JAGANNATH CHANDU SHETTY, KALYAN V. ITO WD 3(2), KALYAN

ITA 1447/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3150 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: J
• Assessment Year: 2006-2007
• Appeal Filed On: 28-02-2014
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: SANJIV G BRAHME

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAM LAL NEGI , JM ./ ITA NO. 1446&1447 / MUM/20 1 4 ( / ASSESSMENT YEAR : 20 05 - 2006 & 2006 - 2007 ) SHRI JAGANNATH CHANDU SHETTY, C/O M/S HOTEL SHAILAJA BAR & RESTAURANT, GANDHI NAGAR, BALI BAZAR, KALYAN (W) - 421202 VS. ITO WARD - 3(2), KALYAN, CIRCLE - 1, THANE ./ ./ PAN/GIR NO. : A CKPS 4864 J ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SH JAYANT BHATT & SH SANJIV G. BRAHME /REVENUE BY : MISS ANUPAMA SINGLA / DATE OF HEARING : 28 /0 4 /2016 / DATE OF PRONOUNCEMENT 23/06 /201 6 / O R D E R PER R.C.SHARMA (A.M) : TH ESE ARE THE APPEAL S FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), MUMBAI, FOR THE ASSESSMENT YEAR S 2005 - 06 & 2006 - 07 , IN THE MATTER OF ORDER PASSED U/S.143(3)/147 OF THE I.T.ACT . 2. DURING THE COURSE OF HEARI NG LD. AR HAS RAISED ADDITIONAL GROUND, WHICH READS AS UNDER : - UNDER THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE AO HAS ERRED IN NOT ISSUING THE NOTICE U/S.143(2) OF THE ACT AND COMPLETING THE ASSESSMENT PROCEEDING AND THUS THE ORDER PASSED U/S.1 43(3) R.W.S.147 OF THE ACT, BEING BAD IN LAW SHOULD BE ANNULLED. THE ABOVE ADDITIONAL GROUND SO RAISED IS ABSOLUTELY A LEGAL GROUND WHICH GOES TO THE RO OT OF THE ISSUE . I N VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POW ER CORPORATION LTD., 229 ITR ITA NO. 1446&1447/14 2 383(SC), WE ACCEPT THE ADDITIONAL GROUND FOR ADJUDICATION WHICH IS ABSOLUTELY A LEGAL GROUND. 3. IT WAS CONTENDED BY LD. AR THAT NO NOTICE U/S.143(2) WAS ISSUED BY THE AO BEFORE COMPLETION OF ASSESSMENT, WHICH RENDERS THE ENT IRE ASSESSMENT AS INVALID. OUR ATTENTION WAS INVITED TO THE ORDER OF AO & CIT(A), WHEREIN NOWHERE ISSUE OF NOTICE U/S.143(2) WAS MENTIONED. IT WAS CONTENDED BY LD. DR THAT FACT OF ISSUE OF NOTICE U/S.143(2) CAN BE VERIFIED ONLY FROM THE CASE RECORDS OF THE AO. HE FURTHER CONTENDED THAT MERELY NOT MENTIONING THE ISSUE OF NOTICE U/S.143(2) IN THE ASSESSMENT ORDER CANNOT LEAD TO THE CONCLUSION THAT NO NOTICE HAS BEEN ISSUED. 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT ADDITIONAL GROUND SO RAISED IS ABSOLUTELY LEGAL IN NATURE, THEREFORE, WE ACCEPT THE SAME FOR ADJUDICATION. SINCE FACTS WITH REGARD TO ISSUE OF NOTICE U/S.143(2) IS NOT CLEAR FROM THE ORDER OF AO OR CIT(A), THEREFORE, IN ALL FAIRNESS, WE RESTORE BOTH THESE APPEALS BACK TO THE FILE OF AO TO VERIFY THE FACT OF ISSUE OF NOTICE U/S.143(2) BEFORE COMPLETION OF ASSESSMENT. IF THE AO FINDS THAT NOTICE U/S.143(2) WAS NOT ISSUE, WE DIRECT THE AO TO CANCEL THE ASSESSMENT SO FRAMED. 5 . IN THE RESULT, BOTH APPEAL S OF THE ASSESSEE ARE ALLOWED IN PART FOR STAT ISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 23/06 / 201 6 . SD/ - ( RAM LAL NEGI ) SD/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 23/06 /201 6 . . /PKM , . / PS ITA NO. 1446&1447/14 3 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPOND ENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//