Sushma Ray, Patna V. ITO, Ward-1(2), Patna

ITA 188/PAT/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1413 (ITAT-PATNA)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 09-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AMAN RAJA
• Keywords: Assessment record
• Section: 143(3); 143(2)

Judgement Text

1 ITA NO. 188/PAT/2018 SUSHMA RAY, AY 2013-14 IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, VIRTUAL HEARING AT KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 188/PAT/2018 ASSESSMENT YEAR:2013-14 SUSHMA RAY (PAN: AIUPR4624H) VS. INCOME TAX OFFICER, WARD-1(2), PATNA APPELLANT RESPONDENT DATE OF HEARING 09.12.2020 DATE OF PRONOUNCEMENT 16.12.2020 FOR THE APPELLANT SHRI AMAN RAJA, AR FOR THE RESPONDENT SHRI AJAY KUMAR, DR ORDER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-1,PATNA DATED 29-06-2018 FOR ASSESSMENT YEAR 2013-14. 2. THE LD. AR SHRI AMAN RAJA DREW OUR ATTENTION TO THE GROUNDS OF APPEAL PREFERRED BY THE ASSESSEE BEFORE ME WHEREIN HE HAS RAISED A LEGAL ISSUE. ACCORDING TO LD. AR, THE ASSESSMENT WAS FRAMED U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BY THE AO [ITO, WARD-1(2), PATNA] WITHOUT ISSUING NOTICE U/S. 143(2) OF THE ACT, THEREFORE, THE AO DID NOT HAVE THE JURISDICTION TO FRAME ASSESSMENT U/S. 143(3) OF THE ACT AND THEREFORE, THE ORDER OF AO IS BAD IN LAW AS HELD BY THE HONBLE SUPREME COURT IN ACIT VS. HOTEL BLUE MOON 321 ITR 328 WHEREIN THE HONBLE SUPREME COURT HAS HELD THAT BEFORE FRAMING SCRUTINY ASSESSMENT U/S. 143(3) OF THE ACT, THE AO HAS TO MANDATORILY ISSUE NOTICE U/S. 143(2) OF THE ACT. IT HAS BEEN BROUGHT TO OUR NOTICE THAT IN THIS CASE, THE NOTICE U/S. 143(2) OF THE ACT WAS ERRONEOUSLY ISSUED BY THE NON-JURISDICTIONAL ITO, WARD-1(1), PATNA WHO ISSUED NOTICE U/S. 143(2) OF THE ACT DATED 31.08.2015 (FOUND PLACED AT PAGE 9 OF PAPER BOOK) AND THEREAFTER, THE ITO REALISING HIS MISTAKE THAT HE HAS NO JURISDICTION TO ASSESS THE 2 ITA NO. 188/PAT/2018 SUSHMA RAY, AY 2013-14 INCOME OF THE ASSESSEE TRANSFERRED THE CASE TO ITO, WARD-1(2) WHO IS IN FACT THE JURISDICTIONAL AO OF THE ASSESSEE VIDE LETTER DATED 06.10.2015 AND THEREAFTER, THE AO (ITO, WARD-1(2) HAS FRAMED THE ASSESSMENT U/S. 143(3) OF THE ACT DATED 11.02.2016. THEREFORE, ACCORDING TO LD. AR, THE ASSESSMENT FRAMED BY THE ITO, WARD-1(2) WITHOUT ISSUING NOTICE U/S. 143(2) OF THE ACT IS NULL IN THE EYES OF LAW. 3. PER CONTRA, THE LD. DR SHRI AJAY KUMAR SUPPORTED THE ORDER OF THE LD. CIT(A) AND DOES NOT WANT US TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). HOWEVER, TO THE QUERY OF THE BENCH AS TO WHETHER ITO, WARD-1(2) HAD ISSUED NOTICE U/S. 143(2) OF THE ACT, THE LD. DR AFTER PERUSAL OF THE ASSESSMENT RECORD FAIRLY ADMITTED THAT THERE WAS NO NOTICE ISSUED BY THE ITO, WARD-1(2) TO THE ASSESSEE, A COPY OF WHICH HE COULD NOT TRACE IN THE ASSESSMENT RECORDS AND HE ALSO ADMITTED THAT THERE IS NO NOTHING MENTIONED IN THE ORDER SHEET AS TO ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT BY THE AO [ITO, WARD-1(2)] AFTER HE RECEIVED THE CASE FILE TRANSFERRED FROM ITO, WARD-1(1, PATNA) BY LETTER DATED 06.10.2015. 4. AFTER HEARING BOTH THE PARTIES IT IS NOTED THAT THE LEGAL ISSUE RAISED BY THE ASSESSEE IS NO LONGER RES INTEGRA. ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT IS SINE QUA NON FOR FRAMING OF ASSESSMENT U/S. 143(3) OF THE ACT AS HELD BY THE HONBLE SUPREME COURT IN HOTEL BLUE MOON (SUPRA). IN THIS CASE, IT IS AN ADMITTED FACT THAT NOTICE U/S. 143(2) HAS BEEN ISSUED ON 31.08.2015 BY NON-JURISDICTIONAL AO I.E. ITO, WARD-1(1) (REFER PAGE 9 OF PAPER BOOK) AND THEREAFTER, REALISING THE MISTAKE HE [ITO, WARD-1(1)] TRANSFERRED THE CASE OF THE ASSESSEE TO ITO, WARD-1(2) VIDE LETTER DATED 06.10.2015. THEREAFTER, THE ITO, WARD-1(2) HAS FRAMED THE ASSESSMENT U/S. 143(3) OF THE ACT WITHOUT ISSUING NOTICE U/S. 143(2) OF THE ACT AND FRAMED THE ASSESSMENT U/S. 143(3) OF THE ACT ON 11.02.2016. THE LD. DR COULD NOT CONTROVERT THIS FACT AND HE AFTER PERUSAL OF THE ASSESSMENT RECORDS HAS CONCEDED THAT NEITHER NOTICE U/S. 143(2) WAS ISSUED BY ITO, WARD-1(2) NOR ANY NOTING OF THE SAME IS FOUND IN THE ORDER SHEET MAINTAINED BY THE AO. SO, IN THE ABSENCE OF ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT BY ITO, WARD-1(2) AND ADMITTED FACT IS THAT THERE IS NO TRANSFER OF THE CASE OF THE ASSESSEE IN THIS CASE BY THE JURISDICTIONAL CIT U/S. 127 OF THE ACT, THE OMISSION TO ISSUE 3 ITA NO. 188/PAT/2018 SUSHMA RAY, AY 2013-14 NOTICE U/S. 143(2) OF THE ACT BY ITO, WARD-1(2) MAKES THE ASSESSMENT ORDER NULL IN THE EYES OF LAW AND, THEREFORE, I QUASH THE ASSESSMENT ORDER DATED 11.02.2016. SINCE LEGAL ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE OTHER ISSUES BECOMES ACADEMIC. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16TH DECEMBER, 2020. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 16TH DECEMBER, 2020 JD(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SMT. SUSHMA RAY, C/O, BINDA PRASAD RAY, 71, SANJAY NAGAR, NAWRATANPUR, ROAD NO. 02, GPO, PATNA-800 001 (BIHAR) 2 RESPONDENT ITO, WARD-1(2), PATNA 3. 4. 5. CIT(A)-1, PATNA CIT- PATNA DR, ITAT, PATNA. / TRUE COPY, BY ORDER, SENIOR PVT. SECY/DDO.