITS OF THE ADDITIONS MADE BY THE ASSESSING OFFICER ITA NO.117/PUN/2019 - 3 - AND CONFIRMED BY THE CIT(A), I AM OF THE OPINION THAT THE SAID LEGAL ISSUE RAISED BY THE ASSESSEE BEFORE ME BY WAY OF ADDITIONAL GROUND HAS TO BE ALLOWED IN FAVOUR OF THE ASSESSEE. WITH THE ISSUE AND SERVICE OF NOTICE ONLY IN THE MONTH OF MAY 2013, THE PROVISIONS OF THE PROVISO TO SECTION 143(2) OF THE ACT ARE VIOLATED BY THE ASSESSING OFFICER. THIS DEFECT IS AN INCURABLE ONE BY THE PROVISIONS OF SECTION 292BB OF THE ACT. CONSEQUENTLY, THE ASSESSMENT ORDER MADE BY THE ASSESSING OFFICER IS BAD IN LAW AS ARGUED BY THE ASSESSEES AR. ACCORDINGLY, THE LEGAL GROUND RAISED BY THE ASSESSEE IS ALLOWED ON TECHNICAL BASIS. 6. CONSIDERING THE RELIEF GRANTED TO THE ASSESSEE ON LEGAL GROUND, I AM OF THE OPINION, THE ADJUDICATION OF OTHER REGULAR GROUNDS BECOMES ACADEMIC EXERCISE ONLY. ACCORDINGLY, THE OTHER REGULAR GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED AS ACADEMIC. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 25 TH DAY OF SEPTEMBER, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 25 TH SEPTEMBER, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-2, KOLHAPUR; 4. THE PR. CIT-1, KOLHAPUR; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE