Sekhar Kumar Goenka, Jharsuguda V. ACIT, Circle-1(1), Bhubaneswar, Bhubaneswar

ITA 194/CTK/2013

• Counselvise Citation: 19422114 RSA 2013
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 25-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K NEB
• Assessee Lawyers: M K KEDIA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK .. , .. , BEFORE SHRI P.K.BANSAL , A M & SHRI D.T.GARASIA , J M ./ ITA NO. 194 / C TK /20 1 3 ( / ASSESSMENT YEAR : 200 9 - 10 ) SHRI SEKHAR KUMAR GOENKA, AT/PO. BELPAHAR R.S., DISTRICT JHARSUGUDA, ODISHA - 768 217 VS. ACIT, CIR - 1( 1 ), AAYAKAR BHAWAN, RAJASWA VIHAR, BHUBANESWAR - 751 007 ./ ./ PAN/GIR NO. : A FSP G 3430 K ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO. 224 / CTK /20 13 ( / ASSESSMENT YEAR :2009 - 10 ) ACIT, CIR - 1(1), AAYAKAR BHAWAN, RAJASWA VIHAR, BHUBANESWAR - 751 007 VS. SHRI SEKHAR KUMAR GOENKA, AT/PO. BELP AHAR R.S., DISTRICT JHARSUGUDA, ODISHA - 768 217 ./ ./ PAN/GIR NO. : A FSPG 3430 K ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI M.K.KEDIA /REVENUE BY : SHRI N.K.NEB / DATE OF HEARING : 21 ST APRIL , 201 4 / DATE OF PRONOUNCEMENT : 23 RD APRIL , 201 4 / O R D E R PER BENCH : BOTH THESE CROSS APPEALS HAVE BEEN FILED AGAINST THE ORDER OF THE CIT(A), DATED 7 - 1 - 2013. IN THE YEAR APPEAL FILED BY THE ASSESSEE, THE ASSESSEE HAS TAKEN AS MANY AS EIGHT GROUNDS OF APPEAL. GROUNDS NO.1 TO 6 RELATE TO LEGALITY OF THE ASSESSMENT AS WELL AS QUESTIONING OF THE JURISDICTION OF THE ASSESSING OFFICER UNDER SECTION 124 AS THE ITA NO S . 194&224 /201 3 2 ASSESSE E HAS FILED OBJECTIONS WITHIN 30 DAYS FROM THE DATE OF THE ISSUE OF NOTICE U/S.143(2). THE ASSESSEE HAS ALSO CHALLENGED PASSING OF THE ORDER U/S.144 WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE HAS ALSO CHALLENGED THE ADDITION M ADE ON MERIT AND S USTENANCE OF THE ADDITION BY THE CIT(A) BY REDUCING THE ESTIMATION OF PROFIT FROM 12% TO 10% . 2 . ON THE OTHER HAND, REVENUE HAS ALSO CHALLENGED THE ORDER OF CIT(A) RESTRICTING THE ESTIMATION OF THE NET PROFIT AT THE RATE OF 10% AGAINST 12% MADE BY THE AO. 3 . FACTS IN BRIEF ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 15 - 4 - 2010 AT AN INCOME OF RS. 12,76,470/ - , WHICH WAS PROCESSED U/S.143(1 ) ON 30 - 11 - 2010. THE NOTICE U/S.143(2) DATED 25 - 8 - 2011 WAS S ENT TO THE ASSESSEE. THE ASSESSEE IN REPLY TO THE NOTICE THROUGH POST SENT THE OBJECTION VIDE HIS LETTER DATED 10 - 9 - 2011 CHALLENGING THE JURISDICTION OF THE ASSESSING OFFICER THAT THE ASSESSEE IS RESIDING AT BELPAHAR, DISTRICT JHARSUGUDA AND IS ASSESSED TO INCOME TAX UNDER THE JURISDICTION OF INCOME TAX OFFICER, WARD - 1, JHARSUGUDA. THE NOTICE HAS BEEN ISSUED BY THE ASSESSING OFFICER WRONGLY AS THE JURISDICTION IN HIS OPINION LYING WITH THE ITO WARD - 1, JHARSUGUDA. THEREFORE, THE ASSESSEE REQUESTED TO TRANSF ER THE CASE TO ITO, WARD - 1, JHARSUGUDA. THE ASSESSING OFFICER VIDE HIS LETTER DATED 19 - 11 - 2011 STATED TO THE ASSESSEE THAT THE JURISDICTIONAL IS CORRECTLY LIES WITH HIM BY STATING AS UNDER : - ITA NO S . 194&224 /201 3 3 THIS IS TO INFORM YOU THAT ON VERIFICATION OF RECORDS IT IS FO UND THAT YOU HAVE E - FILED THE RETURN OF INCOME FOR THE ASSE SSMENT YEAR 2009 - 10 UNDER THE AO CODE OF ACIT, CIRCLE - 1(1), BHUBANESWAR AND AS PER THE PAN DATA BASE, THE PRESENT JURISDICTION OVER THE CASE LIES WITH THIS CIRCLE. THAT IS WHY THE CASE HAS BEEN SEL ECTED THROUGH CASS UNDER THE AO CODE OF THIS CIRCLE. IT MAY BE MENTIONED HERE THAT THE RETURNS FOR THE ASSESSMENT YEARS 2008 - 09 & 2010 - 11 WERE ALSO E - FILED UNDER THE AO CODE OF ACIT, CIRCLE - 1(1), BHUBANESWAR. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 20 11 - 12 HAS NOT YET BEEN FILED BY YOU. UNDER THESE CIRCUMSTANCES, IT IS NOT AT ALL UNDERSTOOD HOW YOU ARE ASSESSED UNDER THE INCOME TAX OFFICER, WARD - 1, JHARSUGUDA THOUGH YOU HAVE CONTINUOUSLY FILED THE INCOME TAX RETURNS UNDER THE JURISDICTION OF ACIT, CIRC LE - 1(1), BHUBANESWAR. HENCE, THE NOTICE U/S.143(2) OF THE I.T. ACT IS CORRECTLY ISSUED HAVING JURISDICTION OVER THE CASE. FURTHER, IT MAY BE MENTIONED HERE THAT IT IS BEYOND THE CAPACITY OF THE UNDERSIGNED TO TRANSFER THE FILE FROM THIS CIRCLE TO ITO, WARD - 1, JHARSUGUDA AS IT INVOL VES TWO DIFFERENT CIT CHARGES I.E. CIT, BHUBANESWAR AND CIT, SAMBALPUR . 4 . THE NOTICE U/S.142(1) DATED 11 - 11 - 2011 WAS ALSO SENT TO THE ASSESSEE WHICH WAS NOT COMPLIED WITH. ULTIMATELY, THE ASSESSING OFFICER MADE THE BEST ASSESS MENT U/S.144, AS THE ASSESSEE EVEN DID NOT PRODUCE THE BOOKS OF ACCOUNTS, BILLS AND VOUCHERS, ESTIMATING THE INCOME OF THE ASSESSEE AT THE RATE OF 12% OF THE GROSS RECEIPT, GIVING COMPARATIVE INSTANCE IN THE CASE OF M/S D.D.PATI & OTHERS , PASSED BY TH E CUT TACK BENCH OF THE TRIBUNAL IN ITA NO.114 & 150/CKT/2007 - 08, VIDE ORDER DATED 11 - 09 - 2008, ACCEPTED THE ESTIMATION MADE BY THE ASSESSING OFFICER AT THE RATE OF 11%. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). THE CIT(A) RELYING ON THE ORDER OF THE AO TOOK A VIEW THAT THE PROPER JURISDICTION LIES WITH THE ACIT, CIRCLE - 1(1) , BHUBANESWAR AND REDUCED THE ESTIMATION OF THE PROFIT @10% OF THE GROSS TURNOVER. ACCORDINGLY, THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE PARTLY. ITA NO S . 194&224 /201 3 4 5 . WE HEARD R IVAL SUBMISSIONS AND CAR EFULLY CONSIDERED THE SAME. SO FAR AS ISSUE RELATING TO THE JURISDICTION OF THE ASSESSING OFFICER IS CONCERNED, WE NOTED THAT IN THIS CASE, THE ASSESSEE HAS OBJECTED THE JURISDICTION OF THE ASSESSING OFFICER WITHIN THE TIME LIMIT AS HAS BEEN SPECIFIED UND ER S ECTION 124 (3)(A) , THEREFORE, THE APPLICATION MOVED BY THE ASSESSEE FOR CHALLENGING THE JURISDICTION WAS A VALID ONE. WE NOTED SECTION 124(4) LAYS DOWN THAT WHERE AN ASSESSEE CALLS IN QUESTION THE JURISDICTION OF THE ASSESSING OFFICER, THEN THE ASSESSIN G OFFICER SHALL , IF NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM, REFER THE MATTER FOR DETERMINATION UNDER SUB - SECTION (2 ) BEFORE THE ASSESSMENT IS MADE TO CCIT OR DG & CIT. SUB - SECTION 2 OF SECTION 14 LAYS DOWN AS UNDER : - (2) WHERE A QUESTION ARISES UNDER THIS SECTION AS TO WHETHER AN ASSESSING OFFICER HAS JURISDICTION TO ASSESS ANY PERSON, THE QUESTION SHALL BE DETERMINED BY THE DIRECTOR GENERAL OR THE CHIEF COMMISSIONER OR THE COMMISSIONER; WHERE THE QUESTION IS ONE RELATING TO AREAS WITHIN THE JURI SDICTION OF DIFFERENT DIRECTOR GENERAL OR CHIEF COMMISSIONERS OR COMMISSIONERS, BY THE DIRECTORS GENERAL OR CHIEF COMMISSIONERS OR COMMISSIONERS CONCERNED OR, IF THEY ARE NOT IN AGREEMENT, BY THE BOARD OR BY SUCH DIRECTOR GENERAL OR CHIEF C OMMISSIONER OR C OMMISSIONER AS THE BOARD MAY, BY NOTIFICATION IN THE OFFICER GAZETTE, SPECIFY. FROM THIS SUB - SECTION (2) OF SECTION 124, IT IS APPARENT THAT INCASE THE ASSESSEE OBJECTS ABOUT THE JURISDICTION AND THE ASSESSING OFFICER IS NOT SATISFIED, THE ASSESSING OFF ICER IS BOUND TO REFER THE QUESTION OF THE JURISDICTION TO THE DIRECTOR GENERAL OR THE CHIEF COMMISSIONER OR THE COMMISSIONER , I NCASE IT RELATES TO THE SAME DIRECTOR GENERAL OR CHIEF COMMISSIONER OR THE COMMISSIONER , BUT WHERE THE QUESTION OF JURISDICTION RELATING TO THE AREAS WITHIN THE JURISDI CTION OF THE DIFFERENT DIRECTORS GENERAL OR CHIEF COMMISSIONERS OR COMMISSIONERS, THE AO ITA NO S . 194&224 /201 3 5 IS BO UND TO REFER IT TO THE DIRECTOR GENERAL , CHIEF COMMISSION ER OR COMMISSIONER CONCERNED AND IF THOSE PEOPLE ARE NOT IN AGRE EMENT, THEN IT SHOULD BE DECIDED BY THE BOARD OR BY SUCH DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER AS THE BOARD MAY SPECIFY THIS BY NOTIFICATION IN THE OFFICIAL GAZETTE. IN THE IMPUGNED CASE, WE NOTED THAT THE ASSESSING OFFICER HIMSELF HAS DEC IDED THE ISSUE OF THE JURISDICTION AND SENT THE NOTICE TO THE ASSESSEE U/S.142(1), WHICH REMAINED UN - COMPLIED AND ACCORDINGLY THE BEST JUDGMENT ASSESSMENT WAS PASSED U/S.144. IN OUR OPINION, THE ASSESSING OFFICER WAS NOT CORRECT IN LAW IN DECIDING THE ISSU E OF THE JURISDICTION HIMSELF. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR - PLAY TO BOTH THE PARTIES, SET ASIDE THE ORDER PASSED BY THE ASSESSING OFFICER AND RESTORE THE ISSUE TO THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER MAY PROCEED WITH THE ASSESSMENT AFTER GETTING THE ISSUE RELATING TO THE JURISDICTION DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 124(2) OF THE I.T. ACT. ONCE THE ISSUE RELATING TO THE JURISDICTION IS DECIDED, THE ASSESSMENT BE MADE ON THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS OF LAW BY THE ASSESSING OFFICER, WHO IS HAVING APPROPRIATE JURISDICTION ON THE ASSESSEE IN ACCORDANCE WITH THE LAW. 6 . SINCE, WE HAVE ALREADY SET ASIDE THE ASSESSMENT ON THE ISSUE OF JURISDICTION; THEREFORE, THE OTHER GR OUNDS TAKEN BY THE ASSESSEE DO NOT REQUIRE ANY ADJUDICATION. ITA NO S . 194&224 /201 3 6 7 . THE APPEAL FILED BY THE REVENUE IS ALSO BECOME INFRUCTUOUS AS WE HAVE ALREADY SET ASIDE THE ASSESSMENT IN APPEAL OF THE ASSESSEE. 8 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED STATISTICALLY, WHEREAS THE APPEAL OF THE REVENUE STANDS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD APRIL, 201 4 . 23 RD APRIL ,2014 SD/ - SD/ - ( .. ) ( D.T.GARASIA ) ( .. ) ( P.K.BANSAL ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 23 / 0 4 /2014 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, CUTTACK 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) , BHUBANESWAR 4. / CIT , BHUBANESWAR 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//