MAULLI GANGULY, MUMBAI V. ITO 11(1)(2), MUMBAI

ITA 143/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71246 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 07-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DURGESH SUMROTT
• Assessee Lawyers: MRS SANJUKTA CHOWDHURY
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO. 143/MUM/2011 (ASSESSMENT YEAR: 2006-07) MS. MAULLI GANGULY INCOME TAX OFFICER - 11(1)(2) B-503/4, 5TH FLOOR MUMBAI ABOVE PIZZA HUT, LOKHANDWALA VS. COMPLEX, ANDHERI (W) MUMBAI 400053 PAN - ADTPG2381E APPELLANT RESPONDENT APPELLANT BY: MRS. SANJUKTA CHOWDHURY RESPONDENT BY: DURGESH SUMROTT DATE OF HEARING: 07.10.2013 DATE OF PRONOUNCEMENT: 07.10.2013 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL IS FILED AT THE INSTANCE OF THE ASSESSE E AND IT PERTAINS TO A.Y. 2006-07. 2. THE ONLY GROUND RAISED BEFORE US READS AS UNDER: - THE LD. CIT(A) ERRED IN HOLDING THAT NOTICE U/S. 1 43(2) ISSUED BY AFFIXTURE HAD BEEN DULY MADE WITHOUT APPRECIATING T HAT THIRD PARTY EVIDENCE AS FURNISHED BY THE APPELLANT DOES NOT SUG GEST THAT THE SAID NOTICE WAS SERVED AS RECEIVED BY THE APPELLANT, THE IMPUGNED ORDER MAY BE QUASHED. 3. FACTS NECESSARY FOR DISPOSAL OF THE APPEAL ARE STAT ED IN BRIEF. FOR THE YEAR UNDER CONSIDERATION THE ASSESSEE DECLARED PROF ESSIONAL RECEIPT OF ` 22,41,700/- AS AN ACTRESS AND NET INCOME OF ` 9,08,907/- AFTER DEBITING VARIOUS EXPENSES. HAVING REGARD TO THE CIRCUMSTANCE S OF THE CASE THE AO DISALLOWED CERTAIN EXPENSES AND DETERMINED THE TOTA L INCOME AT ` 10,41,230/-. AGGRIEVED, ASSESSEE CONTENDED BEFORE T HE FIRST APPELLATE AUTHORITY THAT THE ADHOC DISALLOWANCE MADE BY THE A O IS NOT IN ACCORDANCE ITA NO. 143/MUM/2011 MS. MAULLI GANGULY 2 WITH LAW. JURISDICTION OF THE AO IN COMPLETING THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT, WITHOUT PROPER SERVICE OF NOTICE UNDER SECTION 143(2), WAS ALSO CHALLENGED BEFORE THE FIRST APPELLATE AUTHORIT Y. IT WAS CONTENDED BEFORE THE CIT(A) THAT THE NOTICE ISSUED UNDER SECTION 143 (2) OF THE ACT WAS NOT SERVED UPON THE ASSESSEE AND, THEREFORE, TIME BARRE D. IN THE ABSENCE OF DUE SERVICE OF VALID NOTICE THE ASSESSMENT HAS TO BE TR EATED AS NULL AND VOID. 4. THE LEARNED CIT(A) OBSERVED THAT THE ASSESSEES AUT HORISED REPRESENTATIVE APPEARED FROM TIME TO TIME AND VARIO US DETAILS WERE ALSO FILED BUT THE CASE OF THE ASSESSEE WAS THAT NOTICE SERVED THROUGH ASSESSEES SERVANT BY AFFIXTURE OF NOTICE, WITHOUT ANY ENQUIRY , WILL NOT AMOUNT TO DUE SERVICE OF NOTICE. AN AFFIDAVIT WAS FILED STATING T HAT NOTICE UNDER SECTION 143(2) WAS NOT SERVED ON HER NOR WAS THE SAID NOTIC E AFFIXED AT HER RESIDENCE. ASSESSEE ALSO FILED AN UNAUTHENTICATED C OPY, PURPORTEDLY FROM THE SOCIETYS REGISTER, TO STATE THAT ON 31.10.2007 NO ONE FROM THE DEPARTMENT VISITED THE PREMISES TO SERVE THE NOTICE BY AFFIXTU RE. THE LEARNED CIT(A) OBSERVED THAT THE WARD INSPECTOR, MS. S.J. PAMALE, HAD SERVED THE NOTICE BY AFFIXTURE ON 31.10.2007 IN THE PRESENCE OF INSPECTO R MS. POORNIMA AND CONSIDERING THE FACT THAT THE ASSESSEE NORMALLY DOE S NOT RECEIVE ANY POST ON HER OWN AND SHE IS UNAVAILABLE AT THE RESIDENCE FOR LONG SPELLS, SERVICE OF NOTICE BY AFFIXTURE IS PROPER. 5. FURTHER AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO PROPER PROOF OF SERVICE OF NOTICE. ON THE OTHER HAND, THE LEARNED D.R. FURNISH ED A COPY OF THE LETTER DATED 20.11.2008 OF THE INCOME TAX OFFICER TO SUBMI T THAT SERVICE OF NOTICE BY MEANS OF AFFIXTURE WAS PROPERLY CARRIED OUT IN T HE LIGHT OF PROVISIONS OF SECTION 143(2) OF THE INCOME TAX ACT AND HENCE THE PROCEEDINGS ARE NOT BARRED BY LIMITATION. IN FACT THE ASSESSEES REPRES ENTATIVE APPEARED FROM TIME TO TIME. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THE AO CATEGORICALLY SUBMITTED THAT THE INS PECTOR HAD SERVED THE NOTICE BY AFFIXTURE ON 31.10.2007. THE ONLY OBJECTI ON OF THE LEARNED COUNSEL IS THAT THE VISITORS REGISTER DOES NOT CONTAIN THE NAME OF THE INSPECTOR. IT ITA NO. 143/MUM/2011 MS. MAULLI GANGULY 3 DESERVES TO BE NOTICED THAT AN INCOME TAX INSPECTOR VISITING THE SOCIETYS PREMISES WOULD NOT ORDINARILY BE TREATED AS A VISI TOR SINCE HE/SHE HAS GONE ON OFFICIAL DUTY AND FOR MERE AFFIXTURE IT CAN NOT BE EXPECTED THAT THE WATCHMAN WOULD ENSURE RECORDING THEIR NAMES IN VISI TORS REGISTER. IT ALSO DESERVES TO BE NOTICED THAT THE A.R. APPEARED FROM TIME TO TIME IN RESPONSE TO THE NOTICE, WHICH ALSO SHOWS THAT THE NOTICE WAS SERVED BY AFFIXTURE. CONSIDERING THE OVERALL CIRCUMSTANCES OF THE CASE W E ARE OF THE VIEW THAT THE ORDER PASSED BY THE LEARNED CIT(A) DOES NOT CALL FO R ANY INTERFERENCE. WE, THEREFORE, AFFIRM THE ORDER OF THE LEARNED CIT(A) A ND DISMISS THE APPEAL FILED BY THE ASSESSEE. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH OCTOBER, 2013. SD/- SD/- (SANJAY ARORA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 7 TH OCTOBER, 2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 3, MUMBAI 4. THE CIT 11, MUMBAI CITY 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.