ITO, Ward - 46(2), Kolkata, Kolkata V. Shri Gopal Kumar Dharar, Howrah

ITA 1287/KOL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59621 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 30-09-2011
• Court: TRIBUNAL
• Department Lawyers: ANJAN PD ROY LD
• Assessee Lawyers: VIGYANNESHWAR NATH DUTTA LD
• Keywords: Validity of assessment; Procedural lapse
• Section: 143(3)

Judgement Text

, A , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- A CALCUTTA () BEFORE , SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER /AND ! '# ! , SHRI N.VIJAYA KUMARAN, JUDICIAL MEMBER $ / ITA NO. 1287/KOL/2011 %!& '(/ ASSESSMENT YEAR: 2006-07 INCOME TAX OFFICER WARD 46(2), KOLKATA SRI GOPAL KUMAR DHARAR PAN:ADLPD 7936J (*+ / APPELLANT ) - ! - - VERSUS - . (-*+/ RESPONDENT ) *+ . / / FOR THE APPELLANT: / SHRI ANJAN PD.ROY, LD.DR -*+ . / / FOR THE RESPONDENT: / SHRI VIGYANNESHWAR NATH DUTTA, LD.AR . !0 . 1 /DATE OF HEARING : 09-02-2012 2' . 1 /DATE OF PRONOUNCEMENT: 29-02-2012 3 / ORDER ! '# ! , , , , , , ,, , SHRI N. VIJAYA KUMARAN, JUDICIAL MEMBER THIS APPEAL BY THE DEPARTMENT IS FOR THE ASSESSME NT YEAR 2006-07. IT IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), XXX, KOLKATA DATED 29-07- 2011. 2. BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX ( APPEALS) THE ASSESSEE CHALLENGED THE VALIDITY OF ASSESSMENT FOR NON-SERVICE OF NOTICE IS SUED U/S. 143(2) OF THE INCOME-TAX ACT 1961 IN TIME. FOR THIS PROPOSITION THE LEARNED COUNSEL F OR THE ASSESSEE RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT & OR VS. HOTEL BLUEMOON REPORTED IN 320 ITR 362(SC). THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) FOUND THAT THE PROVISIONS OF SECTION 282(1) PROVIDE FOR SERVICE OF NOTICE AS IT WERE A SUMMONS ISSUED BY COURT UNDER THE CODE OF CIVIL PROCEDURE AND SINCE THIS NOTICE WAS S ERVED BY AFFIXTURE THE SAME IS GOVERNED BY THE CODE OF CIVIL PROCEDURE WHICH PROVIDES FOR SERV ICE BY AFFIXTURE ONLY IF ALL AVENUES OF SERVICE IS EXHAUSTED AND THAT THE AUTHORITIES MUST RECORD THE REASONS FOR SERVING OF NOTICE BY ITA NO. 1287/KOL/2011-A_NVK 2 AFFIXATION. SIMULTANEOUSLY, TO AFFIXTURE, THE SUMM ONS SHOULD ALSO BE SERVED BY REGISTER POST WITH THE ACKNOWLEDGEMENT DUE I.E A COPY OF NOTICE S ERVED BY AFFIXTURE IS ALSO REQUIRED TO BE SENT BY REGISTERED POST WITH ACKNOWLEDGEMENT DUE WH EN IT IS SERVED BY AFFIXTURE. BUT THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS) FOUND THAT NO SUCH COPY OF NOTICE CLAIMED TO BE SERVED BY AFFIXTURE WAS SENT TO THE APPELLANT T HROUGH SPEED POST. THEREFORE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) CAME TO VIEW THAT THE SERVICE OF NOTICE WAS NOT IN ACCORDANCE WITH THE CODE OF CIVIL PROCEDURE [CPC]. THE INSPECTOR, WHO HAS SERVED NOTICE BY AFFIXTURE HAS NOT TAKEN ANY LOCAL WITNESS. THE LE ARNED COMMISSIONER OF INCOME-TAX(APPEALS) CAME TO THE CONCLUSION THAT THIS NOTICE WAS NOT SEN T AND SERVED WITHIN TIME. FINALLY, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FOUND THAT TH E IMPROPER SERVICE OF NOTICE U/S. 143(2) THROUGH AFFIXTURE THUS INVALIDATES THE PROCEEDINGS INITIATED THROUGH THIS NOTICE AND NON-SERVICE OF NOTICE WITHIN THE TIME PERIOD ALLOWED U/S. 143(2 ) OF THE I.T. ACT 1961 IS NOT A PROCEDURAL LAPSE WHICH CAN BE CURED. THEREFORE, HE HELD THAT T HE ASSESSMENT PROCEEDINGS ARE INVALID. 3. AGGRIEVED BY THIS, NOW THE DEPARTMENT IS IN APPE AL BEFORE US AND RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(APPEALS) KOLKATA IS JUSTIFIED IN TREATING TH E SERVICE OF NOTICE INVALID WHEN THE ASSESSEE APPEARED ON A NUMBER OF O CCASIONS WITHOUT QUESTING THE VALIDITY OF SERVICE IN COMPL IANCE OF THE SAID NOTICE. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AN ASSESSEE WHO COMPLIED WITH A NOTICE, CAN CHALLENGE IT AFTERWARDS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. IT IS THE ASSESSMENT U/S. 143(3). FOR MAKING THE AS SESSMENT U/S. 143(3) NOTICE U/S. 143(2) MUST HAVE BEEN ISSUED AND SERVED ON THE ASSESSEE WITHIN TIME ALLOWED. ONLY AFTER THAT THE ASSESSING OFFICER CAN ASSUME JURISDICTION TO COMPLETE THE ASS ESSMENT. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS GIVEN CLEAR DETAIL ATTEMPT ED AFFIXTURE TO NOTICE. HOWEVER, IT IS ESTABLISHED THAT NO VALID SERVICE OF NOTICE WAS MAD E U/S. 143(2) IN TIME. BEFORE US THE LEARNED DR COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE TO SH OW THAT THE NOTICE CONTEMPLATED U/S. 143(2) HAS BEEN ISSUED WITHIN TIME AND LEFT THE OF FICE IS NOT AVAILABLE SO AS TO TAKE A CONTRARY STAND THAN THE ONE ARRIVED BY THE LEARNED COMMISSI ONER OF INCOME-TAX (APPEALS). THE ITA NO. 1287/KOL/2011-A_NVK 3 DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F HOTEL BLUEMOON (SUPRA) CLEARLY LAID DOWN THE RATIO THAT THIS IS NOT CURABLE IRREGULARIT Y. HENCE, WE CONFIRM THE FINDING OF THE LEARNED COMMISSIONER OF INCOME-TA(APPEALS) BY REJE CTING THE GROUNDS RAISED BY THE DEPARTMENT. 5. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMIS SED. 4 3 5 ! 6 47 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 29 -02-2012 SD/- SD/- ( , ) ( PRAMOD KUMAR, ACCOUNTANT MEMBER) ( ! '# ! , ) ( N.VIJAYKUMARAN, JUDICIAL MEMBER ) DATED: 29-02-2012 ORDER PRONOUNCED SD/- SD/- [JM] [AM] 29/2/12 29/2 *PP SR.PS/ 3 . %%' 8''/ COPY OF THE ORDER FORWARDED TO: 1. *+ /APPELLANT- I.T.O W 46(2) 3 GOVT. PL, 2 ND FL., KOL-1. 2 -*+ / RESPONDENT : SRI GOPAL KUMAR DHARAR 32D/6 MOHANLA L BAHAIWALA ROAD, P.O BALLY, HOWRAH- 711201. 3. %3!/ CIT, 4. %3! ()/ CIT(A), 5. ?%6 %!/ DR, KOLKATA BENCHES, KOLKATA [-' %/ TRUE COPY] 3!/ BY ORDER, 4 # /ASSTT REGISTRAR