ITO, Ward 10(2), Pune V. Shri Rameshwar Dayal, Pune

ITA 2037/PUN/2012

• Counselvise Citation: 203724514 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 22-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Assessee Lawyers: K SRINIVASAN
• Keywords: Invalid notice; Validity of assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.2037/PN/2012 A.Y. 2007-08 ITO, WARD 10(2), PUNE APPELLANT VS. SHRI RAMESHWAR DAYAL 57 TELCO SENIOR OFFICERS HSG SOCIETY, PIMPRI, PUNE 411018 PAN: AARPD5261F RESPONDENT APPELLANT BY : SHRI P.L. P ATHADE RESPONDENT BY : SHRI K. SRINIVASAN DATE OF HEARING: 03.03.2014 DATE OF ORDER : 30.04.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-V, [SHORT CI T(A)-V] PUNE, DATED 12.07.2012 FOR A.Y. 2007-08 ON THE FOLLOWING GROUNDS. 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN HOLDING THAT SERVI CE OF NOTICE U/S. 143(2) WAS INVALID AND THEREFORE QUASHING THE ASSESSMENT ORDER? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN HOLDING THAT NOTIC E U/S. 143(2) ISSUED BY THE ASSESSING OFFICER ON 05.09.200 8 AS- 'INVALID' WHEN THE SAME WAS ISSUED AND DEEMED TO HA VE BEEN SERVED WITHIN THE STATUTORY TIME LIMIT AS PER APPLICABLE AMENDED PROVISIONS OF CLAUSE(II) OF SUB SECTION (2) OF SECTION 143 OF THE I.T.ACT INTRODUCED BY THE FIN ANCE ACT, 2008. 2 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN ANNULLING THE ASSE SSMENT ORDER EVEN THOUGH THE EXPLANATORY NOTES TO THE PROV ISIONS OF FINANCE ACT ISSUED BY THE CBDT UNDER CIRCULAR NO.1 OF 2009 MAKES IT CLEAR THAT PROVISIONS OF NEW SECTION 292BB SHALL APPLY IN ALL PROCEEDINGS WHICH ARE PEND ING ON 1ST APRIL, 2008? 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN ANNULLING THE ASSE SSMENT ORDER WITHOUT CONSIDERING THE EXPLANATORY NOTES TO THE FINANCE ACT, 2008, ISSUED VIDE CBDT'S CIRCULAR NO. 01 OF 2009? 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER A NY OF THE ABOVE GROUNDS OF APPEAL. 2. THE ASSESSEE IS A PENSIONER. THE ISSUE BEFORE U S IS WITH REGARD TO VALIDITY OF ASSESSMENT AT THE ISSUING THE NOTICE U/S.143(2) SERVED BEYOND 12 MONTHS FROM THE DATE OF FILING OF RETURN. THE ASSESSING OFFICER ISSUED NOTICE U/S.14 3(2) OF I.T. ACT ON 05.09.2008 I.E. WELL BEYOND THE PERIOD OF 12 MO NTHS FROM THE DATE OF FILING OF RETURN WHICH IS 24.04.2007. THE STAND OF THE ASSESSEE HAS BEEN THAT NOTICE U/S.143(2) IS BAD IN LAW AND THEREFORE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN COMPLETING THE ASSESSMENT ON THE BASIS OF INVALID NOTICE. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS D RAWN SUPPORT FROM THE PROVISIONS OF SECTION 292BB OF I.T . ACT TO JUSTIFY THE REVENUES ACT. IT IS SEEN THAT THE PROVISIONS OF SECTION 292BB HAS BEEN BROUGHT INTO THE STATUTE W.E.F 01.04.2008 I.E. A.Y. 2008-09 ONWARDS. IN THIS CASE, SINCE THE ASSESSMEN T WAS INVOLVED FOR A.Y. 2007-08, IT COULD NOT BE SAID THA T THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS PROTECTED BY THE PROVISIONS OF SECTION 292BB OF ACT AS SUBMITTED BY ASSESSING OFFICER. THEREFORE, THE CIT(A) HELD THAT THE ASSESS ING OFFICER HAS PASSED THE ORDER ON THE BASIS OF INVALID NOTICE IS BAD IN LAW AND THE SAME WAS ANNULLED. 3 3. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATI VE HAS SUBMITTED REGARDING THE ASSESSEE'S SUBMISSION THAT THE CASE IS SQUARELY COVERED BY THE DECISIONS OF HON'BLE ALLAHA BAD HIGH COURT IN THE CASE OF TULSI FOOD PRODUCTS VS. DY. CI T AND SOME OTHER CASES. ACCORDING TO LEARNED DEPARTMENTAL REP RESENTATIVE, THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF TUL SI FOOD PRODUCTS V/S DY. CIT (2012) 81 CCH 008 (ALL HC) HAS CONSIDERED THE LEGAL ASPECT AND NOT LOOKED INTO THE PROCEDURAL ASPECT OF THE ISSUE INVOLVED. AMENDMENT TO S 143(2) IS A PROCEDUR AL AMENDMENT AND AS HELD BY VARIOUS JUDICIAL FORUMS IN CLUDING THE HON'BLE ALLAHABAD HIGH COURT ITSELF, PROCEDURAL AME NDMENTS ARE RETROSPECTIVE IN NATURE UNLESS SPECIFIC EXCEPTION I S MADE. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS RAISED DETA ILED ARGUMENTS ON THE ISSUE WITH REQUEST NOT TO FOLLOW T HE RATIO OF TULSI FOOD PRODUCTS (SUPRA). ACCORDING TO US, THIS REQUEST IS AGAINST THE JUDICIAL NAMES. IN SUM AND SUBSTANCE, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT THE AMENDMENT BY WHICH THE PROVISIONS OF SECTION 292BB HAS BEEN B ROUGHT UNDER STATUTE ON RETROSPECTIVE, SO THE ORDER OF CIT (A) BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. ON THE OTHER HAND, LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT TH IS ISSUE IS COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF HO NBLE HIGH COURT OF ALLAHABAD IN THE CASE OF TULSI FOOD PRODUC TS VS. DY.CIT (2012) 81 CCH 008 (ALL HC), WHEREIN, IT WAS HELD TH AT THE RETURN U/S.139(1) WAS FILED ON 24.07.2007, A NOTICE U/S.14 3(2) AND 115WD ISSUED ON 26.09.2008 WAS HELD AS BARRED BY LI MITATION BY OBSERVING AS THAT AMENDED PROVISO TO SECTION 143(2) BY BILL, 2008 WAS NOT APPLICABLE. A SIMILAR VIEW HAS BEEN TAKEN BY THE DELHI SPECIAL BENCH IN THE CASE OF KUMBER TOBACCO PRODUCT S P. LTD. VS. DY.CIT (2009) 310 ITR (AT)300 (DELHI) (SB), WHE REIN, IT WAS HELD THAT THE PROVISIONS OF SECTION 292BB INSERTED W.E.F. 01.04.2008 ARE NOT RETROSPECTIVE. 4 4. HAVING CONSIDERED RIVAL SUBMISSIONS, MATERIAL ON RECORD AND LEGAL POSITION ON THE ISSUE, WE ARE NOT INCLINE D TO INTERFERE WITH THE FINDING OF CIT(A) WHO HAS ANNULLED THE ASS ESSMENT ORDER ON THE GROUND THAT THE ASSESSING OFFICER HAS ISSUED NOTICE U/S.143(2) OF ACT BEYOND PERIOD OF 12 MONTHS FROM T HE DATE OF FILING OF RETURN. ACCORDINGLY, THE ORDER OF CIT(A) IS UPHELD. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 30 TH OF APRIL, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 30 TH APRIL, 2014 GCVSR COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-V, PUNE 4) THE CIT-V, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE