Shri Salil Choudhury, Raniganj V. ITO, Ward-1(3), Asansol, Asansol

ITA 1681/KOL/2014

• Counselvise Citation: 168123514 RSA 2014
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 18-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: UDAN DASGUPTA
• Keywords: Assessment record
• Section: 143(3); 142(1); 147; 2

Judgement Text

I N THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC , KOLKATA (BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ) ITA NO S . 1681 TO 1682 /KOL/201 4 : ASSTT. YEAR : 2003 - 04 TO 2004 - 05 SRI SALIL CHOUDHURY PAN: A CCPC 5866A VS I.T.O., WARD - 1(3), ASANSOL (APPELLANT) (RESPONDENT) ITA NO S . 1683 TO 1684/KOL/2014 : ASSTT. YEAR : 2003 - 04 TO 2004 - 05 SRI SUKANTA CHOUDHURY PAN: AEHPC 5523K VS I.T.O., WARD - 1(3), ASAN SOL (APPELLANT) (RESPONDENT) ITA NO S . 1685 TO 1686/KOL/2014 : ASSTT. YEAR : 2003 - 04 TO 2004 - 05 SRI PRASANTA CHOUDHURY PAN: AELPC 7613J VS I.T.O., WARD - 1(3), ASANSOL (APPELLANT) (RESPONDENT) ITA N O. 1687/KOL/2014 : ASSTT. YEAR : 2003 - 04 SMT. CHAMPA CHOUDHURY PAN: A EHPC 5460M VS I.T.O., WARD - 1(3), ASANSOL (APPELLANT) (RESPONDENT) A PPELLANT BY : SHRI UDAN DASGUPTA , ADVOCATE RESPO NDENT BY : NONE DATE OF HEARING : 18.08 .2015 DATE OF PRONOUNCEMENT : 18.08 .2015 ORDER ALL THESE APPEALS ARE FILED BY THE ASSESSEE DIRECTED AGAINST THE IDENTICAL ORDER S OF THE COMMISSIONER OF INCOME - TAX (APPEALS), ASANSOL ALL DATED 1 1.06 .2014 FOR THE DIFFERENT ASSESSMEN T YEARS. AS ISSUES ARISING IN ALL THESE APPEALS ARE IDENTICAL IN NATURE, FOR THE SAKE OF CONVEYANCE, THEY ARE HEARD TOGETHER AND DISPOSED OF BY WAY OF THIS COMMON ORDER. 2 ITA NO S . 1681 TO 1687 /KOL/2014 2 . MD. GHAYAS UDDIN, THE LD. JCIT & ADMN., ITA T, KOLKATA MOVED AN APPLICATION SEEKING ADJOURNMENT FOR ALL THE TWENTY CASES POSTED BEFORE ME IN SMC BENCH ON THE GROUND THAT SR.DR WILL BE BUSY IN SETTLEMENT COMMISSION AND OTHER SR. (DR) HAS BEEN NOMINATED FOR TRAINING. I UNDERSTAND THAT SIMILAR PLEA HAS BEEN TAKEN YESTERDAY, THE 17 TH OF AUGUST, 2015, BEFORE THE DIVISION BENCH A OF THE I.T.A.T. I AM A TOURING MEMBER AND THE BENCHES OF THE TRIBUNAL CANNOT BE ALLOWED TO CRASH DAY AFTER DAY DUE TO THIS TYPE OF NON - COOPERATIVE ATTITUDE OF THE DEPARTMENT. HE NCE, THIS LETTER SEEKING BULK ADJOURNMENT OF ALL THE CASES POSTED TO - DAY BEFORE THE BENCH IS REJECTED AND THE CASES ARE DISPOSED ON MERIT EX PARTE QUA THE REVENUE. 3 . I HAVE HEARD SHRI UDAN DASGUPTA, THE LD. COUNSEL FOR THE ASSESSEE. THE MAIN CONTENTI ON OF THE ASSESSEE IS THAT MANDATORY NOTICES UNDER SECTION 143(2) HAVE NOT BEEN ISSUED IN THESE CASE AND UNDER SUCH CIRCUMSTANCES, THE ASSESSMENT ORDERS PASSED UNDER SECTION 147 READ WITH SECTION 143(3) ARE BAD IN LAW. I HAVE PERUSED THE NOTICE GIVEN BY T HE ASSESSING OFFICER ON 10.05.2010 IN THE CASE OF SHRI SALIL KUMAR CHOUDHURY, WHICH IS AT PAGE 10 AND 11 OF THE ASSESSEE S PAPER BOOK , AS WELL AS THE PHOTO COPY OF THE ORDER - SHEET ENTRIES FROM THE ASSESSMENT RECORD. ON 10.05.2010, THE ASSESSING OFFICER IN THE ORDER - SHEET RECORDED AS FOLLOWS: ISSUE FIXATION LETTER TO THE ASSESSEE AS PER DRAFT FIXING THE CASE FOR HEARING ON 20.05.2010 AT 1.30 PM. 3 ITA NO S . 1681 TO 1687 /KOL/2014 3.1 THE LETTER IN QUESTION, IN THE LAST LINE STATES AS FOLLOWS: FORMAL NOTICE UNDER SECTION 142(1) OF THE INCOME TAX ACT IS ENCLOSED FOR YOUR COMPLIANCE . 3.2 IN THIS LETTER DATED 10/03/2010 , CERTAIN DETAILS ARE CALLED FOR BY THE ASSESSING OFFICER. SUCH A LETTER CANNOT BE TREATED AS A MANDATORY NOTICE UNDER SECTION 142(2). AT BEST, IT IS A LETTER EN CLOSED WITH THE NOTICE ISSUED UNDER SECTION 142(1). SIMILAR ARE THE LETTERS AND NOTING AS WELL AS NOTICES IN ALL THE CASES. 3.3 UNDER SUCH CIRCUMSTANCES, I HAVE TO NECESSARILY HOLD THAT THE ASSESSMENT ORDERS PASSED UNDER SECTION 147 READ WITH SECTION 143( 3) OF THE ACT ARE BAD IN LAW , BY APPLYING THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF ACIT - VS - HOTEL BLUE MOON 321 ITR 362 (SC). 3.4 THE LD. COMMISSIONER OF INCOME - TAX ( APPEALS) RELIED ON SECTION 292BB OF THE INCOME TAX ACT AND HELD THAT THE ASSESSEE IS PREVENTED FROM RAISING THIS ISSUE AT THE APPELLATE STAGE, WHEN HE HAS COOPERATED WITH THE ASSESSMENT PROCEEDINGS AND HAS NOT OBJECTED BEFORE THE ASSESSING OFFICER , THE NON - ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT . 3.5 THE HON BLE ALLAHA BAD HIGH COURT IN THE CASE OF CIT & ANR. VS - MUKESH KUMAR AGRAWAL 345 ITR 29 (ALL) AT PARA 6,7 AND 8 HELD AS FOLLOWS: SECTION 292BB IS A RULE OF EVIDENCE, WHICH VALIDATES THE NOTICE IN CERTAIN CIRCUMSTANCES. THE NEWLY INSERTED SECTION 292BB PROVIDES THA T WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDINGS OR CO - OPERATED IN A NY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY 4 ITA NO S . 1681 TO 1687 /KOL/2014 NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED U PON HIM IN TIME IN ACCORD ANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY UNDER THE ACT THAT THE NOTICE WAS NOT SERVED UPON HIM OR NOT SERVED UPON HIM IN TIME OR SERVED UPON HI M IN AN IMPROPER MANNER. IN THE PRESENT CASE, THE TRIBUNAL HAS RETURNED THE FINDINGS THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS ADMITTEDLY NOT ISSUED IN THIS CASE. THE ASSESSING AUTHORITY THUS DID NOT HAVE JURISDICTION TO PROCEED FURTHER AND MAK E ASSESSMENT. WE DO NOT FIND THAT THE NON - CONSIDERATION OF SECTION 292BB, WHICH IS RULE OF EVIDENCE, AND A DEEMING PROVISION TO VALIDATE THE NOTICE IN CERTAIN CIRCUMSTANCES, WILL HAVE ANY EFFECT ON THE JUDGMENT IN HOTEL BLUE MOON [2010] 321 ITR 362 (SC). IT WAS HELD IN HOTEL BLUE MOON S CASE [2010] 321 ITR 362 (SC) THAT THE VERY FOUNDATION OF THE JURISDICTION OF THE ASSESSING OFFICER IS ON THE ISSUANCE OF THE NOTICE UNDER SECTION 143(2). 3.6 RESPECTFULLY FOLLOWING THIS JUDGMENT, I HOLD THAT THE ASSESSME NTS IN QUESTION ARE BAD IN LAW AS THE VERY FOUNDATION OF THE JURISDICTION BY THE ASSESSING OFFICER ARE ON THE ISSUANCE OF NOTICES UNDER SECTION 143(2) AND HE HAS NOT DONE THE SAME. 4 . IN THE RESULT, ALL THE APPEAL S FILED BY THE ASSESSEE S ARE ALLOWED . ORD ER PRONOUNCED IN THE OPEN COURT ON 18/08 /2015. SD/ - ( J. SUDHAKAR REDDY ) ACCOUNTANT MEMBER DA TED: 18/08 /2015 TALUKDAR/SR.PS 5 ITA NO S . 1681 TO 1687 /KOL/2014 COPY OF THE ORDER FORWARDED TO: 1 . SHRI SALIL CHOUDHURY/ SHRI SUKANTA CHOUDHURY/ SHRI PRASANTA CHOUDHURY AND SMT. CHAMPA CHOUDHURY OF 138/2, A.K.SEN ROAD, RANIGANJ, BURDWA, PIN - 713 347 2 ITO, WARD - 1(3), ASANSOL 3 THE CIT(A), 4 5 CIT, 5. D.R. TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA