Sherman Ali Ahmed, Guwahati V. Income Tax Officer, Ward-1(2), Guwahati

ITA 176/GTY/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9025 (ITAT-GUWAHATI)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 24-11-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Peak credit
• Section: 143(3); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC GAUHATI BEFORE SHRI S ANJAY GARG , JUDICIAL MEMBER . / ITA NO. 1 7 6 /GAU/20 20 ASSESSMENT YEAR: 20 06 - 07 SHERMAN ALI AHMED C/O RAHUL RAJ JAIN & CO. H. NO. 15, 1 ST FL., BYE LANE - 2, SHAKTIGARH PATH, BHANGAGARH, G.S ROAD, ASSAM., PIN 781005 PAN: AFSPA 6451Q / V/S . I.T.O., WARD 1(2), GUWAHATI, AAYKAR BHAWAN, CHRISTIAN BASTI G.S ROAD, PIN 781005, ASSAM / APPELLANT .. / RESPONDENT HEARING THROUGH VIDEO CONFERENCING / BY APPELLANT NONE / BY RESPONDENT SHRI JAYANTA MRIDHA, JCIT, SR. DR / DATE OF HEARING 1 8 - 03 - 20 2 1 / DATE OF PRONOUNCEMENT 1 8 - 03 - 20 2 1 / O R D E R THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 05 - 12 - 2018 OF THE COMMISSIONER OF INCOME - TAX (APPEALS), JORHAT [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : - 1. THAT THE LD. CIT(A) WAS ERRED IN HOLDING THE IMPUGNED ASSESSMENT ORDER FOR WANT OF VALID JURISDICTION SINCE IN THE INSTANT CASE NO NOTICE U/S. 143(2) WAS ISSUED TO THE ASSESSEE AFTER FILING OF RETURN BY THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED U/S. 148. THEREFORE, THE IMPUGNED ASSESSMENT ORDER IS NULL IN THE EYES OF LAW FOR WANT OF VALID JURISDICTION. 2. THAT THE LD. CIT(A) WAS ERRED WHILE NOT ALLOWING BANK PEAK BALANCE OF IMMEDIATE PRECEDING FINANCIAL YEAR (RS. 25,00,442/ - ) WHILE DETERMINING THE INCOME OF THE CURRENT YEAR ON THE BASIS OF BANK PEAK THEORY. ITA NO. 176 /GAU/20 20 A.Y 20 06 - 07 SHERMAN ALI AHMED . PAGE 2 3. FOR THAT YOUR APPELLANT CRAVES LEAVE OF YOUR HONOUR TO TAKE ADDITIONAL GROUND OR GROUNDS OF APPEAL OR MODIFY ANY GROUND(S) OF APPEAL AT OR BEFORE THE TIME OF HEARING. 3. NONE HAS PUT IN APPEARANCE ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE, THEREFORE, I PROCEED TO DECIDE THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LD. DR 4. THE ASSESSEE IN THIS APPEAL HAS TAKEN LEGAL GROUND ABOUT NON ISSUANCE O F NOTICE U/S. 143(2) OF THE INCOME - TAX ACT, 1961 ( IN SHORT, THE ACT ). THE LD. DR HAS FAIRLY ADMITTED THAT THE LEARNED ASSESSING OFFICER ( IN SHORT, THE LD. AO) DID NOT ISSUE NOTICE U/S. 143(2) OF THE ACT BEFORE COMMENCEMENT OF THE ASSESSMENT PROCEEDI NG U/S. 143(3) OF THE ACT. THE MATTER HAS BEEN SETTLED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE HOTEL BLUE MOON REPORTED IN 321 ITR 362 (S.C) THAT SERVICE OF THE OF STATUTORY NOTICE U/S. 143(2) OF THE ACT IS SINE QUA NON TO INITIAT E/COMMENCE THE ASSESSMENT PROCEEDINGS U/S. 143(3) OF THE ACT. IN THIS CASE, THE LD. AO, WHO PASSED THE IMPUGNED ASSESSMENT ORDER U/S. 143(3) OF THE ACT, DID NOT ISSUE NOTICE U/S. 143(2) OF THE ACT. THEREFORE, THE IMPUGNED ASSESSMENT IS BAD IN LAW AN D THE SAME IS HEREBY QUASHED. IN VIEW OF THE ABOVE, THE APPEAL OF THE ASSESSEE STAND ALLOWED . ORDER PRONOUNCED IN OPEN COURT AT THE TIME OF HEARING ON T HURSDAY , 1 8 TH MARCH , 2021 . SD/ - (S ANJAY GAR G ) JUDICIAL MEM BER - 1 8 - 03 - 2021 /KOLKATA ITA NO. 176 /GAU/20 20 A.Y 20 06 - 07 SHERMAN ALI AHMED . PAGE 3 * *PP/SR.PS / COPY OF ORDER FORWARDED TO: - 1. /APPELLANT /ASSESSEE: SHERMAN ALI AHMED C/O RAHUL RAJ JAIN & CO. H. NO. 15, 1 ST FL., BYE LANE - 2, SHAKTIGARH PATH, BHANGAGARH, G.S ROAD, ASSAM. 2. /RESPONDENT - I.T.O., WARD 1(2), GUWAHATI, AAYKAR BHAWAN, CHRISTIAN BASTI G.S ROAD, PIN 781005, ASSAM 3. / CONCERNED CIT 4. - / CIT (A) 5. , / DR, ITAT, GUWAHATI 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ FOR, SENIOR PRIVATE SECRETARY