Assistant Commissioner of Income Tax-1(2), RAIPUR (CG) V. M/s. Radius Corporation Limited, RAJNANDGAON

ITA 197/BIL/2011

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8934 (ITAT-RAIPUR)
• Duration Of Justice: 6 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 21-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Assessee Lawyers: P C MALOOABHISHEK MALOO JAIN
• Keywords: Period of limitation; Procedural lapse; Time period of passing order
• Section: 142(1); 148; 2; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.197/RPR/2011 ASSESSMENT YEAR : 2007-2008 ITA NO.198/RPR/2011 ASSESSMENT YEAR: 2008-09 ASST. COMMISSIONER OF INCOME TAX -1(2), RAIPUR. VS. M/S. RADIUS CORPORATION LTD., 57/58, VARDHMAN NAGAR, RAJNANDGAON, C.G. PAN/GIR NO.AACCR 7045 R (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.C.MALOO/ABHISHEK MALOO JAIN, AR REVENUE BY : SHRI D.K.JAIN, DR DATE OF HEARING : 08/01/ 2018 DATE OF PRONOUNCEMENT : 11 /01/ 2018 O R D E R PER PAVAN KUMAR GADALE, JM BOTH THE APPEALS FILED BY THE REVENUE ARE DIRECTED AG AINST THE COMMON ORDER DATED 14.7.2011OF THE CIT(A)-RAIPUR, FOR TH E ASSESSMENT YEARS 2007-08 AND 2008-09, RESPECTIVELY. 2. THE REVENUE HAS FILED ADDITIONAL GROUND IN BOTH T HE APPEALS, WHICH IS AS UNDER: WHETHER ON LAW AND FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS JUSTIFIED IN HOLDING THAT THE ASSESSMENT ORDERS ARE INVALID WITHOUT VALID NOTICE U/S.143(2). 2 M/S. RADIUS CORPORATION LTD 3. AT THE VERY OUTSET, LD D.R. SUBMITTED THAT THE ADD ITIONAL GROUND FILED BY THE REVENUE BE ADJUDICATED, WHICH GOES TO THE ROOT OF THE MATTER. LD A.R. HAD NO OBJECTION TO THE ADMISSION OF ABOVE ADDITIONAL GROUND OF APPEAL TAKEN BY THE REVENUE. HENCE, THE SAID ADDITIONAL GRO UND OF APPEAL BEING LEGAL GROUND IS ADMITTED FOR ADJUDICATION IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF CIT VS. NTPC [229 IT R 383(SC)] AND THE PARTIES WERE ALLOWED TO MAKE THEIR SUBMISSIONS THEREON. 4. LD D.R. SUBMITTED THAT THE ASSESSING OFFICER HAS RIGHTLY ISSUED NOTICE U/S 148 OF THE ACT ON 2.12.2009. FURTHER, THE NOTICE U/S.143(2) OF THE ACT WAS ISSUED SIMULTANEOUSLY ON 2.12.2009, WHICH WAS SERVED ON THE ASSESSEE ON THE SAME DATE. HE SUBMITTED THAT PROVISIONS OF SECTIO N 143(2) PRESCRIBING LIMITATION PERIOD IS NOT APPLICABLE IN RESPECT OF RETU RN OF INCOME FILED IN RESPONSE TO NOTICE U/S.148 OF THE ACT. THEREFORE, THE C IT(A) ERRED IN TREATING THE ISSUE OF NOTICE U/S.143(2) IS INVALID AND BEYOND T IME LIMIT. THE LD D.R. REFERRED TO THE DECISION OF THE AGRA TRIBUNAL IN THE CASE OF CHANDRA BHAN BANSAL VS DCIT, 79 ITD 639 (AGRA), WHEREIN, IT WAS HE LD THAT PROVISIONS OF SECTION 143(2) MAKE IT AMPLY CLEAR THAT PROVISO TO SECTIO N 143(2) DID NOT INCLUDE A RETURN FILED IN RESPONSE TO NOTICE UNDER SECTIO N 148. IT HAS LIMITED ITSELF TO THE RETURNS FILED UNDER SECTION 139 OR IN RESP ONSE TO NOTICE U/S.143(1). IT IS SIGNIFICANT TO NOTE THAT SECTIONS 139, 142(1) AND SECTION 148, ALL THESE SECTIONS PROVIDE FOR FILING OF RETURNS IN THEIR RESPONSE. BY 3 M/S. RADIUS CORPORATION LTD INCLUDING SECTIONS 139 AND 142(1), WITHIN THE SCOPE OF PR OVISO TO SECTION 143(2), THE LAW MAKERS HAVE MADE IT ABUNDANTLY CLEAR THAT THE LIMITATION PERIOD IMPOSED IN PROVISO TO SECTION 143(2) WAS NOT APPL ICABLE TO THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S.148. AS THIS I S SUBSTANTIVE PROVISION OF LAW, THE ASSESSEES SUBMISSION IN THIS REGARD HA VE NO FORCE AND THE SAME ARE REJECTED. ACCORDINGLY, NOTICE U/S.143(2) WAS VALIDLY SERVED WITHIN LIMITATION. FURTHER, LD D.R. REFERRED TO TH E DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. MRS C. MALATHY, 294 I TR 532 (MAD), WHEREIN, IT WAS HELD THAT BY VIRTUE OF PROVISO TO SECTI ON 148 INSERTED BY THE FINANCE ACT, 2006, NOTICE U/S.143(2) ISSUED BEYOND 12 MO NTHS FROM THE DATE OF FILING RETURN BUT BEFORE EXPIRY OF TIME LIM IT FOR MAKING ASSESSMENT, REASSESSMENT, OR RECOMPUTATION AS SPECIFIED IN SUB-SECTION (2) OF SECTION 153 SHALL NOT BE INVALID AND PRAYED FOR ALLOWING THE APPEAL OF THE REVENUE. 5. CONTRA, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSE SSEE HAS FILED RETURN OF INCOME FOR BOTH THE ASSESSMENT YEARS ON 2.12.2 009 AN D IN RESPONSE TO NOTICE DATED 2.12.2009 U/S.148 OF THE ACT. WHEREAS, THE NOTICES U/S. 148 AND143(2) AND WERE ISSUED ON 2.12.2009 BUT IT SHOULD HAVE BEEN ISSUED WITHIN THE TIME PRESCRIBED U/S.143(2)(II) OF THE ACT AFTER FILING THE RETURN OF INCOME. SUBSEQUENTLY, NOTICES U/S.143(2) FOR BOTH THE ASSESSMENT YEARS WERE ISSUED ON 18.11.2010. AS PER PROVISO TO SECTION 143(2)(II), NO NOTICE UNDER CLAUSE (2) SHALL BE SERVED AFTER EXPIRY OF SIX 4 M/S. RADIUS CORPORATION LTD MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH TH E RETURN OF INCOME WAS FURNISHED. IN THE PRESENT CASE THE RETURN OF INCOME WAS FURNISHED ON 12.12.2009, THEREFORE, NOTICE U/S.143(2) COULD HAVE BEEN ISSUED UPTO 30.9.2010, WHEREAS NOTICES WERE ISSUED ON 18.11.2010. A CCORDINGLY, NOTICE U/S. 143(2) OF THE ACT ISSUED ON 18.11.2010 IS BEYOND THE TIME LIMIT PRESCRIBED BY PROVISO TO SECTION 143(2)(II) OF THE ACT. THEREFORE, THE LD A.R URGED THAT SINCE THERE IS NO VALID NOTICE ISSUED BY THE REVENUE, THE ORDER OF THE CIT(A) IN TREATING THE NOTICE AS INVALID IS JUSTIF IED AND RELIED ON THE ORDER OF THE CIT(A). 6. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATER IAL ON RECORD OF THE CASE. WE FIND THAT UNDISPUTEDLY NOTICE UNDER SECTION 148 OF THE ACT AND U/S.143(2) WAS ISSUED ON 2.12.2009 AND SUBSEQUENTLY, THE NOTICE U/S.143(2) WAS ISSUED ON 18.11.2010, WHICH IS BEYOND THE TIME LIMIT PRESCRIBED BY PROVISO TO SECTION 143(2)(II) OF THE ACT. THE ISSUANCE OF THIS NOTICE COULD NOT COMPLY THE REQUIREMENT OF LAW. AS PER THE PROVISION, THE NOTICE UNDER SECTION 143(2) OF THE ACT HAS TO BE ISSUED ONLY AFTER FILING OF THE RETURN OF INCOME AND NOT EARLIER. THE LD CIT(A) HAS HELD THAT THERE IS NO VALID NOTICE U/S.143(2) OF THE ACT, THEREFORE, THE COM PLETION OF REASSESSMENT WITHOUT A VALID NOTICE U/S.,143(2) IS NOT VALID. FOR THIS PROPOSITION, THE LD CIT(A) RELIED ON THE DECISION OF HONBLE APEX COURT I N THE CASE OF CIT VS. HOTEL BLUE MOON, 229 CTR (SC) 212, WHEREIN, IT HAS B EEN HELD THAT OMISSION 5 M/S. RADIUS CORPORATION LTD ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UND ER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NO T CURABLE AND, THEREFORE, THE REQUIREMENT OF NOTICE U/S.143(2) CANNOT BE DISPENSED WITH. WE FIND THAT THE FINDINGS AND THE DECISION OF THE CIT (A) ARE IN CONSONANCE WITH THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA). ACCORDINGLY, WE UPHOLD THE FINDINGS OF THE CI T(A) AND DISMISS THE ADDITIONAL GROUNDS RAISED BY THE REVENUE FOR THE BOTH THE ASSESSMENT YEARS. 7. AS THE NOTICE U/S.143(2) ISSUED BY THE ASSESSING OFFICER IS INVALID, AS DEALT ABOVE, THE REASSESSMENT ORDER FOR BOTH THE ASSESSMEN T YEARS IS ALSO INVALID AND, THEREFORE, THERE IS NO NEED TO ADJUDICA TE THE GROUND ON MERITS BY THE CIT(A). 8. IN THE RESULT, APPEALS FOR THE ASSESSMENT YEARS 2007- 08 AND 2008-09 ARE DISMISSED. ORDER PRONOUNCED ON 11 /01/2018. SD/- SD/- (N.S SAINI) ( PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIALMEMBER RAIPUR; DATED 11 /01/2018 B.K.PARIDA, SPS 6 M/S. RADIUS CORPORATION LTD COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, RAIPUR 1. THE APPELLANT: ASST. COMMISSIONER OF INCOME TAX - 1(2), RAIPUR. 2. THE RESPONDENT. M/S. RADIUS CORPORATION LTD., 57/58, VARDHMAN NAGAR, RAJNANDGAON, C.G 3. THE CIT(A)-RAIPUR 4. PR.CIT-RAIPUR 5. DR, ITAT, RAIPUR 6. GUARD FILE. //TRUE COPY//