M/s Sardar Sons, Jalandhar V. The Income Tax Officer, Jalandhar

ITA 171/ASR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7117 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-01-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 06-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT MOHAN JINDAL
• Assessee Lawyers: S K SAMROL
• Keywords: Procedural lapse
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT AND SH. RAVISH SOOD, JUDICIAL MEMBER ITA NO.171/ASR./2017 : ASSTT. YEAR : 2006-07 M/S SARDAR SONS, 42, SAINI COLONY, INDUSTRIAL AREA, JALANDHAR VS INCOME TAX OFFICER, WARD-II(2), JALANDHAR (APPELLANT) (RESPONDENT) PAN NO. AACFS6867P ASSESSEE BY : SH. S. K. SAMROL, ADV. REVENUE BY : SH. LALIT MOHAN JINDAL, DR DATE OF HEARING : 17.01.2019 DATE OF PRONOUNCEMENT : 17.01.2019 ORDER PER N. K. SAINI, VICE PRESIDENT: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.01.2017 OF LD. CIT(A)-1, JALANDHAR. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE UPHOLDING THE ASSESSMENT FRAMED U/S 143(3) OF T HE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BY T HE AO WITHOUT ISSUING THE NOTICE U/S 143(2) OF THE ACT. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE AO FRAME D THE ASSESSMENT U/S 143(3) OF THE ACT AT AN INCOME OF RS .6,20,036/- BY MAKING THE ADDITION OF RS.5,09,076/-. ITA NO. 171/ASR./2017 SARDAR SONS 2 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND CHALLENGED THE JURISDICTION OF THE AO IN FRAMING THE ASSESSMENT WITHOUT ISSUING THE NOTICE U/S 143(2) OF THE ACT. THE LD. CIT(A) DID NOT FIND MERIT IN THE SUBMISSION OF THE AO BY OBSERVING THAT THE ASSESSEE NEVER RAISED THIS ISSUE BEFORE TH E AO AND THAT THE MERE TECHNICALITY OF NON-ISSUANCE OF NOTICE U/S 143 (2) OF THE ACT CANNOT NEGATE THE FACT THAT THE ASSESSEE HAD AVAILE D SEVERAL OPPORTUNITIES WITH RESPECT TO THE OPPORTUNITY THAT SUCH A NOTICE PROVIDES. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL F OR THE ASSESSEE SUBMITTED THAT NON-ISSUANCE OF NOTICE U/S 143(2) OF THE ACT I S NOT A MERE IRREGULARITY RATHER IT IS MANDATORY TO ISSUE THE NOTICE U/S 143( 2) OF THE ACT BEFORE FRAMING THE ASSESSMENT U/S 143(3) OF THE ACT. THE RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF ACIT & ANO THER VS HOTEL BLUE MOON (2010) 321 ITR 362 6. IN HIS RIVAL SUBMISSIONS, THE LD. DR STRONGLY SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, FROM THE OBSERVATIONS OF THE LD. CIT(A), IT IS CLEAR THAT NO NOTICE U/S 143( 2) OF THE ACT WAS ISSUED BEFORE COMPLETING THE ASSESSMENT U/S 143(3) OF THE ACT. ON A SIMILAR ISSUE, THE HONBLE APEX COURT IN THE CASE OF ACIT & ANOTHER VS HOTEL BLUE MOON (2010) 321 ITR 362 (SUPRA) HELD AS UNDER: IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECTION 143(3) READ WITH SECTION 158BC, NOTICE UNDER SECTION 143(2) SHOULD B E ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF THE BLOCK RETUR N. OMISSION ON THE ITA NO. 171/ASR./2017 SARDAR SONS 3 PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UND ER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND IS NOT CURA BLE. THEREFORE, THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) CANN OT BE DISPENSED WITH. 8. WE, THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN THE AFORESAID REFERRED TO CASE ARE OF THE VIEW THAT THE ASSESSMENT FRAMED WITHOUT ISSUING THE MANDATORY NOTICE U/S 143 (2) OF THE ACT WAS NOT VALID. ACCORDINGLY, THE SAME IS QUASHED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. (ORDER PRONOUNCED IN THE COURT ON 17/01/2019) SD/- SD/- (RAVISH SOOD) (N. K. SAINI) JUDICIAL MEMBER V ICE PRESIDENT DATED: 17/01/2019 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR