Snehlata Kothari, Kolkata V. ITO, Ward 45(3), Kolkata, Kolkata

ITA 1505/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0908 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 18-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S M TAUHEED
• Assessee Lawyers: MANISH TIWARI
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TR IBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER] I.T.A. NO. 1505/KOL/2016 ASSESSMENT YEAR: 2006-07 SNEHLATA KOTHARI..... ...APPELLANT 28/C, HARMOHAN GHOSH LANE KOLKATA 700 085 [PAN : AFTPK 3258 G] ITO WARD-45(3)...... ....RESPONDENT 3, GOVERNMENT PLACE WEST KOLKATA 700 001 APPEARANCES BY: SHRI MANISH TIWARI, FCA, APPEARED ON BEHALF OF THE ASSESSEE. SHRI S.M. TAUHEED, ADDL. CIT, APPEARING ON BEHALF O F THE REVENUE. DATE OF CONCLUDING THE HEARING : OCTOBER 17, 2017 DATE OF PRONOUNCING THE ORDER : NOVEMBER 30, 2017 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATA (H EREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE AC T), DT. 30/03/2016, FOR THE ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE IS AN INDIVIDUAL AND FILED HER RET URN OF INCOME ON 15/12/2006, DECLARING TOTAL INCOME OF RS.7,73,430/- , FOR THE ASSESSMENT YEAR 205-06. THE ORDER U/S 144 OF THE ACT, WAS PASSED BY THE ASSESSING OFFICER ON 31/12/2008, DETERMINING TOTAL INCOME AT RS.37,50,04 0/-. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL ON VARIOUS GROUND WITH OUT SUCCESS. 3. FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEF ORE US. 4. FIRST WE TAKE UP THE PRELIMINARY ISSUE, AS TO WH ETHER THE MANDATORY NOTICE U/S 143(2), HAS BEEN SERVED ON THE ASSESSEE. THE LD . FIRST APPELLATE AUTHORITY GAVE THE FOLLOWING FACTUAL FINDINGS. THE INCOME TAX OFFI CER WARD-40(3), HAD ISSUED NOTICE U/S 143(2) OF THE ACT, DT. 17/07/2017 AND TH E SAME WAS SERVED ON ONE SHRI 2 I.T.A. NO. 1505/KOL/2016 ASSESSMENT YEAR: 2006-07 SNEHLATA KOTHARI AMIT GOURISARIA, ON 29/10/2007, FIXING THE CASE FOR HEARING ON 4 TH MARCH, 2008, AT 10:00 A.M. 5. THE CONTENTIONS FOR THE LD. COUNSEL FOR THE ASSE SSEE, IS THAT THE ORDER SHEET ENTRY PRODUCED BY THE REVENUE DEMONSTRATES THAT, TH IS ENTRY WAS ON A SINGLE SHEET OF PAPER AND, THEREAFTER, THE ENTIRE PAGE WAS LEFT BLANK AND THE SECOND ENTRY WAS ON 29/07/2008, ON A SEPARATE SHEET OF PAPER AT THE TOP AND, THEREAFTER THE RECORDINGS WERE MADE CONTINUOUSLY. HE SUBMITS THAT, THIS ORDER SHEET ENTRY ON 17/10/2007, ON A SEPARATE SHEET OF PAPER BEING THE LONE ENTRY ON A FULL SHEET OF FRESH PAPER, POINTS TO INSERTION OF AN ENTRY AND TH AT THIS IS NOT IN THE NORMAL COURSE OF PROCEEDINGS. 5.1. IT WAS FURTHER SUBMITTED THAT THERE WAS NO SER VICE OF THE NOTICE ON EITHER THE ASSESSEE OR ANY OF THE FAMILY MEMBERS. IT IS SU BMITTED THAT THE ASSESSEE DOES NOT KNOW AS TO WHO IS AMIT GOURSARIA, AND THAT HE I S NOT AN EMPLOYEE OF THE ASSESSEE NOR IN ANY WAY CONNECTED WITH THE ASSESSEE . HENCE, HE SUBMITS THAT THE SERVICE OF NOTICE IS BAD IN LAW AND HENCE THE ENTIR E ASSESSMENT IS BAD IN LAW. 5.1.1. FOR THIS PROPOSITION, RELIANCE WAS PLACED BY THE ASSESSEE ON A NUMBER OF DECISIONS INCLUDING THE ORDER OF A BENCH OF THE T RIBUNAL IN THE CASE OF DCIT VS. M.K. ENTERPRISES IN I.T.A. NO.181/KOL/2013, ORDER D T. 30/11/1996. 6. THE LD. DR, ON THE OTHER HAND, OPPOSED THE CONTE NTIONS OF THE ASSESSEE AND SUBMITTED THAT THE NOTICE HAS BEEN DULY SERVED ON O NE SHRI AMIT GOURSARIA, AND THAT THE ALLEGATION OF TAMPERING OF ORDER SHEET NOT INGS AND ACKNOWLEDGEMENT SLIP IS WRONG. THE LD. DR, PRODUCED THE ASSESSMENT RECOR D AND SUBMITTED THAT THE ASSESSEE HAS NOT CONTROVERTED THE CONTENTION OF THE ASSESSING OFFICER THAT SHRI AMIT GOURSARIA, IS NOT AN EMPLOYEE OF THE ASSESSEE. RELIANCE WAS PLACED ON THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY. 7. AFTER HEARING RIVAL CONTENTIONS, CONSIDERING THE PAPERS ON RECORD AND THE ORDER OF THE AUTHORITIES BELOW AS WELL AS CASE-LAWS CITED, I HOLD AS FOLLOWS:- 7.1. IT IS A FACT THAT THE ASSESSING OFFICER HAS MA DE A NOTING OF THE FACT OF ISSUE OF NOTICE U/S 143(2) OF THE ACT ON 17/10/2017 IN THE O RDER SHEET ON A SEPARATE SHEET OF PAPER, WHICH CONTAINS ONLY ONE ENTRY. NORMALLY, ORDER SHEET ENTRIES ARE WRITTEN CHRONOLOGICALLY AND ENTIRE SHEETS ARE NOT LEFT BLAN K. THE BALANCE OF THE ORDER SHEET 3 I.T.A. NO. 1505/KOL/2016 ASSESSMENT YEAR: 2006-07 SNEHLATA KOTHARI ENTRIES ARE CHRONOLOGICALLY WRITTEN FROM 29/07/2008 ON A SEPARATE SHEET OF PAPER. IF THIS IS NOT AN INSERTION OF A SHEET OF PAPER, TH E ENTRY ON 29/07/2008, SHOULD HAVE BEEN WRITTEN ON THE SHEET OF PAPER AFTER THE ENTRY OF 17/10/2007. 7.2. BE IT AS IT MAY, THE COPY OF THE ACKNOWLEDGEME NT SLIP PROVIDED BY THE DEPARTMENT SHOWS THAT A NOTICE U/S 143(2) WAS SERVE D ON ONE MR. AMIT GOURSARIA ON 29/10/2017. WHEN THE ASSESSEE SUBMITTED BEFORE T HE ASSESSING OFFICER THAT SHE DOES NOT KNOW THIS GENTLEMAN SHRI AMIT GOURSARI A, AND THAT HE IS NEITHER A RELATIVE NOR AN EMPLOYEE OF THE ASSESSEE NOR WAS HE AUTHORISED TO RECEIVE THE NOTICES OR CORRESPONDENCES ON BEHALF OF THE ASSESSE E, THE BURDEN IS ON THE ASSESSING OFFICER TO PROVE VALID SERVICE OF THE NOT ICE. IN FACT THE ASSESSEE, VIDE LETTER DT. 23/12/2008 AND 26/12/2008, DISPUTED THE SERVICE OF THE NOTICE U/S 143(2) AND THE ASSESSING OFFICER PASSED THE ASSESSM ENT ORDER ON 31/12/2008, WITHOUT ADDRESSING THIS ISSUE. WHEN THE UNDISPUTED FACT IS THAT THE NOTICE IN QUESTION IS SERVED ON SHRI AMIT GOURSARIA, IT WAS T HE DUTY OF THE ASSESSING OFFICER TO DEMONSTRATE, AS TO HOW THIS GENTLEMAN WAS AUTHOR ISED TO RECEIVE THIS NOTICE ON BEHALF OF THE ASSESSEE. AS THE ASSESSING OFFICER HA S FAILED IN THIS REGARD, I HAVE NO HESITATION TO HOLD THAT THERE IS NO VALID SERVICE O F NOTICE U/S 143(2) OF THE ACT. 7.3. IN THE CASE OF DCIT VS. M.K. ENTERPRISES (SUPRA) , UNDER SIMILAR CIRCUMSTANCES IT HAS BEEN HELD AS FOLLOWS:- ..WHEN THE NOTICE U/S 143(2) OF THE ACT, WAS NOT PROPERLY SERVED ON THE ASSESSEE, THE ASSESSMENT ORDER PASSED U/S 144 OF TH E ACT, IS BAD IN LAW. 8. RESPECTFULLY FOLLOWING THE SAME, I UPHOLD THE CO NTENTION OF THE ASSESSEE AND HOLD THAT THE ORDER PASSED U/S 144 OF THE ACT, ON 3 1/12/2008, IS BAD IN LAW. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. KOLKATA, THE 30 TH DAY OF NOVEMBER, 2017. SD/- [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED :30.11.2017 {SC SPS} 4 I.T.A. NO. 1505/KOL/2016 ASSESSMENT YEAR: 2006-07 SNEHLATA KOTHARI COPY OF THE ORDER FORWARDED TO: 1. SNEHLATA KOTHARI 28/C, HARMOHAN GHOSH LANE KOLKATA 700 085 2. ITO WARD-45(3) 3, GOVERNMENT PLACE WEST KOLKATA 700 001 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES