IAA Hospital P. Ltd., Ludhiana V. ACIT, C-7, Ludhiana

ITA 1579/CHANDI/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3779 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDERSHAN JCIT
• Assessee Lawyers: SATBIR GARG
• Keywords: Validity of assessment; Assessment record; Set aside
• Section: 142(1); 143(2); 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 1579/CHD/2019 / ASSESSMENT YEAR : 2009-10 M/S IAA HOSPITAL P.LTD., C/O DR. B.S.SEKHON, 1881-B/22, ST. NO. 5, MAHARAJ NAGAR, LUDHIANA. VS THE ACIT, CIRCLE-7, LUDHIANA. ./ PAN NO: AABCI2421F / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI SATBIR GARG, C.A. # ! ' / REVENUE BY : SHRI ARVIND SUDERSHAN, JCIT $ % ! &/ DATE OF HEARING : 03.11.2020 '()* ! &/ D ATE OF PRONOUNCEMENT : 06.11.2020 HEARING CONDUCTED VIA WEBEX $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 25.08.20 19 OF CIT(A) LUDHIANA PERTAINING TO 2009-10 ASSESSMENT YE AR IS ASSAILED ON VARIOUS GROUNDS. HOWEVER, AT THE TIME OF HEARING LD. AR CONFINED HIS ARGUMENTS TO GROUND NO. 2 RAISED IN THE PRESENT APPEAL WHICH READS AS UNDER : ITA 1579 /CHD/2019 A.Y. 2009-10 PAGE 2 OF 5 2. THAT LD. CIT (A) HAS ERRED IN LAW AND FACTS OF THE CASE IN UPHOLDING THE ORDER OF LD. AO DESPITE THE FACT THAT ASSESSMENT WAS MADE WITHOUT ISSUING STATUTORY NOTICE U/S 143(2). FINDING OF THE LD. CIT (A) IS AGAINST F ACTS ON RECORD. 2. ATTENTION WAS INVITED TO THE SPECIFIC FINDING OF THE CIT(A) ARRIVED AT IN PARA 5.1.3(II) SO AS TO ARGUE THAT THE SAID FINDING MAY NOT BE UPHELD AS THE SAID AUTHORIT Y HAS FAILED TO DECIDE THE ISSUE AND GIVEN A GENERALISTI C FINDING. THE SPECIFIC PARA IS REPRODUCED BELOW FOR THE SAKE OF COMPLETENESS : 5.1.3 KEEPING IN VIEW THE AFORESAID FACTS, THE AO W AS FULLY JUSTIFIED IN INITIATING THE PROCEEDINGS U/S 147 R.W.S. 148 OF THE IT. ACT. THES E GROUNDS OF APPEAL ARE ACCORDINGLY DISMISSED. (II). NONE ISSUANCE OF NOTICE U/S 143(2) OF THE ACT :- DURING THE APPELLANT PROCEEDING THE APPELLANT HAS SUBMITTED THAT THE NOT ICES U/S 143(2) WAS NEVER ISSUED AND SERVED UPON IT. IN ORDER TO VERIFY THIS CONTENT ION OF THE APPELLANT I HAVE CALLED FOR THE ASSESSMENT RECORD AND FROM THE PERUSAL OF THE S AME IS CAME TO THE-NOTICE OF THE UNDERSIGNED THAT THE NOTICES U/S 143(2) OF THE ACT DATED 09.05. 2016 ALONG WITH THE QUESTIONNAIRE IS AVAILABLE AT PAGE NO. 14 OF THE AP PELLANT RECORD. THE APPELLANT HAS NOT CHALLENGED THE VALIDITY OF ASSESSMENT PROCEEDIN GS , DURING ENTIRE ASSESSMENT PROCEEDINGS, AND KEPT ATTENDING THE PROCEEDINGS . AS SUCH THE CONTENTION OF THE APPELLANT DOES NOT CARRY ANY FORCE AS THE APPELLANT HAS NOT CHALLENGED THE NONE ISSUANCE AND NONE SERVICE OF THE NOTICES U/S 143(2) AND 142(1) OF THE INCOME TAX ACT AT THE TIME OF ASSESSMENT PROCEEDINGS. THEREFORE, T HIS GROUND OF APPEAL STANDS DISMISSED. (EMPHASIS SUPPLIED) 3. THE LEGAL REQUIREMENT, IT WAS SUBMITTED, IS THAT THE NOTICE SHOULD HAVE BEEN ISSUED. MERELY BECAUSE IT IS AVAILABLE ON FILE CANNOT BE SAID TO BE THE LEGAL REQUIREMENT. 3.1 ATTENTION WAS ALSO INVITED TO PAGE 6 OF THE IMP UGNED ORDER WHEREIN THE REPLY OF THE AO IN THE REMAND ITA 1579 /CHD/2019 A.Y. 2009-10 PAGE 3 OF 5 PROCEEDINGS HAS BEEN REPRODUCED IN PARA 4.1 OF THE IMPUGNED ORDER. REFERRING TO THE SAME IT WAS HIS SUBMISSION THAT THE LETTER NO. 1307 DATED 05.02.201 9 OF THE AO MADE AVAILABLE IN THE REMAND PROCEEDINGS, NO CATEGORIC FINDING HAS BEEN GIVEN SAYING THAT NOTICE U/S 143(2) OF THE ACT WAS EVER ISSUED. IT WAS HIS SUBM ISSION THAT HE HAS A COPY OF THE SAID LETTER IN HIS POSSES SION WHEREIN IT IS CLEARLY EVIDENT THAT THE ISSUE HAS BE EN AVOIDED AS NO SUCH REFERENCE TO NOTICE HAVING BEEN ISSUED HAS BEEN MADE. IT WAS SUBMITTED THAT IN THE REMAND PROCEEDINGS, THE AO MERELY HIGHLIGHTS THAT THE ISSU E WAS NOT RAISED DURING THE ASSESSMENT PROCEEDINGS AND HE NCE, URGES THAT THE ASSESSEE SHOULD NOT BE ALLOWED TO RA ISE IT AT THIS STAGE. 3.2 MR. SATBIR GAGR, LD. AR VEHEMENTLY ARGUED THAT AT THE ASSESSMENT STAGE, THERE WAS NO OCCASION TO RAISE TH E GROUND AS HE WAS NOT AWARE AS TO WHAT WAS BEING ENQ UIRED INTO BY THE AO AND HENCE THE FIRST OPPORTUNITY WHEN THE ASSESSEE COULD RAISE SUCH GROUND WAS AT THE FIRST APPELLATE STAGE ONLY, WHICH HAS BEEN DONE. 3.3 THE LD. CIT(A), IT WAS SUBMITTED, HAS FAILED TO ADDRESS THE SPECIFIC LEGAL SHORTCOMING WHICH GOES TO THE RO OT OF THE MATTER. IN THE FINDING ARRIVED AT, IT WAS SUBMITTE D THAT ITA 1579 /CHD/2019 A.Y. 2009-10 PAGE 4 OF 5 THE CIT(A) HAS INFACT NOT ADDRESSED THE SPECIFIC GR OUND. THE SPECIFIC FINDING ARRIVED AT IN PARA 5.3 HIGHLIG HTED AGAIN BY LD. AR WAS REFERRED TO AND IT WAS HIS SUBM ISSION THAT IT JUST SKIRTS THE ISSUE AND DOES NOT DEAL WIT H THE GRIEVANCE OF THE ASSESSEE. 4. THE LD. SR.DR RELIED UPON THE IMPUGNED ORDER. 5. THE PARTIES WERE DIRECTED TO ADDRESS THEIR ARGUM ENTS WHETHER A REMAND BACK TO THE LD. CIT(A) WOULD SATIS FY THE GRIEVANCE AS ADMITTEDLY THE FACT WHETHER NOTICE U/S 143(2) WAS ISSUED OR NOT NEEDS TO BE VERIFIED. ITS MERE E XISTENCE ON THE FILE CANNOT BE SAID TO MEET THE LEGAL REQUIR EMENTS WHICH POSITION STANDS WELL SETTLED BY COURTS. BOTH THE PARTIES AGREED TO REMAND THE ISSUE BACK TO THE FILE OF THE LD. CIT(A). 6. IN THE LIGHT OF THE PRAYER OF THE PARTIES BEFORE THE BENCH AND THE ARGUMENTS ADVANCED ON GOING THROUGH T HE RECORD, I AM OF THE VIEW THAT IN THE INTERESTS OF J USTICE, A CATEGORIC FINDING HAS TO BE AVAILABLE AS TO WHETHER NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE OR NOT. ACCO RDINGLY, THE IMPUGNED ORDER IS SET ASIDE IN TOTO AND THE ISS UES ARE RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIR ECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ADDRES SING ITA 1579 /CHD/2019 A.Y. 2009-10 PAGE 5 OF 5 THE SPECIFIC GRIEVANCE. SAID ORDER WAS PRONOUNCED A T THE TIME OF VIRTUAL HEARING VIA WEBEX. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 6 TH NOVEMBER,2020. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER 8 # / ASSISTANT REGISTRAR