ITO, New Delhi V. M/s. Shankar Radhey Finance & Investment Co. Pvt. Ltd., New Delhi

ITA 143/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6931 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 2
• Next Hearing Date: 12-07-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 08-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 147; 144

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-II: NEW DELHI BEFORE SHRI P.K.BANSAL, ACCOUNTANT MEMBER ITA NO.:- 143/DEL /2015 ASSESSMENT YEAR: 2005-06 ITO WARD 23 (1) NEW DELHI. VS. SHANKAR RADHEY FINANCE & INVESTMENT CO. PVT. LTD. AG-5, SHALIMAR BAGH, NEW DELHI 110 052 PAN AABCS0968H (APPELLANT) (RESPONDENT) O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSES SEE AGAINST THE ORDER OF THE LD. CIT(A) DATED 16.102014. 2. NONE APPEARED ON BEHALF OF THE ASSESEE. I THEREFORE DECIDED TO DISPOSE OFF THE APPEAL AFTER HEARING THE LD. DR. I NOTED THAT IN THIS CASE THE LD. CIT(A) HAS QUASHED THE ASSESSMENT ORDER PAS SED BY THE AO U/S 147 READ WITH SECTION 144 AS THE AO DID NOT ISSUE A NY NOTICE U/S 143(2) AFTER SUBMITTING ALL THE LETTER BY THE ASSESSEE THA T THE ORIGINAL RETURN DEPARTMENT BY : SHRI S.K. MISHRA, SR. DR ASSESSEE BY : NONE DATE OF HEARING 12 /07 /2016 DATE OF PRONOUNCEMENT 14 /07 /2016 ITA NO. 143DEL/2015 2 FILED BY THE ASSESSEE BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S 143(2). THE RELEVANT FINDING OF THE LD. CIT(A) ARE REPRODUCED AS UNDER :- 7.2.4. IT IS OBSERVED THAT THE AO HAD ISSUED NOTIC ES U1S 142(1) ALONG WITH NOTICE US 143(2) OF THE ACT ON 07.01.201 3 IN THE APPELLANT'S CASE. IT IS FURTHER OBSERVED THAT BY TH AT DATE, THE APPELLANT HAD NOT FILED ITS RETURN IN COMPLIANCE OF NOTICE U1S 148 OF THE ACT. THEREFORE, THERE WAS NO BASIS OF ISSUIN G NOTICE U1S 143(2) OF THE ACT ON 07.01.2013 ON THE PART OF THE AO. IT IS A MATTER OF RECORD THAT THE APPELLANT VIDE ITS LETTER DATED 10.01.2013, WHICH WAS RECEIVED BY THE AO ON 11.01.2 013, HAS COMMITTED BEFORE THE AO THAT ITS ORIGINAL RETURN OF INCOME FILED ON 31.03.2005 SHOULD BE TREATED AS RETURN FILED IN COM PLIANCE TO THE NOTICE U1S 148 OF THE ACT ISSUED BY THE AO. IT IS A LSO A MATTER OF FACT THAT NO NOTICE U1S 143(2) OF THE ACT WAS ISSUE D BY THE AO AFTER RECEIPT OF SUCH LETTER FROM THE APPELLANT ON 11.01.2013. THE APPELLANT HAS STRONGLY RELIED UPON THE DECISION OF HON'BLE JURISDICTIONAL ITAT DELHI BENCH 'C', NEW DELHI IN IT A NO. 207/DEL/2010 IN THE CASE OF ACIT VS. HARINDER SACHD EWA DATED 10.9.2010 WHEREIN THE HON'BLE ITA T HELD THAT IT IS WELL SETT LED THAT IN ORDER TO ASSUME JURISDICTION TO MAKE ASSESSM ENT, THE AO IS BOUND TO SERVE THE NOTICE U1S 143(2) OF THE ACT WIT HIN THE SPECIFIED TIME UPON THE ASSESSEE AND IN FAILURE OF WHICH THE ASSESSMENT PROCEEDINGS WOULD BE VOID AB INITIO. THE APPELLANT HAS ALSO RELIED UPON THE DECISION OF HON'BLE JURISDICTI ONAL DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. SOC IETY FOR WORLDWIDE INTERBANK FINANCIAL TELECOMMUNICATION (20 10) 40 DTR (DEL) 17, WHEREIN THE HON'BLE COURT HAS HELD THAT PROVISIONS OF SECTION 143(2) MAKE IT VERY CLEAR THAT NOTICE CAN O NLY BE SERVED AFTER THE AO HAS EXAMINED THE RETURN FILED BY THE A SSESSEE. THE FACTS OF THE CASE AS WELL AS THE SUBMISSIONS FI LED BY THE APPELLANT ARE CAREFULLY EXAMINED. THE JUDICIAL PRONO UNCEMENTS ON THE ISSUE HAS RELIED UPON THE APPELLANT ARE ALSO GO NE THROUGH. IT IS TRUE THAT NO NOTICE U/S 143(2) OF THE ACT WAS ISSUE D BY THE AO AFTER THE APPELLANT'S SUBMISSION THAT ORIGINAL RETU RN OF INCOME FILED BY IT SHOULD BE TREATED AS RETURN FILED BY IT IN CO MPLIANCE TO NOTICE U1S 148 OF THE ACT. THE EARLIER NOTICE U/S 143(2) O F THE ACT ISSUED ITA NO. 143DEL/2015 3 BY THE AO WOULD NOT COME TO THE RESCUE OF VALIDITY OF PROCEEDINGS AS BY THAT DATE, THE APPELLANT HAD NOT COMMITTED BE FORE THE AO REGARDING THE FILING OF ITS RETURN. THE ISSUE OF MA NDATORY NATURE OF NOTICE U/S 143(2) OF THE ACT HAD COME FOR THE EXAMI NATION OF JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF AL PINE ELECTRONICS ASIA PTE. LTD. VS. DIRECTOR GENERAL OF INCOME TAX ( 2012) 341 ITR 247 (DEL), WHEREIN THE HON'BLE COURT HAS HELD AS UNDER: '24. SECTION 143(2) IS APPLICABLE TO PROCEEDINGS UN DER SECTIONS 147/148 OF THE ACT. PROVISO TO SECTION 148 OF THE A CT PROTECTS AND GRANTS LIBERTY TO THE REVENUE TO SERVE NOTICE UNDER SECTION 143(2) OF THE ACT BEFORE PASSING OF THE ASSESSMENT ORDER F OR RETURNS FURNISHED ON OR BEFORE 1ST OCTOBER, 2005. IN RESPEC T OF RETURNS FILED PURSUANT TO NOTICE UNDER SECTION 148 OF THE A CT AFTER 1ST OCTOBER, 2005, IT IS MANDATORY TO SERVE NOTICE UNDE R SECTION 143(2) O[THE ACT. WITHIN THE STIPULATED TIME LIMIT. ' (EMPHASIS SUPPLIED BY ME) IN VIEW OF THE ABOVE, SINCE THE ISSUE IS SQUARELY C OVERED BY THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT OF DE LHI, THE AO'S ACTION IN PASSING THE ASSESSMENT ORDER WITHOUT SERV ING NOTICE U1S 143(2) OF THE ACT CANNOT BE HELD VALID. SINCE THE P ROCEEDINGS ARE INVALIDATED ON ACCOUNT OF NOT MEETING OUT THE MANDA TORY REQUIREMENT OF ISSUANCE OF NOTICE U/S 143(2) OF THE ACT, THE ASSESSMENT ORDER IS LIABLE TO BE QUASHED ON THIS GR OUND ITSELF. ACCORDINGLY, THE ASSESSMENT ORDER PASSED BY THE AO IS QUASHED. THE GROUND OF APPEAL ON THE ISSUE IS THEREFORE ALLO WED. 3. SINCE THE LD. DR EVEN THOUGH RELIED ON THE O RDER OF THE AO COULD NOT BROUGHT TO MY KNOWLEDGE ANY DECISION CONTRARY T O THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF ALPINE ELECTRONICS ASIA PTE. LTD. VS. DIRECTOR GENERAL OF INCOME TAX (2012) 341 ITR 247 (DELHI) I THEREFORE DO NOT FIND ANY ILLEGALITY OR INFIRMITY I N THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY DISMISS THE APPEAL FILED BY REVENUE. ITA NO. 143DEL/2015 4 4. IN THE RESULT, APPEAL FILED BY THE REVENUE STAND S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/07/2016. SD/- (P.K. BANSAL) ACCOUNTANT MEMBER DATED: 14 /07/2016 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI