ITO, Dausa V. SMT KUSUM GOYANKA, Dausa

ITA 186/JPR/2013

• Counselvise Citation: 18623114 RSA 2013
• Duration Of Justice: 2 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 27-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT LD
• Assessee Lawyers: M IQBAL D
• Keywords: Reassessment proceedings
• Section: 143(3); 147; 148; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 186/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2003-04 THE ITO WARD- DAUSA DAUSA CUKE VS. SMT. KUSUM GOYANKA PROP. M/S. BALAJI ENTERPRISES KHEDLA, TEHSIL- MAHUWA, DISTT.DAUSA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADRPG 3158 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT-. LD. DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SIDDHARTH RANKA AND SHRI M IQBAL, ADVOCATE LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17/11/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30 /11/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 17-12-2012 FOR THE ASSESSMENT YEAR 2003-04 RAISING THEREIN FOLLOWING GROUNDS:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT A SSESSMENT ORDER PASSED BY THE AO WAS WITHOUT JURISDICTION. ITA NO. 186//JP/2013 ITO, WARD- DAUSA VS. SMT. KUSUM GOYANKA, DAUSA . 2 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS JUSTIFIED IN NOT ADJUDICATI NG OTHER GROUNDS OF APPEAL. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT T HERE WAS NO VALID SERVICE OF NOTICE U/S 143(3) IGNORING THE FAC TS THAT THIS NOTICE WAS NOT REQUIRED TO BE SERVED AS THE ASSESSE E HAD FAILED TO FILE A RETURN OF INCOME IN RESPONSE TO NO TICE U/S 148 OF THE ACT. 2.1 LD. DR RELIED ON THE ORDER OF LD. AO AND CONTEN DS THAT THERE IS NO JUSTIFICATION IN THE ORDER OF LD. CIT(A) QUASHING T HE IMPUGNED ASSESSMENT DULY FRAMED U/S 143 R.W.S. 147 HOLDING THAT NOTICE U/S 143(2) WAS NOT SERVED. WITHOUT APPRECIATING THAT, THERE WAS NO RE QUIREMENT OF SUCH NOTICE AS THE ASSESSEE HAD FAILED TO FILE THE RETUR N OF INCOME. 2.2 LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE CO NCLUDING PARA OF LD. CIT(A)S ORDER WHICH READS AS UNDER:- 4.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AS W ELL AS SUBMISSIONS MADE BY THE A.R. (I) THE RETURN OF INCOME WAS FILED BY THE APPELLAN T ON 28-11-03 AND TIME WAS AVAILABLE UPTO 30-11-04 TO ISSUE NOTICE U/S 143(2) TO VERIFY IF THE ASSESSEE HAD UND ERSTATED THE INCOME OR HAS COMPUTED EXCESSIVE LOSS OR HAS UNDER PAID THE TAX IN ANY MANNER AND MAKE AN ASSESSMENT U/S 143(3) OF THE ACT. THE AO HAS INSTEAD NOTICE U/S 148 OF THE ACT O N 04-11- 04 AFTER RECORDING REASONS FOR ESCAPEMENT OF INCOME WHICH IS NOT AS PER LAW. THE NOTICE U/S 148 OF THE ACT HA S BEEN ITA NO. 186//JP/2013 ITO, WARD- DAUSA VS. SMT. KUSUM GOYANKA, DAUSA . 3 ISSUED WHEN THE TIME AVAILABLE FOR ISSUE OF NOTICE U/S 143(2) HAD NOT EXPIRED. IN THE CASE OF SHRI ASHOK KUMAR AGARWAL PROP. M/S. GAURAV ENTERPRISES, KHEDLA DAUSA FOR A.Y. 2003-04, WITH SIMILAR FACTS AND CIRCUMSTANCES, THIS ISSUE HAS BEE N DECIDED IN APPEAL NO. 134/06-07 VIDE ORDER DATED 30-03-2011 BY HOLDING THAT THE NOTICE ISSUED 148 ON 4-11-04 WAS W ITHOUT JURISDICTION AFTER RELYING ON THE DECISION OF HON'B LE MADRAS HIGH COURT IN THE CASE OF CIT VS. QATALYS SOFTWARE TECHNOLOGIES LTD. (2009) 308 ITR 249 AND THE DECISI ON OF HON'BLE ITAT A BENCH IN THE CASE OF B.R. INDUSTR IES VS. ITO, (2008) 114 TTJ (JP) 103. FOLLOWING THE SAME, I T IS HELD IN THIS CASE THAT NOTICE ISSUED U/S 148 ON 4-11-04 IS WITHOUT JURISDICTION SINCE THE AO HAS SUFFICIENT TIME TO IS SUE NOTICE U/S 143(2) OF THE ACT. FURTHER, IT IS ALSO NOTED THAT IN THE ABSENCE OF A VALID NOTICE U/S 148 THE ASSESSEE COULD HAVE BEEN SERVED NOTICE U/S 143(2) FOR REGULAR ASSESSMENT PROCEEDINGS TILL 30-1 1-04. FROM THE ASSESSMENT ORDER, IT IS OBSERVED THAT NO S UCH NOTICE U/S 143(2) WAS ISSUED TILL 30-11-04 AND A DETAILED QUERY LETTER HAS BEEN ISSUED TO THE APPELLANT ONLY ON 28- 09-05. IN VIEW OF ABOVE, IT IS HELD THAT THERE WAS NO VALID S ERVICE OF NOTICE U/S 143(2) OF THE ACT WITHIN ONE YEAR FROM T HE END OF THE ONE MONTH OF FILING OF RETURN BY THE ASSESSEE U /S 139 OF THE ACT. HENCE, THERE WAS NO VALID ASSESSMENT ORDER EVEN U/S 143(3) OF THE ACT IN THE ABSENCE OF A VALID NOTICE U/S 148 OF THE ACT. IN THE ABOVE FACTS AND CIRCUMSTANCES, BOTH THE NOTICE U/S 148 OF THE ACT ISSUED ON 4-11-04 AND THE ASSESS MENT ORDER FOR A.Y. 03-04 PASSED ON 30-03-06 ARE HELD TO BE WITHOUT JURISDICTION AND ARE DIRECTED TO BE QUASHED . ACCORDINGLY GROUND NO. 1 AND GROUND NO. 2 (I) ARE ALLOWED. ITA NO. 186//JP/2013 ITO, WARD- DAUSA VS. SMT. KUSUM GOYANKA, DAUSA . 4 5. SINCE THE NOTICE U/S 148 ISSUED ON 4-1-04 AND THE ASSESSMENT ORDER FOR A.Y. 2003-04 HAVE BEEN HEL D TO BE WITHOUT JURISDICTION AND HAVE BEEN QUASHED AS PER P ARA 4.3 ABOVE, THE OTHER GROUNDS HAVE BECOME INFRUCTUOUS AS THEY NO LONGER SURVIVE. ACCORDINGLY, THESE ARE NOT DISPOSED OFF SEPARATELY. 2.3 IT IS CONTENDED THAT THE REVENUES CASE IF WHOL LY MISCONCEIVED INASMUCH AS THE CONTENTION THAT ASSESSEE HAD NOT FI LED HER RETURN OF INCOME IS NOT CORRECT. THE RETURN WAS FILED ON 28-1 1-2003 WHICH IS NOT DISPUTED BY LD. DR AND THE TIME AVAILABLE FOR ISSUI NG NOTICE U/S 143(2) WAS AVAILABLE WITH LD. AO 30-11-2004. WITHOUT VERIF YING THE RECORD AND RETURN OF INCOME LD AO ISSUED 148 NOTICE ON 4-11-20 04. A PLETHORA OF JUDICIAL DECISIONS HAVE LAID DOWN SETTLED PROPOSIT ION THAT WHEN THE ASSESSEE HAS FILED THE RETURN OF INCOME AND TIME FO R ISSUE OF NOTICE U/S 143(2) IS AVAILABLE WITH AO, ISSUANCE OF 148 IS BAD IN LAW AND CONSEQUENT REASSESSMENT IS ALSO BAD IN LAW. RELIANCE IS PLACED ON ITAT JAIPUR DECISION DATED 27-01-2014 IN ITA NO 518/JP/2012 IN THE CASE OF SHRI ASHOK KUMAR AGRAWAL HOLDING AS UNDER:- 7. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND F URTHER SUBMITTED THAT SINCE TIME WAS AVAILABLE WITH THE AO TO FRAME THE ASSESSMENT ORDER SECTION 143(3) OF THE ACT BY I SSUING NOTICE U/S 143(2) OF THE ACT, HOWEVER, ON SUCH NOTI CE WAS ISSUED. ON THE OTHER HAND, A NOTICE U/S 148 OF THE ACT WAS ISSUED WHICH WAS NOT VALID. THEREFORE, THE ASSESSME NT ITA NO. 186//JP/2013 ITO, WARD- DAUSA VS. SMT. KUSUM GOYANKA, DAUSA . 5 FRAMED BY THE AO WAS RIGHTLY QUASHED BY THE LD. CIT (A). RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS:- 1. M/S. B.R. INDUSTRIES VS. ITO [TAX WORLD VOL XXXV III, 267] (JAIPUR 2. ITO VS. MOTI LAL ANKIT KUMAR [TW VOL. XXXVI, 931 ], JAIPUR 3. DCIT VS. KISHAN LAL LILA [TW VOL. XXXIV 40], JODHPUR 4. CIT VS. QATALYS SOFTWARE TECHNOLOGIES LTD. (2009 ) 308 ITR 249 (MAD.) 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVA ILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSESSEE FILED RETURN OF INCOME U/S 138 OF THE ACT ON 28-11- 2003. THEREFORE, THE TIME AVAILABLE TO FRAME THE AS SESSMENT WITH THE AO WAS UPTO 30-11-2004 BY ISSUING NOTICE U /S 143(2) OF THE ACT. HOWEVER, THE AO INSTEAD OF MAKIN G REGULAR ASSESSMENT, PREFERRED TO ISSUE NOTICE U/S 1 48 OF THE ACT. IN OUR OPINION, ISSUANCE OF NOTICE U/S 148 OF THE ACT WAS NOT JUSTIFIED WHEN THE TIME AVAILABLE FOR ISSUI NG NOTICE U/S 143(2) OF THE ACT HAD NOT EXPIRED. 9. ON A SIMILAR ISSUE, THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. QATALYS SOFTWARE TECH NOLOGIES LTD. (SUPRA) HAS HELD AS UNDER:- THAT THE TRIBUNAL WAS RIGHT IN COMING TO THE CONCLUSION THAT THE ASSESSING OFFICER WAS BARRED FR OM INITIATING REASSESSMENT PROCEEDINGS U/S 147 WHEN TH E TIME FOR ISSUANCE OF NOTICE U/S 143(2) HAD NOT EXPIRED. WE THEREFORE,, KEEPING IN VIEW THE RATIO LAID DOWN BY THE HON'BLE MADRAS HIGH COURT , ARE OF THE VIEW ITA NO. 186//JP/2013 ITO, WARD- DAUSA VS. SMT. KUSUM GOYANKA, DAUSA . 6 THAT THE LD. CIT(A) WAS JUSTIFIED IN QUASHING THE A SSESSMENT ORDER PASSED BY THE AO. FOR THE AFORESAID VIEW, WE ARE ALSO FORTIFIED BY THE DECISION OF THE ITAT LUCKNOW B B ENCH IN THE CASE OF JORA SINGH VS. ITO (2011) 139 TTJ 380 A ND THE DECISION OF THE ITAT JAIPUR BENCH A JAIPUR IN THE CASE OF M/S. B.R. INDUSTRIES VS. ITO , 144 TTJ 103 2.4 FURTHER RELIANCE IS PLACED ON:- (1) CIT VS. TEP LTD. , 253 CTR 414(MAD.) (2) CIT VS. QATALYS SOFTWARE TECHNOLOGIES LTD., 308 ITR 249 (MAD.) (3) SUPER SPINNING MILLS LTD. VS. ACIT,[2010 30 SOT 14 (CHENNAI) ( T M) 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT DISPUTED THAT ASSESS EE HAD FILED HER RETURN OF INCOME ON 28-11-2003 AND AO HAD TIME AVAILABLE UPTO 30-11-2014. WITHOUT VERIFYING AND APPRECIATING THESE CRUCIAL FA CTS FROM RECORD AND DESPITE THE REGULAR RETURN BEING PENDING WITH HIM, ISSUED 147/148 NOTICE ON 4-11-2004 WHICH CANNOT BE SUSTAINED BEING CONTRA RY TO JUDICIAL CITATIONS MENTIONED ABOVE. RESPECTFULLY FOLLOWING A BOVE JUDICIAL PRECEDENTS, I UPHOLD THE ORDER OF LD. CIT(A) ON THI S ISSUE BEING IN CONFORMITY WITH JUDICIAL PRECEDENTS AND BASED ON CO RRECT APPRECIATION OF FACTS ON RECORD. ITA NO. 186//JP/2013 ITO, WARD- DAUSA VS. SMT. KUSUM GOYANKA, DAUSA . 7 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/11/2 015 SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30/11/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD- DAUSA, 2. IZR;FKHZ@ THE RESPONDENT- SMT. KUSUM GOYANKA, DAUSA 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 186/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR