Electrocoat Surface Coating Systems Pvt. Ltd., Pune V. Deputy Commissioner of Income-tax,

ITA 1355/PUN/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8552 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-06-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAMESH RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO.1355/PUN/2016 / ASSESSMENT YEAR : 2009-10 ELECTROCOAT SURFACE COATING SYSTEMS PVT. LTD. 3 RD FLOOR, S. NO.243/4, PLOT NO.3, NEW D.P. ROAD, BANER, PUNE- 411 045. PAN : AABCE2130M ....... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(2), PUNE. / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE & SHRI RAMESH RAO REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 31.12.2018 / DATE OF PRONOUNCEMENT : 01.01.2019 / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1, PUNE DATED 31.03.20 16 FOR ASSESSMENT YEAR 2009-10. AS PER GROUNDS OF APPEAL ON R ECORD, ASSESSEE HAS PREFERRED BOTH LEGAL GROUND AS WELL AS GROUNDS ON MERITS. 2 ITA NO.1355/PUN/2016 A.Y.2009-10 2. FIRST WE WOULD ADDRESS LEGAL GROUNDS WHEREIN IT HAS BE EN SUBMITTED BY ASSESSEE THAT SINCE NO NOTICE WAS ISSUED U/S.143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), THEREFORE, THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S.147 OF THE ACT IS BAD IN LAW AND LIABLE TO BE QUASHED . 3. BRIEF FACTS IN THIS CASE ARE THAT THE ASSESSEE-COMPAN Y IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF CUSTOM MADE MACHINERY. IT FILE D ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2009-10 ON 22.09.2009 DECLARIN G TOTAL INCOME OF RS.3,19,44,930/-. THE RETURN WAS ASSESSED U/S.143(1) OF THE ACT. THE ASSESSING OFFICER RECEIVED INFORMATION FROM THE MAHARASHTRA SALES TAX DEPARTMENT THAT THE ASSESSEE WAS BENEFICIARY OF HAWALA T RANSACTIONS. ACCORDINGLY, NOTICE U/S.148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 22.03.2013 AND WAS SERVED ON IT. THE ASSESSING OFFICER HAS RECORDED REASONS TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT BEFORE ISS UE OF NOTICE U/S.148 OF THE ACT. THEREAFTER, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON14.03.2014 U/S.143 (3) R.W.S. 147 OF THE ACT. 4. IT IS TO THIS FACTUAL SITUATION, THE LD. AR FOR THE ASSES SEE VEHEMENTLY ARGUED AT THE TIME OF HEARING THAT BEFORE ASSESSMENT OR DER WAS PASSED, NO NOTICE U/S.143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE. 5. ON THE OTHER HAND, LD. DR FOR THE REVENUE PRODUCED CASE RECORDS AND SUBMITTED THAT NO NOTICE U/S.143(2) OF THE ACT WAS SERVED ON THE ASSESSEE. HOWEVER, LD. DR CONTENDED THAT THERE WAS NO RETURN FILED BY THE ASSESSEE IN PURSUANCE TO NOTICE U/S.148 OF THE ACT AND THEREFORE, TH ERE WAS NO NEED FOR ISSUANCE OF NOTICE U/S.143(2) OF THE ACT. 3 ITA NO.1355/PUN/2016 A.Y.2009-10 6. THE LD. AR PER CONTRA VEHEMENTLY SUBMITTED THAT TH E ORIGINAL RETURN OF INCOME U/S.139(1) OF THE ACT WAS FILED. HOWEVER, THERE WAS NO RETURN FILED IN PURSUANCE TO THE NOTICE U/S.148 OF THE ACT. THE LD. AR PLA CED RELIANCE ON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT-10, MUMBAI VS. MS.MALVIKA ARUN SOMAIYA [2010] 2 TAXMANN.COM 144 ( BOMB AY) WHERE THE FACTS ARE SIMILAR TO THE PRESENT CASE OF THE ASSESSE E, WHEREIN THE ASSESSEE HAS NOT FILED ANY FRESH RETURN IN RESPONSE TO THE NOTICE U/S.148 OF THE ACT. THE ASSESSING OFFICER HAD PASSED ORDER OF ASSESSMENT. THE TRIBUNAL HELD THAT NOTICE U/S.143(3)(2) OUGHT TO HAVE BEEN SERVED UPON ASSES SEE BEFORE TAKING ANY FURTHER PROCEEDINGS AND THEREFORE, ORDER OF ASSESSME NT WAS IN VIOLATION OF STATUTORY PROVISIONS. THE FINDINGS OF THE TRIBUNAL WERE UPHE LD BY THE HON'BLE BOMBAY HIGH COURT IN FAVOUR OF THE ASSESSEE. 7. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE R IVAL CONTENTIONS ON THE LEGAL GROUNDS. WE FIND THAT THE CASE OF THE ASSESSEE IS SQUARELY C OVERED BY THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF C IT-10, MUMBAI VS. MS.MALVIKA ARUN SOMAIYA (SUPRA.) WHERE ALSO, THE ORIGINAL RETU RN WAS FILED BY ASSESSEE. HOWEVER, IN RESPONSE TO THE NOTICE U/S.148 OF T HE ACT, NO RETURN WAS FILED. THE ASSESSING OFFICER DID NOT ISSUE NOTICE U/S.143(2) OF THE ACT BEFORE TAKING ANY FURTHER PROCEEDINGS U/S.148 OF THE AC T. IT WAS HELD BY THE TRIBUNAL THAT SUCH NOTICE U/S.143(2) OF THE ACT OUGHT TO H AVE BEEN SERVED UPON THE ASSESSEE BEFORE TAKING ANY FURTHER PROCEEDINGS AND THEREFORE, ORDER OF ASSESSMENT WAS IN VIOLATION OF STATUTORY PROVISIONS. THIS FINDING OF THE TRIBUNAL WAS UPHELD BY THE HON'BLE BOMBAY HIGH COURT. WE, THEREFORE, RESPECTFULLY FOLLOWING THE AFORESAID JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT, ANSWER THE LEGAL GROUNDS RAIS ED BY THE ASSESSEE 4 ITA NO.1355/PUN/2016 A.Y.2009-10 IN FAVOUR OF THE ASSESSEE AND THEREBY SETTING-ASIDE THE ORDER OF LD. CIT(APPEALS). 8. SINCE WE HAVE ANSWERED THE LEGAL GROUNDS IN FAVOUR OF THE ASSESSEE, GROUNDS ON MERITS BECOME ACADEMIC. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 1 ST DAY OF JANUARY, 2019. SD/- SD/- D. KARUNAKARA RAO PARTHA SARAT HI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 1 ST JANUARY, 2019. SB !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-1, PUNE. 4. THE CIT-1, PUNE. 5. '#$ %%&' , ( &' , )*+ , / DR, ITAT, B BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 5 ITA NO.1355/PUN/2016 A.Y.2009-10 DATE 1 DRAFT DICTATED ON 31 .12.2018 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 01.01 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER