Anand Basavennappa Jyoti., Belgaum V. Income Tax Officer, Ward-1(2), Belgaum., Belgaum

ITA 196/PAN/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2121 (ITAT-PANAJI)
• Duration Of Justice: 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 14-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MEHBOOB ALI KHAN
• Assessee Lawyers: ULHAS N KINI
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 196 /P A N/201 5 (ASST. YEAR : 200 8 - 0 9 ) SHRI ANAND BASAVENNAPPA JYOTI , 334/1A , 3 RD CROSS, MAHADWAR ROAD, BELGAUM. VS. ITO , WARD - 1(2), BELGAUM PAN NO. ADQPJ 8542 D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ULHAS N. KINI FC A. DEPARTMENT BY : SHRI K. MEHBOOB ALI KHAN - D R DATE OF HEARING : 26 / 0 4 /201 6 . DATE OF PRONOUNCEMENT : 26 / 0 4 /201 6 . O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) , BEL AGAVI PASSED IN ITA NO. 671/BGM/2010 - 11 , DATED 25 /0 2 /201 5 FOR THE ASSESSMENT YEAR 2008 - 09. 2. SHRI ULHAS N. KINI, CA REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI K. MEHBOOB ALI KHAN, DEPARTMENTAL REPRESENTATIVE REPRESENTED ON BEHALF OF THE REVENUE. 3 . THE ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUND, W HEREIN HE HAS CHALLENGED THE ASSESSMENT ON THE GROUND THAT THE NOTICE UNDER SEC. 143(2) HAD NOT BEEN ISSUED AFTER FILING THE RETURN OF INCOME BY THE 2 ITA NO. 196 /P A N/201 5 ASSESSEE. AS THE SAID GROUND GOES TO THE ROOT OF THE ASSESSMENT AND AS IT IS A LEGAL IS S UE AND DOES NOT REQUIRE ANY VERIFICATION OF ADDITIONAL FACTS, THE SAME SANDS ADMITTED AND DISPOSED OF IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION REPORTED IN 229 ITR 383 (SC) . 4 . IN RESPECT OF ADDITIONAL GROUND, IT WAS SUBMITTED BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT FOR THE RELEVANT ASSESSMENT YEAR , BEING ASSESSMENT YEAR 2008 - 09, NOTICE UNDER SEC. 148 HAD BEEN ISSUED ON THE ASSESSEE ON 18/09/2009 AND THE RETURN OF INCOME WAS FILE D ON 03/09/2010 . THE ASSESSING OFFICER HAS CATEGORICALLY RECORDED IN THE ASSESSMENT ORDER THAT THE RETURN FILED ON 03/09/2010 WAS A RETURN IN RESPONSE TO THE NOTICE UNDER SEC. 148. IT WAS THE SUBMISSION THAT AFTER THIS RETURN WAS FILED ON 03/09/2010, NO NOTICE WAS ISSUED UNDER SEC. 143(2) ON THE ASSESSEE AS REQUIRED UNDER SEC. 143(2) AND CONSEQUENTLY, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS INVALID AND SHOULD BE QUASHED. 5. IN REPLY, DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE NOTICE UNDER SEC. 143(2) HAD BEEN SERVED ALONG WITH NOTICE UNDER SEC. 148 WHICH WAS ISSUED ON 18/09/2009 . IT WAS , HOWEVER, FAIRLY SUBMITTED BY THE DEPARTMENTAL REPRESENTATIVE THAT THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE NOTICE UNDER SEC. 143(2) HAD BEEN ISSUED OR SERV ED ON THE ASSESSEE AFTER 03/09/2010 , BEING THE DATE OF FILING OF THE RETURN IN RESPONSE TO THE NOTICE UNDER SEC. 148. IT WAS THE SUBMISSION THAT AS ONE NOTICE UNDER SEC. 143(2) HAD BEEN ISSUED ALONG WITH NOTICE UND ER SEC. 148, THE ASSESSMENT WAS LIABLE TO BE UPHELD. 6 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ON PERUSAL OF THE PROVISIONS OF SEC. 143(2) SHOWS THAT THE OPENING WORDS WHERE THE ASSESSEE HAS FILED ITS RETURN OF INCOME . IN THE PRESENT CASE, ADMITTEDLY, NO NOTICE UNDER SEC. 143(2) HAS BEEN ISSUED ON THE 3 ITA NO. 196 /P A N/201 5 ASSESSEE AFTER 03/09/2010 , BEING THE DATE OF FILING OF THE RETURN OF INCOME IN RESPONSE TO THE NOTICE UNDER SEC. 148 DATED 18/09/2009 . CONSEQUENTLY, AS THERE HAS BEEN V IOLATION IN RESPECT OF ISSUANCE OF NOTICE UNDER SEC. 143(2), CONSEQUENTIAL ASSESSMENT PASSED STANDS ANNULLED . THIS VIEW OF OURS ALSO FINDS SUPPORT FR O M THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF SUKHINI P. MODI REPORTED IN (2014) 52 TAXMANN.COM 50 (GUJ .), AS ALSO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF R. DALMIA REPORTED IN 236 ITR 480 AND THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON REPORTED IN 321 ITR 362 . AS THE NOTICE UNDER SEC. 143(2) HAS NOT BEEN ISSUED AFTER THE RETURN HAS BEEN FILED BY THE ASSESSEE, THE CONSEQUENTIAL ASSESSMENT STANDS QUASHED. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON TUESDAY , THE 26 TH DAY OF APRIL , 201 6 AT GOA . S D / - S D / - (N.S.SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26 TH APRIL, 201 6 . VR/ - COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI