Shri Mirza Qaiser Baig, Aurangabad V. ITO, Aurangabad

ITA 1459/PUN/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56591 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-10-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 22-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Validity of assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO. 191/PN/2010 (ASSTT. YEAR: 2005-06) INCOME TAX OFFICER APPELLANT WD. 2(3) AURANGABAD V. M IRZA QUAISAR BAIG, ... RESPONDENT PROP. HOTEL MUGHAL DARBAR, TOWN HALL, AURANGABAD PAN : NOT AVAILABLE ITA NO . 1459/PN/2009 (ASSTT. YEAR: 2005-06) MIRZA QUAISAR BAIG, ... APPELLANT PROP. HOTEL MUGHAL DARBAR, TOWN HALL, AURANGABAD PAN : NOT AVAILABLE V. INCOME TAX OFFICER RESPONDENT WD. 2(3) AURANGABAD C.O . NO. 19/PN/2011 (ARISING OUT OF IT A NO. 191/PN/2010 ) (ASSTT. YEAR: 2005-06) MIRZA QUAISAR BAIG, ... CROSS OBJECTOR PROP. HOTEL MUGHAL DARBAR, TOWN HALL, AURANGABAD PAN : NOT AVAILABLE V. INCOME TAX OFFICER RESPONDENT WD. 2(3) AURANGABAD ITA . NOS. 191 /PN/2010, 1459/PN/2009 & C.O. NO. 19/PN/2011 MIRZA QUAISAR BAIG A.Y. 2005-06 PAGE OF 4 2 ASSESSEE BY : SHRI. S.N. PURANIK (A.R) DEPARTMENT BY : MS. NEERA MALHOTRA (D.R) DATE OF HEARING :5.10.11 DATE OF PRONOUNCEMENT: .11.11 ORDER PER I.C. SUDHIR, JM IN THE APPEALS PREFERRED BY THE REVENUE, THE RELI EF GIVEN BY THE LD CIT(A) TO THE ASSESSEE BY DELETING THE ADDITION MADE BY THE A .O ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND HAS BEEN QUESTIONED. THE ASSESSEE IN ITS APPEAL HAS QUESTIONED THE FIRST APPELLATE ORDER FIR STLY ON THE GROUND THAT THE LD CIT(A) HAS ERRED IN NOT CANCELLING THE ORDER U/S. 1 44 R.W.S. 147 AS THE SAME IS PASSED BY ITO WITHOUT SERVICES OF NOTICE U/S. 148 A ND U/S. 142(1)/143(2) BEFORE COMPLETING ASSESSMENT. THE ASSESSEE HAS FURTHER Q UESTIONED THE FIRST APPELLATE ORDER ON OTHER GROUNDS. IN CROSS OBJECTION, THE AS SESSEE HAS AGAIN RAISED THE ISSUE OF SERVICE OF NOTICE U/S. 143(2) AND HAS PRAYED FOR DELETION OF THE WHOLE ADDITION MADE BY THE A.O UNDER THE HEAD CAPITAL GAIN. 2. AT THE OUTSET OF HEARING, THE LD. A.R. POINTED O UT THAT NOTICE U/S. 143(2) WHICH IS MANDATORY TO SERVE UPON THE ASSESSEE WAS N EVER SERVED, HENCE ASSESSMENT ORDER FRAMED IN ABSENCE OF NOTICE U/S. 143(2) IS VOID AB-INITIO IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON (2010), 321 ITR 362(SC). THE LD. A.R. ALSO PL ACED RELIANCE ON THE FOLLOWING DECISIONS : 1) MEGHJI KANJI PATEL VS. KUNDANMAL CHAMANLAL MEHTA NI, AIR 1968 BOMBAY 387. 2) GREEN VIEW RADIO SERVICE VS. LAXMIBAI RAMJI AND ANOTHER (1990)-(SC 2)-GJX-0479-SC. 3) MR. RAMRATAN B. SONI VS. ACIT, ITA NOS. 1678/PN/ 07 AND ORS.(A.Y .1998-99 TO 2003-04), ORDER DATED 11 TH FEBRUARY 2011. ITA . NOS. 191 /PN/2010, 1459/PN/2009 & C.O. NO. 19/PN/2011 MIRZA QUAISAR BAIG A.Y. 2005-06 PAGE OF 4 3 THE LD. A.R. ALSO FURNISHED AFFIDAVITS OF ASSESSEE AND HIS FAMILY MEMBERS SWORN ON 2.6.2011 DECLARING THEREIN THAT THE ASSESSEE HAD BE EN ON HAJ YATRA WITH THE FAMILY DURING THE PERIOD FROM 24TH NOVEMBER 2008 TO 10TH JANUARY 2009 AND NONE ELSE WAS THERE AT THEIR HOME DURING THE SAID PERIOD , EVEN AS TEMPORARY GUESTS AND PARTICULARLY ON 16.12.2008. IT HAS BEEN FURTHER DE CLARED THAT THE ASSESSEE HAD NOT AUTHORIZED ANY OF THE DEPONENTS TO RECEIVE ANY OF T HE CORRESPONDENCE/LETTER IN HIS NAME. IT HAS BEEN FURTHER DECLARED THAT SIGN ON RP AD LETTER ACKNOWLEDGMENT ALLEGED TO HAVE BEEN SERVED IS NOT THE SIGNATURE OF ANY OF THE DEPONENTS OR ANY ONE KNOWN TO THEM. 3. THE LD. D.R. OPPOSED THE ABOVE CONTENTION REGARD ING NON-SERVICE OF NOTICE U/S. 143(2) ISSUED TO THE ASSESSEE. 3. SINCE THE ISSUE RAISED REGARDING THE NON-SERVICE OF NOTICE U/S. 143(2) OF THE ACT UPON THE ASSESSEE GOES TO THE ROOT OF THE MATTE R, VERIFICATION OF THE SAME IS NECESSARY TO PROCEED IN THE MATTERS. WE, THEREFORE , SET ASIDE THE ISSUE TO THE FILE OF THE A.O TO EXAMINE THE ABOVE CONTENTION OF THE ASSE SSEE AND THE CONTENT OF THE AFFIDAVIT MENTIONED ABOVE ESPECIALLY THAT SIGNATURE MADE AGAINST ACKNOWLEDGEMENT OF SERVICE OF NOTICE U/S. 143(2) SENT THROUGH RPAD CLAIMED TO HAVE BEEN SERVED UPON ASSESSEE OR ANY MEMBER OF HIS FAMILY OR ANY PE RSONS AUTHORIZED FOR THE PURPOSE BY THE ASSESSEE AND DECIDE THE ISSUE AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE THE MATTER HAS BEEN S ET ASIDE ON THE ISSUE OF SERVICE OF NOTICE U/S. 143(2) UPON THE ASSESSEE, THE OTHER GROUND RAISED IN THE APPEALS AND CROSS OBJECTION HAVE BECOME ACADEMIC AS THE EXISTEN CE OF THE SAME DEPENDS UPON THE VALIDITY OF ASSESSMENT ORDER MADE IN FURTHERANC E OF THE ALLEGED SERVICE OF NOTICE U/S. 143(2) OF THE ACT. 4. BEFORE PARTING WITH THE ORDER, WE WISH TO RECO RD THAT IF ASSESSEE FAILS TO ESTABLISH ITS CONTENTIONS THAT NOTICE ISSUED U/S. 143(2) WAS NOT SERVED UPON THE ASSESSEE OR HIS FAMILY MEMBERS OR ANY PERSON AUTHOR IZED FOR THE PURPOSE. IN THAT ITA . NOS. 191 /PN/2010, 1459/PN/2009 & C.O. NO. 19/PN/2011 MIRZA QUAISAR BAIG A.Y. 2005-06 PAGE OF 4 4 CASE, THE PARTIES WILL BE AT LIBERTY TO MOVE APPLIC ATION BEFORE THE TRIBUNAL TO RESTORE THEIR MATTER FOR HEARING ON OTHER GROUNDS. 5. IN RESULT, APPEALS AND CROSS OBJECTIONS ARE ALLO WED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 29TH NOVEMBER 2011. SD/- SD/- ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER (I.C. SUDHIR ) JUDICIAL MEMBER PUNE, DATED THE 29TH NOVEMBER, 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT -AURANGABAD 4. THE CIT(A)-AURANGABAD 4. THE D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE