SHRI SHRI MITHILESH KUMAR, RAIPUR (CG) V. THE DY. COMMISSIONER OF INCOME TAX 1(1), RAIPUR (CG)

ITA 168/BIL/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6398 (ITAT-RAIPUR)
• Duration Of Justice: 5 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 04-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record; TDS
• Section: 142(1); 143(2); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI PAWAN SINGH , JUDICIAL MEMBER I.T.A. NO. 168 /RPR/20 16 FOR ( A Y : 20 0 9 - 1 0 ) MITHILESH KUMAR, C/O AMARJEET SINGH BHATIA, TARUN CHATTERJEE GALI, MAIN ROAD, PANDRI, RAIPUR (CG) V S. D CIT - 1 (1), RAIPUR . PAN NO. APIPK 0448 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUNIL KUMAR AGRAWAL , C A . DEPARTMENT BY : SHRI R.K. BARAL , DR DATE OF HEARING : 12 /08/2021. DA TE OF PRONOUNCEMENT : 12 /08/2021. ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH , J UDICIAL M EMBER : 1. TH IS APPEAL BY THE A SSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX ( APPEALS ) - I , HEREINAFTER CALLED AS LD . CIT(A) RAIPUR , DATED 3 0 . 1 1 .201 5 FOR THE A.Y. 20 0 9 - 1 0 . 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL , ENGAGED IN BUSINESS OF TRADING OF LIQUOR. FOR A.Y. 2009 - 10 , ASSESSEE FILED HIS RETURN OF INCOME ON 30/09/2009 DECLARING INCOME OF RS. 10.53 L AKHS . THE CASE OF THE ASSESSEE WAS REOPENED UNDER SECTION 147. A NOTICE UNDER SECTION 148 WAS ISSUED ON 10/12/2012 AND 14/12/2012 . THE ASSESSMENT WAS MITHILESH KUMAR ITA NO. 168 /RPR/20 16 2 REOPENED ON RECORDING REASONS THAT ASSESSEE IN ITS PROFIT AND LOSS ACCOUNT HAS SHOWN PURCHASE OF RS. 5. 5 CRORES , BUT AS PER DETAILS OF TDS CERTIFICATES, PURCHASES WERE OF RS. 6.9 CRORES . ON SERVICE OF NOTICE UNDER SECTION 148, THE ASSESSEE DEMANDED REASONS RECORDED. THE REASONS RECORDED WERE PROVIDED TO THE ASSESSEE. THE AO AFTER SERVICE OF NOTICE UNDER SECTION 142(1) PROCEEDED FOR ASSESSMENT . THE ASSESSMENT WAS COMPLETED ON 30.03.2014 UNDER SECTION 147READ WITH SECTION 143(3). IN THE REASSESSMENT , THE AO MADE ADDITION ON ACCOUNT OF INTEREST EXPENSES OF RS. 3.03 LAKHS , OTHER EXPENSES OF RS. 1.65 LAKHS AN D ADDITION OF RS. 40.03 LAKHS BY ESTIMATING GROSS PROFIT @5% AND THEREBY ADDED THE DIFFERENCE OF GROSS PROFIT DECLARED BY THE ASSESSEE AND THE GROSS PROFIT DETERMINED BY THE AO. AGGRIEVED BY THE ORDER OF THE AO FOR REOPENING AS WELL AS VARIOUS ADDITIONS, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). 3. BEFORE THE LD. CIT(A) THE ASSESSEE BESIDES CHALLENGING THE VALIDITY OF REOPENING AND ALSO RAISED ADDITIONAL GROUND OF APPEAL THAT NO NOTICE UNDER SECTION 143 ( 2) WAS ISSUED AND THE ASSESSMENT ORDER IS NULL AN D VOID . THE LD. CIT(A) RECORDED HIS FINDING AT PAGE NO. 6 OF HIS ORDER WHEREIN IT IS RECORDED THAT THE OBJECTION OF THE ASSESSEE IS MISPLACED AND THAT NO NOTICE UNDER SECTION 143(2) IS TO BE ISSUED IN CASE OF REOPENING. THE LD.CIT(A) ALSO UPHELD THE VARIO US ADDITIONS. FURTHER AGGRIEVED, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THIS TRIBUNAL. MITHILESH KUMAR ITA NO. 168 /RPR/20 16 3 4. THE ASSESSEE HAS ASSAILED THE ORDER OF LD CIT(A) ON LEGAL ISSUES AS WELL AS ON THE VALIDITY OF VARIOUS ADDITIONS. THE ASSESSEE HAS RSIED SPECIFIC GROUND OF A PPEAL THAT THE AO ERRED SERIOUS LEGAL ERROR IN NOT ISSUING TE NOTICE UNDER SECTION 143(2) TI THE COMPLETION OF ASSESSMENT ORDER. 5. WE HAVE HEARD THE SUBMISSIONS OF LD. AUTHORISED REPRESENTATIVE (AR ) OF THE ASSESSEE AND THE LD. DEPARTMENTAL R EPR ESENTATIVE (D R) OF THE REVENUE . THE LD. AR OF THE ASSESSEE SUBMITS THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED TO THE ASSESSEE. IN ABSENCE OF NOTICE UNDER SECTION 143(2), THE ASSESSMENT ORDER IS INVALID AND BAD IN LAW. THE LD.AR OF THE ASSESSEE SUBMITS THAT ASSES SEE HAS OBJECTED FOR NON - ISSUANCE OF NOTICE UNDER SECTION 143(2) BEFORE THE LD. CIT(A) AS WELL, HOWEVER, LD. CIT(A) REJECTED THE GROUND OF APPEAL. THE LD.AR OF THE ASSESSEE SUBMITS THAT NON - ISSUANCE OF NOTICE UNDER SECTION 143 (2) ISSUED IS A JURISDICTIO NAL ISSUE AND IT CANNOT BE CURED AND THE ASSESSMENT ORDER IS LIABLE TO BE QUASHED. 6. ON THE OTHER HAND, LD. DR FOR THE REVENUE SUBMITS THAT ASSESSEE WAS VERY WELL AWARE ABOUT ASSESSMENT PROCEEDINGS. O N OUR SPECIFIC QUE RY WHETHER NOTICE UNDER SECTION 143( 2) WAS ISSUE D OR NOT, THE LD. D R FOR THE REVENUE FAIRLY CONCEDED THAT THERE IS NO EVIDENCE IN THE ASSESSMENT RECORD THAT NOTICE UNDER SECTION 143 ( 2) WAS ISSUED . 7. WE CONSIDERED THE CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THE AS SESSEE RAISED SPECIFIC GROUND OF APPEAL BEFORE THE LD.CIT(A) THAT NO NOTICE UNDER SECTION 143 ( 2) WAS ISSUED BEFORE MITHILESH KUMAR ITA NO. 168 /RPR/20 16 4 FINALIZING THE ASSESSMENT ORDER UNDER SECTION 147. WE FIND THAT THE ASSESSEE IS HESITATED THIS ISSUE BEFORE LD CIT(A) AS WELL THAT IN ABSENCE OF NOTICE UNDER SECTION 143(2) THE ASSESSMENT IS INVALID. IT IS AN ADMITTED POSITION UNDER THE LAW THAT ASSESSMENT ORDER PASSED WITHOUT ISSUING NOTICE UNDER SECTION 143 ( 2) IS INVALID. THEREFORE , SUBSEQUENT ASSESSMENT PROCEEDINGS AND THE SUBSEQUENT ADDITIO N MADE THEREIN IS VOID AB - INITIO . CONSIDERING THE FACT THAT WE HAVE ACCEPT ED THE PRELIMINARY CONTENTION OF THE SUBMISSION OF LD.AR OF THE ASSESSEE. THE ASSESSMENT ORDER IS PASSED WITHOUT ISSUING NOTICE UNDER SECTION 143(2), THEREFORE DISCUSSION ON OTHER GROUNDS OF APPEAL HAVE ACADEMIC. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 12 - 08 - 2021 BY PLACING RESULT ON NOTICE BOARD. S D/ - SD/ - (PRADIP KUMAR KEDIA) ( PAWAN SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER VR S PS DATED: 12 TH AUGUST, 2021 COPY TO: 1. THE ASSESSEE MITHILESH KUMAR, C/O AMARJEET SINGH BHATIA, TARUN CHATTERJEE GALI, MAIN ROAD, PA NDRI, RAIPUR (CG) 2. THE REVENUE D CIT - 1 (1), RAIPUR . 3. LD. CIT(A ) - I , RAIPUR . 4. PR. CIT - I , RAIPUR . 5. THE D.R., RAIPUR. 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY, ITAT, RAIPUR (ON TOUR).