Smt. Tarlikaben J. Mehta, Ahmedabad V. The CIT-V, Ahmedabad

ITA 1482/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1884 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 07-04-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIBHA BHALLA
• Assessee Lawyers: A P NANAVATI
• Section: 143(3); 263; 154

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA.NO.1482/AHD/2015 / ASSTT. YEAR: 2009-10 SMT.TARLIKABEN J. MEHTA NANAVATY & ASSOCIATES 1/18, 3 RD FLOOR, NARAYAN CHAMBERS ASHRAM ROAD AHMEDABAD 380 009. VS ITO, WARD - 5(2)(4) AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI A.P. NANAVATI, AR REVENUE BY : SM T .VIBHA BHALLA, CIT - DR / DATE OF HEARING : 07/04/2016 / DATE OF PRONOUNCEMENT: 07/04/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF THE LD.CIT DATED 16.3.2015 PASSED FOR THE ASSTT.YEAR 2009-10 U NDER SECTION 263 OF THE INCOME TAX ACT, 1961. 2. THOUGH THE ASSESSEE HAS TAKEN FOUR GROUNDS OF AP PEAL, BUT HER GRIEVANCE REVOLVES AROUND SINGLE ISSUE, WHEREBY, SH E PLEADED THAT THE LD.CIT HAS ERRED IN TAKING COGNIZANCE UNDER SECTION 263 OF THE ACT WITHOUT EFFECTING SERVICE OF SHOW CAUSE NOTICE, BY SETTING ASIDE THE ASSESSMENT ORDER AND DIRECTING THE AO TO REFRAME TH E ASSESSMENT ORDER. ITA NO.1482/AHD/2015 2 THE LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OUTSET , SUBMITTED THAT BEFORE TAKING COGNIZANCE OF THE PROCEEDINGS UNDER SECTION 263 OF THE INCOME TAX ACT, 1961, THE LD.COMMISSIONER HAS NOT ISSUED A NY SHOW CAUSE NOTICE TO THE ASSESSEE. IN ORDER TO VERIFY THIS CL AIM OF THE ASSESSEE, ON THE LAST DATE OF HEARING, WE HAVE REQUIRED THE LD.C IT-DR TO PRODUCE ORIGINAL RECORD OF THE CIT-PROCEEDINGS TAKEN UNDER SECTION 263 OF THE ACT. THE LD.DR HAS PLACED RECORD BEFORE THE BENCH. 3. IT EMERGES OUT FROM THE RECORD THAT THE ASSESSEE HAS FILED HER RETURN OF INCOME ON 29.9.2000 DECLARING TOTAL INCOME AT RS .11,56,540/- AND THE ASSESSMENT ORDER WAS PASSED ON 26.12.2004 UNDER SEC TION 143(3) OF THE ACT, WHEREBY THE INCOME OF THE ASSESSEE WAS DETERMI NED AT RS.77,86,570/-. THE ASSESSEE HAD FILED AN APPLICAT ION UNDER SECTION 154 OF THE ACT FOR RECTIFICATION OF THE ASSESSMENT ORDE R. THE LD.AO HAS PASSED AN UNDER SECTION 154 ON 8.10.2014 WHEREBY HE REDUCED THE TAXABLE INCOME TO THE FIGURE OF RS.56,26,900/-. IT APPEARS THAT AGAINST THIS ACTION OF THE AO, A PROPOSAL WAS MADE BY THE J CIT TO INITIATE ACTION UNDER SECTION 263 OF THE ACT. THIS PROPOSAL WAS SE NT TO THE COMMISSIONER ON 30.1.2015. THE LD. COMMISSIONER AF TER PERUSAL OF THE RECORD FORMED AN OPINION THAT ACTION UNDER SECTION 263 OF THE ACT IS REQUIRED TO BE TAKEN AGAINST THE ASSESSEE. COPY OF THE SHOW CAUSE NOTICE DATED 19.2.2014 IS AVAILABLE IN THE RECORD. BUT ON PERUSAL OF THE RECORD, WE DO NOT FIND ANY INTERIM ORDER SHEET ENTRY EXHIBI TING THE FACT THAT EVER ANY EFFORT WAS MADE TO EFFECT THE SERVICE OF NOTICE UPON THE ASSESSEE. THERE IS AN ACKNOWLEDGEMENT OF POSTAL AUTHORITIES D ATED 24.3.2015, BUT THE ORDER UNDER SECTION 263 WAS PASSED ON 16.3.2015 , THEREFORE, IT APPEARS THAT VIDE THIS ACKNOWLEDGEMENT IMPUGNED ORD ER PASSED UNDER ITA NO.1482/AHD/2015 3 SECTION 263 WAS SERVED UPON THE ASSESSEE. WE HAVE PERUSED THIS RECORD WITH THE ASSISTANCE OF BOTH THE REPRESENTATIVES. W E DO NOT FIND ANY EVIDENCE FOR SERVICE OF SHOW CAUSE NOTICE UPON THE ASSESSEE. THEREFORE, IN OUR OPINION, THE IMPUGNED ORDER IS NOT SUSTAINAB LE. WITHOUT CONFRONTING THE ASSESSEE WITH ACTION PROPOSED UNDER SECTION 263, NO ACTION CAN BE TAKEN AGAINST HER. WE ALLOW THE APPE AL OF THE ASSESSEE AND SET ASIDE ORDER OF THE LD.COMMISSIONER PASSED UNDER SECTION 263 OF THE ACT. THE ORIGINAL RECORD IS BEING RETURNED TO TH E LD.REPRESENTATIVE OF THE DEPARTMENT. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 7 TH APRIL, 2016 AT AHMEDABAD. SD/- SD/- ( N.K. BILLAIYA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER