The DY. CIT.,(OSD)-I, Circle-4, Ahmedabad V. Marck Biosciences Ltd., Ahmedabad

ITA 1506/AHD/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6105 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-08-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 15-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Assessee Lawyers: S N DIVATIA
• Keywords: Reason to believe
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1506/AHD/2014 (ASSESSMENT YEAR: 2005-06) THE DCIT CIRCLE-4, AHMEDABAD V/S MARCK BIOSCIENCES LTD. 5 TH FLOOR, HERITAGE, NEAR GUJARAT VIDHYA PITH, USMANPURA, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AABCM0366P APPELLANT BY : SHRI RAJESH MEENA, SR. D. R. RESPONDENT BY : SHRI S. N. DIVATIA, A.R. ( )/ ORDER DATE OF HEARING : 09 -02-201 8 DATE OF PRONOUNCEMENT : 14 -02-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)- VIII, AHMEDABAD DATED 03.02.2014 PERTAINING TO A.Y. 2005-06. ITA NO. 1506 /AHD/2014 . A.Y. 2005-06 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE REVEN UE IS THAT THE LD. CIT(A) ERRED IN QUASHING THE ASSESSMENT PROCEEDINGS FOR WA NT OF A VALID NOTICE ISSUED U/S. 143(2) WITHOUT APPRECIATING THE FACT THAT THE A.O. HAS VALIDLY REOPENED THE ASSESSMENT PROCEEDINGS U/S. 147 OF THE ACT. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE O RIGINAL ASSESSMENT WAS FRAMED U/S. 143(3) OF THE ACT VIDE ORDER DATED 31.12.2007. 4. THEREAFTER THE COMPLETED ASSESSMENT WAS REOPENED AN D THE REASONS FOR REOPENING THE ASSESSMENT READ AS UNDER:- IN THIS CASE, RETURN OF INCOME WAS FILED ON 30.10.2 005 DECLARING TOTAL INCOME AT RS.NIL WHICH WAS PROCESSED U/S.143(1) OF THE IT ACT . SUBSEQUENTLY, ORDER U/S.!43(3) PASSED ON 31.12.2007 COMPUTING TOTAL INC OME AT RS.NIL. THE ASSESSEE WAS REQUIRED TO PAY TAX UNDER THE PROVISION OF SECT ION 115-JB OF THE ACT AS COMPUTED IN ANNEXURE-1. HOWEVER, THE SAME WAS NOT D ONE AT THE TIME OF ASSESSMENT FOR A.Y.2004-05 AND 2005-06. THIS RESULT ED IN SHORT LEVY OF TAX OF RS.2544527/- INCLUDING INTEREST OF RS.449898/- U/S. 234-B FOR THE 2004-05 AND 2005-06. THUS, I HAVE A REASON TO BELIEVE THAT THE SAID INCO ME CHARGEABLE TO TAX HAS ESCAPED FROM ASSESSMENT WITHIN THE MEANING OF SECTI ON 147 OF THE IT ACT, 1961. 5. THE AFOREMENTIONED REASONS WERE RECORDED ON 20.07.2 010. PRIOR TO THIS ON 21.01.2010, THE A.O. HAD ALREADY RECORDED THE REASO NS IDENTICAL TO WHAT HAS BEEN MENTIONED HEREINABOVE. THESE TWO EXHIBITS ARE AT PAGES 11 & 18 OF THE PAPER BOOK. THREE NOTICES U/S. 148 WERE ISSUED ON T HE FOLLOWING DATES: (I) 12.03.2009 (II) 26.03.2009 (III) 04.10.2010 ITA NO. 1506 /AHD/2014 . A.Y. 2005-06 3 6. THE LAST NOTICE U/S.148 WAS ISSUED ON 04.10.2010. T HE RETURN WAS FILED ON 19.07.2010. THE NOTICES ISSUED U/S. 148 DATED 12.03 .2009 AND 26.03.2009 ARE MUCH EARLIER TO THE DATE OF THE REASONS RECORDED FO R THE RE-OPENING WHICH ARE 20.07.2010 AND 21.01.2010. MOREOVER, NOTICE U/S. 14 3(2) IS DATED 12.03.2010. WHATEVER MAY BE DATE OF THE ISSUE OF NOTICE U/S. 14 8 OF THE ACT, THE NOTICE ISSUED U/S. 143(2) DATED 12.03.2010 IS PRIOR TO THE DATE OF FILING OF THE RETURN WHICH IS 19.07.2010. THIS MEANS THAT THE NOTICE U/S . 143(2) HAS BEEN ISSUED BY THE A.O. PRIOR TO THE DATE OF THE FILING OF THE RET URN. IN OUR UNDERSTANDING OF THE FACT AND THE LAW, NOTICE ISSUED BEFORE FILING OF THE RETURN OF INCOME HAS NO MEANING AND DESERVES TO BE TREATED AS INVALID. THIS ALSO MEANS THAT THE ASSESSMENT HAS BEEN COMPLETED WITHOUT ISSUING VALID NOTICE U/S. 143(2) OF THE ACT AND THEREFORE THE ASSESSMENT HAS TO BE TREATED AS INVALID AND DESERVES TO BE ANNULLED. WE DO NOT FIND ANY REASON TO INTERFERE WI TH THE FINDINGS OF THE LD. CIT(A). APPEAL FILED BY THE REVENUE IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 14- 02- 20 18 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 14 /02/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD