Smt. Madhu Chhanda Dey, Balasore V. ITO, Balasore

ITA 194/CTK/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7577 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 23-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: P K MISHRA
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.194 /CTK/2015 ASSESSMENT YEAR : 2007 - 08 ASHOK KUMAR DEY (LEGAL HEIR), OF LATE MADHUCHHANDA DEY, AT: AKATPUR, SUNHAT, DIST: BALASORE VS. ITO, WARD - 2, BALASORE PAN/GIR NO. ABPPD 6457 J (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.K.MISHRA, AR REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 8 /11 / 2016 DATE OF PRONOUNCEMENT : 8 /11 / 2016 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK, DATED 23.2.2015 , FOR THE ASSESSMENT YEAR 2007 - 08 . 2. IN GROUND NOS.2 & 3 OF THE APPEAL, THE ASSESSEE HAS CHALLENGED THE JURISDICTION OF THE ASSESSING OFFICER TO ISSUE NOTICE U/S.148 OF THE ACT WHE N TIME FOR ISSUANCE OF NOTICE U/S.143(2) OF THE ACT HAS NOT EXPIRED BEFORE THE ISSUANCE OF NOTICE U/S.148 OF THE ACT. 2 ITA NO.194/CTK/2015 ASSESSMENT YEAR : 2007 - 08 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2007 - 08 ON 14.2.2008. THE CONTENTION OF THE A SSESEE IS THAT NOTICE U/S.143(2) OF THE ACT COULD HAVE BEEN SERVED ON THE ASSESSEE BEFORE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED BY THE ASSESSEE. HE SUBMITTED THAT THE RETURN OF INCOME WAS FILED ON 14.2.2008 AND 12 MONTHS FROM THE END OF FEBRUARY, 2008 EXPIRES ON 28.2.2009. THEREFORE, NOTICE U/S.143(2) OF THE ACT COULD HAVE BEE N ISSUED ON THE ASSESSEE ON OR BEFORE 28.2.2009. IN THE INSTANT CASE, NOTICE U/S.148 OF THE ACT WAS ISSUED ON 6.10.2008, WHICH IS MUCH BEFOR E THE TIME PERIOD FOR ISSUANCE OF NOTICE U/S.143(2) HAS EXPIRED. THEREFORE, NOTICE ISSUED U/S.148 OF THE ACT WAS BAD IN LAW AND CONSEQUENTLY A SSESSMENT FRAMED IN PURSUANCE TO SUCH NOTICE IS ALSO BAD IN LAW. FOR THIS PROPOSITION, HE RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. QAYALYS SOFTWARE TECHNOLOGIES LTD., (2009) 308 ITR 249 (MAD), WHEREIN, IT WAS HELD THAT THE TRIBUNAL WAS RIGHT IN COMING TO THE CONCLUSION THAT THE ASSESSING OFFICER WAS BARRED FROM INITIATING REASSESSME NT PROCEEDINGS UNDER SECTION 147 WHEN THE TIME FOR ISSUANCE OF NOTICE UNDER SECTION 143(2) HAD NOT EXPIRED. HE ALSO RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. K.M.PACHAYAPPAN (2008) 304 ITR 264(MAD) , WHEREIN ALSO, IT WAS HELD THAT THE ASSESSING OFFICER HAD ISSUED NOTICE UNDER SECTION 148 OF THE ACT WHEN A VALID RETURN WAS FILED AND WAS PENDING. IN SUCH A SITUATION 3 ITA NO.194/CTK/2015 ASSESSMENT YEAR : 2007 - 08 THE REVENUE COULD NOT HAVE ISSUED NOTICE FOR THE PURPOSE OF REOPENING UNDER SECTION 14 7 OF THE ACT. 4. ON THE OTHER HAND, LD D.R. SUBMITTED THAT NOTICE U/S.148 OF THE ACT ISSUED TO THE ASSESSEE ON 6.10.2008 WAS A VALID NOTICE. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE C ASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME U/S.139(1) OF THE ACT ON 14.2.2008. ACCORDING TO PROVISO TO SECTION 143(2) OF THE ACT, AT THE RELEVANT TIME , NO NOTICE U/S.143(2)(II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED. IN THE PRESENT CASE, THE RETURN OF INCOME WAS FURNISHED BY THE ASSESSEE ON 14.2.2008 AND, THEREFORE, NOTICE U/S.143(2) (II) OF THE ACT COULD HAVE BEEN ISSUED TO THE ASSESSEE ON OR BEFORE 28.2.2009 . I T IS ALSO NOT IN DISPUTE THAT NOTICE U/S.148 OF THE ACT WAS ISSUED TO THE ASSE SSEE ON 6.10.2008, WHICH WAS MUCH PRIOR TO THE EXPIRY OF TIME FOR ISSUING NOTICE U/S.143(2) OF THE ACT. THEREFORE, THE NOTICE ISSUED U/S.148 OF THE ACT IS BAD IN LAW IN VIEW OF TH E DECISIONS OF HONBLE MADRAS HIGH COURT QUOTED ABOVE. HENCE, THE REASSESSMENT ORDER PASSED IN PURSUANCE TO THIS NOTICE IS ALSO BAD IN LAW. I, THEREFORE, CANCEL THE RE ASSESSMENT ORDER D ATED 31.12.2009 PASSED U/S.143(3 )/147 OF THE ACT AND ALLOW THE GROUNDS OF APPEAL OF THE ASSESSEE. 4 ITA NO.194/CTK/2015 ASSESSMENT YEAR : 2007 - 08 6. AS I HAVE CANCELED THE RE ASSESSMENT ORDER PASSED U/S.147 OF THE ACT WHILE DECIDING GROUND NOS.2 & 3 OF T HE APPEAL OF THE ASSESSEE, THE OTHER GROUNDS OF APPEAL OF THE ASSESSEE ON MERITS OF ADDITION HAVE BECOME I NFRU CTUOUS AND HENCE DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCE D IN THE OPEN COURT ON 8 /11 /2016 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 8 /11 /2016 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT : ASHOK KUMAR DEY (LEGAL HEIR), OF LATE MADHUCHHANDA DEY, AT: AKATPUR, SUNHAT, DIST: BALASORE 2. THE RESPONDENT. ITO, WARD - 2, BALASORE 3. THE CIT(A) CUTTACK 4. CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//