DCIT, New Delhi V. M/s National Informatics Centre Services Inc., New Delhi

ITA 1561/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6872 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 11-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJANA
• Assessee Lawyers: MAYANK MOHANKA
• Section: 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER ITA NO. 1561 /DEL/201 3 AY: 20 09 - 10 DY.CIT, CIRCLE 13(1) VS. M/S NATIONAL INFORMATICS CENTRE NEW DELHI SERVICES INC. HALL NO.2&3, 6 TH FLOOR NBCC TOWER, 15, BHIKAJI CAMA PLACE NEW DELHI 110 066 (APPELLANT) (RESPONDENT) APPELLANT BY : SH. P.DAM KANUNJANA, SR.D.R RESPONDENT BY : SH. MAYANK MOHANKA, C.A. ORDER PER J.SUDHAKAR REDDY, A.M. THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX (APPEALS) - XVI, DELHI DATED 21.12.2012 PERTAINING TO THE ASSESSMENT YEAR (A.Y.) 2009 - 10 ON THE FOLLOWING GROUNDS. 1. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN TREATING THE SERVICE OF NOTICE ISSUED U/S 143 (2) OF THE INCOME TAX ACT 1961 AS INVALID AND BARRED BY LIMITATION; 2. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN NOT APPRECIATING THE FACT THAT THE NOTICE U/S 143 (2) OF THE ACT WAS ISSUED UNDER CASS { COMPUTER ASSISTED SCRUTINY SELECTION } WHICH IS SOLELY COMPUTER GENERATED AS PER PROVISIONS LAID BY THE CBDT; 3. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN GIVING RELIEF TO THE ASSESSEE ON PROVISION OF S ECTION 292 BB OF THE ACT NOT APPRECIATING THE FACTS 2 THAT THE ASSESSEE ATTENDED THE CASE AS AND WHEN REQUIRED DURING THE ASSESSMENT PROCEEDINGS; 4. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS BY ASSUMING THAT THE VALIDITY OF RETURN RELATES BACK TO THE DATE OF UPLOADING E - RETURN {WITHOUT DIGITAL SIGNATURES}, WHEREAS THERE IS NO SPECIFICALLY MENTIONED IN THIS REGARD IN THE SCHEME LAID DOWN BY THE CBDT THROUGH PRESS RELEASE DATED 01.09.2010; 5. THE APPELLANT CRAVES TO BE ALLOWED TO ADD ANY FRESH GROUNDS OF AP PEAL AND/OR DELETE OR AMEND ANY OF THE GROUNDS OF APPEAL. 2. WE HAVE HEARS SHRI MAYANK MOHANKA, THE LD.COUNSEL FOR THE ASSESSEE AND SHRI P.DAM KANUNJNA, LD.SR.D.R. ON BEHALF OF THE REVENUE. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF MATERIAL ON RECORD, ORDERS OF LOWER AUTHORITIES, CASE LAWS CITED, WE HOLD AS FOLLOWS. 3. AFTER HEARING RIVAL CONTENTIONS WE FIND THAT THE FIRST APPELLATE AUTHORITY HAS APPLIED THE DECISION OF THE KOCHI BENCH OF THE TRIBUNAL IN THE CAS E OF E.K.K. & CO. VS. ACIT, IN ITA NOS. 138 AND 223/COCH./12 ORDER DT. 16.11.201 2 AND GRANTED RELIEF TO THE ASSESSEE. 3.1. AT PARA 4.5 OF THE ORDER THE LD.CIT(A) HELD AS FOLLOWS. 4.5 THE ABOVE DECISION IS SQUARELY APPLICABLE IN THE INSTANT CASE. PROVISO BELOW SEC 143(2) (II) CLEARLY SAYS THAT NO NOTICE UNDER CLAUSE (II) SHALL BE S ERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. FURTHER, SUB SECTION IB OF SECTION 139 CLEARLY PROVIDES THAT RETURN OF INCOME FURNISHED BY WAY OF E - RETURN SHALL BE DEEMED TO BE RETURN FURNISHED U/S 139(1) AND PROVISIONS OF THE ACT SHALL APPLY ACCORDINGLY. IN VIEW OF ABOVE, IT IS CLEAR THE E - RETURN FILED BY THE APPELLANT ON 30.09.2009 IS A VALID RETURN AND IN VIEW OF THE PROVISO BELOW 143(2)(II) TH E NOTICE U/S 143(2) OUGHT TO HAVE BEEN SERVED ON THE 3 APPELLANT ON OR BEFORE 30.09.2010. THEREFORE, THE NOTICE U/S 143(2) ISSUED BY THE AO ON 05. 09.2011 IS BARRED BY LIMITATION. FURTHER, SINCE THE APPELLANT OBJECTED TO THE INITIATION OF PROCEEDINGS BY TH E A.O. U/S 143 (2) BY ITS LETTER DATED 14.10.2011 BEFORE THE COMPLETION OF ASSESSMENT U/ S 143 (3) ON 21/12/2011, THEREFORE, PROVISIONS OF SECTION 292 BB WILL NOT BE APPLICABLE. IN VIEW OF THE ABOVE FACTUAL AND LEGAL POSITION, AS THERE WAS NO VALID SERVICE OF NOTICE U/S 143(2), THEREFORE, THE ASSESSMENT FRAMED BY THE A.O. WAS INVALID. AS SUCH, ORDER PASSED BY THE AO IS BAD IN LAW AND IT IS QUASHED. AS THE ORDER IS BAD IN LAW, THEREFORE, I DO NOT FIND THE NEED TO CONSIDER THE OTHER GROUNDS OF APPEAL ON MER IT. 4. WE FIND NO INFIRMITY IN THIS ORDER OF THE LD.CIT(A). HENCE WE DISMISS THIS APPEAL OF THE REVENUE BY HOLDING THAT THE NOTICE ISSUED U/S 143(2) OF THE ACT IS BARRED BY LIMITATION. 5 . IN THE RESULT THE APPEAL IS DISMISSED . P RONOUNCED IN THE OPEN C OURT ON 20 TH JULY, 2016 . SD/ - SD/ - ( C.M.GARG) (J.SUDHAKAR REDDY) JUDIDICAL MEMBER ACCOUNTANT MEMBER DATED: THE 20 TH JULY, 2016 *MANGA 4 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR