Dy. Commissioner of Income Tax, Circle-2(2), Hyderabad V. Hycons Infrastructure (India) Limited, Hyderabad

ITA 1380/Hyd/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5826 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 24-07-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 04-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M H NAIK
• Keywords: Set aside
• Section: 143(3)

Judgement Text

ITA NOS 1380 AND 1621 OF 2017 HYCONS INFRASTRUCTURE LTD HYDERABAD. PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NO.1380/HYD/2017 (ASSESSMENT YEAR: 2012-13) DY. COMMISSIONER OF INCOME TAX, CIRCLE 2(2) HYDERABAD VS M/S.HYCONS INFRASTRUCTURE LTD HYDERABAD PAN: AACCA 8494R (APPELLANT) (RESPONDENT) ITA NO.1621/HYD/2017 (ASSESSMENT YEAR: 2013-14) M/S.HYCONS INFRASTRUCTURE LTD HYDERABAD PAN: AACCA 8494R VS DY. COMMISSIONER OF INCOME TAX, CIRCLE 2(2) HYDERABAD (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI M.H. NAIK, DR FOR ASSESSEE : SHRI MOHD. AFZAL O R D E R PER SMT. P. MADHAVI DEVI, J.M. ITA NO.1380/HYD/2017 IS THE APPEAL FILED BY THE REVENUE FOR THE A.Y 2012-13 WHEREAS THE APPEAL IN I TA NO.1621/HYD/2017 IS FILED BY THE ASSESSEE FOR THE A .Y 2013-14. DATE OF HEARING: 24.07.2019 DATE OF PRONOUNCEMENT : 09.08.2019 ITA NOS 1380 AND 1621 OF 2017 HYCONS INFRASTRUCTURE LTD HYDERABAD. PAGE 2 OF 6 2. BRIEF FACTS OF THE CASE ARE THAT FOR THE A.Y 201 2-13, THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 30.0 9.2012 ADMITTING GROSS TOTAL INCOME OF RS.2,15,35,765/-. T HE CASE WAS SELECTED FOR SCRUTINY THROUGH CASS AND A NOTICE U/S 143(2) WAS ISSUED ON 20.09.2013 BY THE DY. CIT (CENTRAL CIRCLE )-3 HYDERABAD AND THE SAME WAS SERVED ON THE ASSESSEE BY AFFIXTUR E ON 30.09.2013 AT 8-2-293/82/A/406B, ROAD NO.18,M JUBI LEE HILLS, HYDERABAD BEING THE LAST KNOWN ADDRESS I.E. THE AD DRESS THAT HAS BEEN MENTIONED IN THE RETURN OF INCOME FILED BY THE ASSESSEE FOR THE A.YS 2012-13 TO 2014-15 AND THE ADDRESS WHI CH IS ALSO APPEARING IN THE MCA WEBSITE AS REGISTERED OFFICE O F THE ASSESSEE. THEREAFTER, THE CASE RECORDS WERE TRANSFERRED TO TH E AO, CIRCLE 2(2) HYDERABAD, WHO ISSUED ANOTHER NOTICE U/S 143(2) ON THE ASSESSEE ON 20.01.2015. A QUESTIONNAIRE ALONG WITH NOTICE WA S ISSUED TO THE ASSESSEE. IN RESPONSE TO THE SAME, THE ASSESSEE SUBMITTED THAT ANOTHER NOTICE U/S 143(2), SEEMS TO HAVE BEEN ISSUED PRIOR TO 30.09.2013 AND THEREFORE, REQUESTED A COPY OF THE N OTICE ISSUED OR SERVED PRIOR TO 30.09.2013. THE AO PROVIDED THE DET AILS OF THE SERVICE OF NOTICES U/S 143(2) OF THE ACT. THE ASSES SEE, THEREAFTER, RAISED OBJECTIONS THAT THE OFFICER WHO ISSUED THE N OTICE U/S 143(2) DATED 20.09.2013, HAD NO JURISDICTION OVER THE ASSE SSEE. IT WAS ALSO SUBMITTED THAT THE ASSESSEE IS BEING REGULARLY ASSESSED WITH THE AO AT CIRCLE 2 (2) HYDERABAD, FOR THE PAST SEVE RAL YEARS AND MOST OF THE ASSESSMENTS FROM THE A.Y 2004-05 ONWAR DS ARE MADE U/S 143(3) OF THE ACT, WITH THE OFFICER AT CIRCLE-2 (2). THEREFORE, IT WAS SUBMITTED THAT NO VALID NOTICE U/S 143(3) WAS S ERVED ON THE ASSESSEE WITHIN THE TIME ALLOWED, AND HENCE THE ASS ESSMENT IS NOT VALID. THE AO HOWEVER, REJECTED THE ASSESSEES OBJECTIONS AND ITA NOS 1380 AND 1621 OF 2017 HYCONS INFRASTRUCTURE LTD HYDERABAD. PAGE 3 OF 6 PROCEEDED TO MAKE ADDITION AS INCOME FROM OTHER SO URCES TO THE RETURNED INCOME OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT (A) BOTH ON THE QUESTION OF JURISDICTION OF THE AO WHO INITIALLY ISSUED NOTICE U/S 143(2) NOTICE AND ALSO AGAINST TH E MERITS OF THE ADDITIONS MADE. THE CIT (A) AFTER CONSIDERING THE A SSESSEES SUBMISSIONS AT LENGTH OBSERVED THAT THE ASSESSEE WA S NOT SERVED U/S 143(2) OF THE ACT NOR WAS IT NOTIFIED AT ANY PO INT OF TIME AND THEREFORE, NOTICE U/S 143(2) ISSUED BY THE DY. CIT, CENTRAL CIRCLE- 3 IS NOT A VALID NOTICE AS HE WAS NOT THE JURISDICT IONAL OFFICER OF THE ASSESSEE. HE, THEREFORE, HELD THAT THE FIRST NO TICE U/S 143(2) DATED 20.09.2013 IS NOT ISSUED VALIDLY AND FURTHER THAT THE SECOND NOTICE U/S 143(2) IS BEYOND TIME AND THEREFORE, THE CONSEQUENTIAL PROCEEDINGS ARE ALSO NOT VALID. AGAINST THIS DECISI ON OF THE CIT (A) GRANTING RELIEF TO THE ASSESSEE, THE REVENUE IS IN APPEAL BEFORE US. 4. WE FIND THAT UNDER SIMILAR CIRCUMSTANCES, THE ASSESSMENT OF THE ASSESSEE WAS SET ASIDE BY THE CIT (A) FOR THE A.Y 2013-14, BUT IN THE A.Y 2014-15 THE CIT (A) UPH ELD THE VALIDITY OF THE NOTICE ISSUED BY THE DY. CIT, CENTR AL CIRCLE-3, HYDERABAD AND AGAINST THAT ORDER, THE ASSESSEE IS I N APPEAL BEFORE US. 5. THE LEARNED COUNSEL FOR THE ASSESSEE HAS DRAWN O UR ATTENTION TO THE NOTICE U/S 143(2) OF THE ACT, DATE D 20.01.2015 FOR THE A.Y 2013-14 AND THE ADDRESS OF THE PR. A.O IS A CIT, CIRCLE 2(2) HYDERABAD WHO HAS THE ACTUAL JURISDICTION OVER THE ASSESSEE. HE ITA NOS 1380 AND 1621 OF 2017 HYCONS INFRASTRUCTURE LTD HYDERABAD. PAGE 4 OF 6 SUBMITTED THAT WHEN THE AO CENTRAL CIRCLE HAD ISSUE D NOTICE AND SINCE THE SAME COULD NOT BE SERVED, THE SAME WAS SE RVED THROUGH AFFIXTURE. IT IS SUBMITTED THAT THE ADDRESS AT WHIC H THE SAID NOTICE IS ISSUED BY AFFIXTURE ALSO IS NOT THE CORRECT ADDR ESS OF THE ASSESSEE. HE SUBMITTED THAT THE DEPARTMENT HAS OBVI OUSLY NOT TAKEN ANY STEPS TO FIND OUT THE CORRECT ADDRESS OF THE ASSESSEE TO SERVE THE NOTICE AND IT IS ONLY THE NOTICE DATED 20 .01.2015, THAT IS ISSUED NOTICE TO THE CORRECT ADDRESS OF THE ASSESSE E. IT IS SUBMITTED THAT THE NOTICE U/S 143(2) CAN BE ISSUED ONLY WITHIN SIX MONTHS FROM THE END OF THE RELEVANT A.Y AND SINCE T HE CORRECT OFFICER HAVING JURISDICTION OVER THE ASSESSEE, ISSU ED NOTICE U/S 143(2) MUCH BEYOND THE SAID DATE, THE NOTICE U/S 14 3(2) ISSUED FOR BOTH THE A.YS 2012-13 & 2013-14 ARE INVALID AND ACCORDINGLY, THE ASSESSMENTS NEEDS TO BE HELD AS INVALID. 6. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AO AND THE CIT (A) FOR THE A.Y 2013-1 4. 7. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME WITH THE ADDRESS AT JUBILEE HILLS I.E. WITH AO CIRC LE 2(2) HYDERABAD AS IS EVIDENT FROM THE ITR COPIES FILED I N THE PAPER BOOK. FURTHER, THERE IS ALSO NO DISPUTE THAT THE CO RRECT AO WHO IS HAVING JURISDICTION OVER THE ASSESSEE IS THE AO CIR CLE 2(2) HYDERABAD. THE ARGUMENT OF THE LEARNED DR THAT THE AO I.E. DY. CIT, CENTRAL CIRCLE ALSO HAD JURISDICTION OVER THE PAN AND THEREFORE, THE NOTICE HAS BEEN ISSUED INITIALLY BY HIM SHOULD BE CONSIDERED AS A VALID NOTICE IS NOT ACCEPTABLE. AS SOON AS THE DY. ITA NOS 1380 AND 1621 OF 2017 HYCONS INFRASTRUCTURE LTD HYDERABAD. PAGE 5 OF 6 CIT, CENTRAL CIRCLE REALISED THAT HE HAD NO JURISDI CTION OVER THE ASSESSEE, HE SHOULD HAVE TRANSFERRED THE FILES IMME DIATELY TO THE AO HAVING CORRECT JURISDICTION OVER THE ASSESSEE AN D SUCH AN OFFICER SHOULD HAVE ISSUED NOTICE U/S 143(2) OF THE ACT. WE FIND THAT THE DY. CIT, CENTRAL CIRCLE, HAD ISSUED NOTICE U/S 143(2) OF THE ACT JUST BEFORE THE END OF THE LIMITATION PERIO D I.E. IN SEPTEMBER, 2013 AND THEREAFTER, THE AO HAVING JURIS DICTION OVER THE ASSESSEE ISSUED NOTICE ONLY IN JANUARY, 2015. T HUS, CLEARLY THERE IS AN INORDINATE DELAY ON THE PART OF THE AO TO TAKE UP THE ASSESSMENT PROCEEDINGS BY ISSUANCE OF NOTICE U/S 14 3(2) OF THE ACT. FURTHER, AS RIGHTLY POINTED OUT BY THE LEARNED CIT(A) FOR THE A.Y 2012-13, THE ASSESSEES CASE IS NEITHER A SEARC H CASE NOR IS IT A NOTIFIED PERSON, SO THAT THE DY. CIT, CENTRAL CIR CLE GETS JURISDICTION OVER IT. THEREFORE, WE ARE IN AGREEMEN T WITH THE FINDINGS OF THE CIT (A) FOR THE A.Y 2012-13 AND THE REFORE, HOLD THE NOTICE U/S 143(2) FOR BOTH THE A.Y AS INVALID AND T HE CONSEQUENTIAL PROCEEDINGS ALSO AS INVALID. 8. IN THE RESULT, REVENUES APPEAL FOR THE A.Y 2012 -13 IS DISMISSED AND THE ASSESSEES APPEAL FOR THE A.Y 201 3-14 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH AUGUST, 2019. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 9 TH AUGUST, 2019. VINODAN/SPS ITA NOS 1380 AND 1621 OF 2017 HYCONS INFRASTRUCTURE LTD HYDERABAD. PAGE 6 OF 6 COPY TO: 1 DY. CIT, CIRCLE 2(2), ROOM NO.513, 5 TH FLOOR, SIGNATURE TOWERS, KONDAPUR, HYDERABAD 2 M/S. HYCONS INFRASTRUCTURE LTD, C/O SHRI VISAKHA TIMBER & SAW MILLS, SY. NO.183, MASJID BAND, KONDAPUR, HYDERABAD 500084 3 CIT (A)-7 HYDERABAD 4 PR. CIT 2 HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER