Dagesingh Pnjusingh Rajput, HUF, Malegaon V. ITO,CIB(1), Nashik

ITA 194/PUN/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9815 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-10-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 02-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Principle of natural justice
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 194/PN/2010 (ASSESSMENT YEAR 2005 -06) DAGESINGH PNJUSINGH RAJPUT APPELLANT HUF, KUSUMBA ROAD, A/P- DYANE, TALUKA : MALEGAON, DIST: NASHIK, PAN : AAFHD5536D V. INCOME TAX OFFICER CIB(I), RESPONDENT GADKARI CHOWK, NASHIK APPELLANT BY : NONE RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 19/10/12 DATE OF PRONOUNCEMENT : 27-11-12 O R D E R PER R.S. PADVEKAR, JM THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING T HE IMPUGNED ORDER OF THE LD CIT(A) II, NASHIK DATED 25/11/2009 FOR THE A.Y. 2005-06. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS : 1. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE ASSESSMENT FRAMED U/S. 144 IN RESPONSE TO NOTICE ISSUED U/S. 142(1) OF THE ACT PLEASE BE QUASHED AS IMPUGNE D NOTICE ISSUED U/S. 142(1) OF THE ACT IS ILLEGAL AND INVALID. 2. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND AS PER LAW, THE ASSESSMENT FRAMED U/S. 144 PLEASE BE Q UASHED AS THE SAME IS PASSED IN THE STATUS OF HUF WHEN THE NOTICE U/S. 142(1) OF THE ACT IS ISSUED IN THE INDIVIDUAL STATUS OF THE KARTA OF THE APPELLANT. 3. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE ASSESSMENT FRAMED U/S. 144 PLEASE BE Q UASHED AS THE SAME IS PASSED WITHOUT JURISDICTION BECAUSE NO OPPORTUNI TY OF BEING HEARD AS REQUIRED U/S. 127 OF THE ACT REGARDING THE TRANSFER OF THE JURISDICTION FROM THE INCOME TAX OFFICER (CIB)-2, PUNE TO THE INCOME TAX OFFICER (CIB)- I, NASHIK IS GIVEN TO THE APPELLANT. 4. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND AS PER LAW, THE ASSESSMENT FRAMED U/S.144 PLEASE BE QU ASHED AS THE PRINCIPLES OF NATURAL JUSTICE ARE VIOLATED BY THE AO 2 ITA NO. 194/PN/2010 DAGESINGH PNJUSINGH RAJPUT (A.Y. 2005-06) 5. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE COMMISSIONER OF INCOME TAX, APPEALS-II, NASHIK IS N OT JUSTIFIED IN CONFIRMING THE ADDITION TO THE EXTENT OF RS. 2,20,0 00/- MADE BY THE AO ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT. 2. THE FIRST ISSUE IS WHETHER THE ASSESSMENT ORDER FRAMED BY THE A.O. U/S. 144 IS BAD IN LAW AS THE NOTICE U/S. 142(1) WA S ISSUED AFTER THE END OF THE RELEVANT ASSESSMENT YEAR. 3. THIS MATTER WAS FIXED FOR HEARING FROM TIME TO T IME. NONE APPEARED FOR THE ASSESSEE. THE LD. D.R. SMT. ANN K APTHUAMA WAS PRESENT. THE ASSESSEE IS THE KARTA OF HUF, WHO IS MAINLY AGRICULTURIST. THE NOTICE U/S. 142(1) OF THE INCOME TAX ACT 1961 W AS ISSUED BY THE ITO (CIB) II, PUNE ON 16-11-2007 TO THE KARTA OF TH E ASSESSEE IN HIS INDIVIDUAL CAPACITY ASKING HIM TO FILE CERTAIN D ETAILS WITH REFERENCE TO CASH DEPOSIT OF RS. 11,52,000/- DURING THE F.Y. 200 4-05 IN HIS SAVING BANK A/C. THE ASSESSMENT WAS COMPLETED EX PARTE U/ S. 144 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 11,52,000/- . THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD CIT(A ) AND LD CIT(A) SUSTAINED THE ADDITION TO THE EXTENT OF RS. 2,20,00 0/- OUT OF RS. 11,52,000/- MADE BY THE A.O. NOW THE ASSESSEE HAS CHALLENGED THE LEGALITY AND VALIDITY OF THE ASSESSMENT ORDER BY TA KING THE PLEA THAT THE A.O. ISSUED THE NOTICE TO THE ASSESSEE U/S. 142(1) OF THE ACT AFTER THE END OF THE A.Y. 2005-06 WHEN THE A.O. WAS BOUND TO ISSU E THE SAID NOTICE ON OR BEFORE 31 ST MARCH 2006. IN THE WRITTEN SUBMISSION FILED, IT IS PLEADED THAT THE ENTIRE ASSESSMENT ORDER IS TO BE QUASHED AS BAD-IN-LAW. 4. ON THE PERUSAL OF THE ASSESSMENT ORDER, IT IS SE EN THAT A NOTICE U/S. 142(1) WAS ISSUED TO THE ASSESSEE CALLING FOR THE R ETURN OF INCOME FOR THE A.Y. 2005-06 WHICH WAS SERVED ON THE ASSESSEE ON 21 ST NOVEMBER 2007 . THE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE TRIB UNAL IN THE CASE OF ITO, NANDED VS. SHRI NARAYAN P. LUTE, AND OTHERS, I TA NOS. 1021, 1022 & 1023/PN/2011, ORDER DATED 12 TH SEPTEMBER 2012. IN THE SAID CASE ALSO, THE ASSESSEE QUESTIONED THE LEGALITY AND VALIDITY O F THE NOTICE ISSUED U/S. 142(1) OF THE ACT AS THE SAID NOTICE WAS ISSUED AFT ER THE END OF THE RELEVANT A.Y. I.E. A.Y. 2005-06. THE OPERATIVE PA RT OF THE ORDER OF THE TRIBUNAL IS AS UNDER :- 5. WE HAVE HEARD THE PARTIES AND PERUSED THE RECOR D. SO FAR AS THE VALIDITY OF THE NOTICE ISSUED U/S. 142(1) IS CO NCERNED, WE FIND THAT THE A.O ISSUED THE NOTICES TO THESE ASSESSEES ON 27 .8.2007 CALLING FOR THE RETURNS OF INCOME FOR THE A.Y. 2005-06. IN THE CASE OF SHAH WALLACE & CO. LTD.(SUPRA), THE ITAT KOLKATA BENCH H AS CONSIDERED THE TIME LIMIT FOR THE ISSUING THE NOTICE U/S. 142(1) A ND HELD THAT THE ISSUANCE OF NOTICE U/S.142(1) AFTER THE END OF THE ASSESSMENT YEAR IN 3 ITA NO. 194/PN/2010 DAGESINGH PNJUSINGH RAJPUT (A.Y. 2005-06) THE ABSENCE OF ANY RETURN BY THE ASSESSEE CANNOT GI VE RISE TO VALID PROCEEDINGS UNDER THE ACT. IT IS FURTHER HELD THAT AFTER END OF THE ASSESSMENT YEAR, INCOME CAN BE ASSESSED ONLY AFTER THE ISSUANCE OF NOTICE U/S. 148. WE FIND THAT ISSUE NO.1 IN THIS CA SE IS DIRECTLY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION IN THE CA SE OF SHAW WALLACE & CO. LTD. (SUPRA). WE, ACCORDINGLY, CONFIRM THE OR DER OF LD CIT(A) ON THE ISSUE OF VALIDITY OF NOTICE U/S. 142(1) AND GRO UND NO. 1 IS DISMISSED. THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE ITAT, KOLKATTA BENCH IN THE CASE OF SHAW WALLACE & CO. LTD., VS. DCIT, 101 TTJ (CAL.) 258. 5. ADMITTEDLY, IN THE PRESENT CASE, THE A.O HIMSELF HAD NOTED THAT NOTICE U/S. 142(1) WAS SERVED ON THE ASSESSEE ON 29 .11.2007 , WHICH IS AFTER THE END OF THE A.Y. 2005-06. WE, THEREFORE, ALLOW THE GROUND TAKEN BY THE ASSESSEE ON THE ISSUE OF 142(1) AND HOLD THA T THE ASSESSMENT ORDER IS BAD IN LAW AND ACCORDINGLY, GROUND NOS. 1 & 2 ARE ALLOWED. THE ASSESSEE HAS ALSO TAKEN THE GROUNDS ON MERIT, BUT A S THE ASSESSEE HAS SUCCEEDED ON LEGAL GROUNDS ON THE ISSUE OF THE VALI DITY OF THE ASSESSMENT ORDER, THE OTHER GROUNDS HAVE BECOME INFRUCTOUS. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 27TH NOVEMBER 2012. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (R.S.PADVEKAR ) JUDICIAL MEMBER PUNE, DATED THE 27TH NOVEMBER, 2012 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT II, NASHIK 4. THE CIT(A)-II, NASHIK 5. THE D.R. A BENCH, PUNE 6. GUARD FILE /- TRUE COPY-/ BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE