Asstt. Commissioner of Income Tax, Kanpur V. M/s Allaince Builders & Contractors Pvt. Ltd., Bareilly

ITA 204/LKW/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100495 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 26-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R RASTOGI
• Keywords: Assessment record
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.204/LKW/2014 ASSESSMENT YEAR:2009-10 ACIT CENTRAL CIRCLE II KANPUR V. M/S ALLIANCE BUILDERS & CONTRACTORS PVT. LTD. NEELKANTH FLATS, STADIUM ROAD BAREILLY TAN/PAN:AAECA8217A (APPELLANT) (RESPONDENT) ITA NO.93/LKW/2014 ASSESSMENT YEAR:2009-10 M/S ALLIANCE BUILDERS & CONTRACTORS PVT. LTD. NEELKANTH FLATS, STADIUM ROAD BAREILLY V. ACIT CENTRAL CIRCLE II KANPUR TAN/PAN:AAECA8217A (APPELLANT) (RESPONDENT) C.O. NO.11/LKW/2014 [IN ITA NO.204/LKW/2014] ASSESSMENT YEAR:2009-10 M/S ALLIANCE BUILDERS & CONTRACTORS PVT. LTD. NEELKANTH FLATS, STADIUM ROAD BAREILLY V. ACIT CENTRAL CIRCLE II KANPUR TAN/PAN:AAECA8217A (CROSS OBJECTION) (RESPONDENT) ASSESSEE BY: SHRI. K. R. RASTOGI, C.A. DEPARTMENT BY: SMT. ALKA SINGH, D.R. DATE OF HEARING: 17 11 2015 DATE OF PRONOUNCEMENT: 29 12 2015 :- 2 -: O R D E R PER SUNIL KUMAR YADAV: THESE CROSS-APPEALS ARE PREFERRED BY THE ASSESSEE AS WELL AS THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) PERTAINING TO ASSESSMENT YEAR 2009-10. AGAINST THE REVENUES APPEAL, THE ASSESSEE HAS ALSO FILED CROSS OBJECTION. 2. SINCE THESE APPEALS AND CROSS OBJECTION WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. IN THE ASSESSEES APPEAL, THE ASSESSEE HAS RAISED A PRELIMINARY OBJECTION WITH REGARD TO THE VALIDITY OF THE ASSESSMENT, WITH THE SUBMISSION THAT NOTICE UNDER SECTION 143(2) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WAS NOT SERVED UPON THE ASSESSEE BY A COMPETENT ASSESSING OFFICER WITHIN THE PRESCRIBED PERIOD. SINCE THE LEGAL GROUND GOES TO THE ROOT OF THE CASE, WE PREFER TO ADJUDICATE IT AT THRESHOLD BEFORE DEALING WITH THE ISSUES ON MERIT. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT HE HAS E-FILED THE RETURN OF INCOME SHOWING AN INCOME OF RS.1,12,81,860/- ON 30.9.2009. THOUGH THE ASSESSING OFFICER HAS MENTIONED IN HIS ORDER THAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED ON 27.9.2010 AND WAS SERVED UPON THE ASSESSEE ON 29.9.2010, BUT IN FACT NO SUCH NOTICE WAS EVER ISSUED UPON THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO INVITED OUR ATTENTION TO THE FACT THAT THOUGH THE ASSESSING OFFICER HAVING JURISDICTION OVER THE ASSESSEE WAS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, KANPUR BUT NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED BY THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, BAREILLY. HAVING REALIZED THAT THE DY. :- 3 -: COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, BAREILLY DID NOT HAVE JURISDICTION OVER THE ASSESSEE, HE TRANSFERRED THE CASE RECORD FOR THE IMPUGNED ASSESSMENT YEAR TO THE ADDL. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3, KANPUR VIDE HIS LETTER DATED 19.5.2011 HAVING RELIED UPON THE ORDER PASSED UNDER SECTION 141/127 OF THE ACT BY THE COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, KANPUR ON 15.7.2005. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT THEREFORE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT BY THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, BAREILLY ON 24.8.2010, WHICH WAS SERVED UPON THE ASSESSEE, IS NOT A VALID NOTICE, AS IT WAS NOT ISSUED BY A COMPETENT ASSESSING OFFICER. THE ASSESSING OFFICER HAVING JURISDICTION OVER THE ASSESSEE IS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, KANPUR. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO OBTAINED CERTIFIED COPIES OF THE ORDER SHEET OF THE PROCEEDINGS OF THE ASSESSING OFFICER IN ORDER TO ESTABLISH THAT IN THE ORDER SHEET ON 27.9.2010, THE ASSESSING OFFICER HAS RECORDED THAT THE CASE SELECTED FOR SCRUTINY AS PER COMPULSORY GUIDELINES FOR SELECTION. ON THE SAME DAY, HE HAS RECORDED ANOTHER PROCEEDING TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT FOR COMPLIANCE ON 14.10.2010. BUT THERE WAS NO PROCEEDING ON 14.10.2010. THE NEXT ORDER SHEET ENTRY WAS RECORDED ON 11.2.2011, IN WHICH IT WAS AGAIN RECORDED TO ISSUE FRESH NOTICE UNDER SECTION 143(2) OF THE ACT FOR 25.2.2011, MEANING THEREBY THAT TILL 11.2.2011 NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED UPON THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT THE ASSESSING OFFICER HAS RECORDED INCORRECT FACTS IN THE ASSESSMENT ORDER THAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED ON 27.9.2010 AND IT WAS SERVED UPON THE ASSESSEE ON 29.9.2010. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT STATING THEREIN THAT HE HAS PERSONALLY INSPECTED ASSESSMENT RECORD, IN WHICH NO COPY OF NOTICE :- 4 -: ALLEGEDLY ISSUED ON 27.9.2010 IS AVAILABLE. IN THE LIGHT OF THE AFFIDAVIT FILED BY THE ASSESSEE, THE ASSESSMENT RECORD WAS SUMMONED AND WAS EXAMINED DURING THE COURSE OF HEARING OF THE APPEAL AND IT IS NOTICED THAT THERE IS NO COPY OF NOTICE ALLEGEDLY ISSUED ON 27.9.2010 UNDER SECTION 143(2) OF THE ACT. THE LD. D.R. WAS ALSO DIRECTED, DURING THE COURSE OF HEARING, TO PLACE ANY EVIDENCE ON RECORD WITH REGARD TO THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT UPON THE ASSESSEE FOR COMPLETING THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT WITHIN THE PRESCRIBED PERIOD. IT WAS ALSO POINTED OUT TO THE LD. D.R. THAT FROM THE CERTIFIED COPY OF THE PROCEEDINGS, THE ASSESSING OFFICER HAS RECORDED PROCEEDINGS ON 27.9.2010 STATING THEREIN THAT NOTICE WAS ISSUED UNDER SECTION 143(2) OF THE ACT FOR ITS COMPLIANCE ON 14.10.2010, BUT THERE WAS NO PROCEEDING OF 14.10.2010 AND THEREAFTER NEXT DATE OF PROCEEDING WAS ONLY ON 11.2.2011. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLACED A COPY OF THE TRANSFER ORDER PASSED UNDER SECTION 127 OF THE ACT BY THE CIT, CENTRAL, KANPUR VIDE ORDER DATED 15.7.2005 ALONG WITH COPY OF THE ASSESSMENT ORDER FOR EARLIER ASSESSMENT YEARS, WHICH WERE PASSED BY THE DCIT, CENTRAL 2, KANPUR. 5. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IN THE LIGHT OF THE ABOVE FACTS, WHERE THE NOTICE UNDER SECTION 143(2) OF THE ACT HAS NOT BEEN SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED PERIOD, THE ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE ACT IS NOT VALID AND DESERVES TO BE QUASHED. 6. THE LD. D.R., ON THE OTHER HAND, BESIDES PLACING RELIANCE UPON THE ORDERS OF THE LOWER AUTHORITIES, HAS SUBMITTED THAT THE ASSESSING OFFICER HAS RECORDED CORRECT FACTS IN HIS ORDER THAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED UPON THE ASSESSEE ON 29.9.2010. IN SUPPORT OF HIS CONTENTION, HE HAS PRODUCED THE COPY OF THE REGISTER IN WHICH ENTRIES OF NOTICES ISSUED WERE RECORDED TO SUBSTANTIATE HIS CLAIM :- 5 -: THAT ON 28.9.2010 NOTICE WAS ISSUED TO THE ASSESSEE. ONCE NOTICE WAS ISSUED, THE SAME MUST HAVE BEEN SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED PERIOD. HE HAS FURTHER PLACED RELIANCE UPON PROVISIONS OF SECTION 292BB OF THE ACT, ACCORDING TO WHICH ONCE THE ASSESSEE HAS JOINED THE PROCEEDINGS, NOTICE REQUIRED TO BE SERVED UPON ASSESSEE IS DEEMED TO HAVE BEEN SERVED. THEREFORE, IN THE LIGHT OF THIS PROVISION, THE ASSESSEE CANNOT RAISE THIS PLEA BEFORE THE TRIBUNAL IN ORDER TO INVALIDATE THE ASSESSMENT ORDER. 7. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES AND THE DOCUMENTS PLACED ON RECORD IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE PROVISIONS OF SECTION 292BB OF THE ACT WAS BROUGHT ON RECORD BY THE FINANCE ACT, 2008 W.E.F. 1.4.2008 AND THE ASSESSMENT YEAR INVOLVED IS 2009-10. BUT IN THIS CASE, THE PROVISIONS OF SECTION 292BB OF THE ACT WOULD NOT BE APPLIED, AS THE ASSESSEE HAS RAISED A PRELIMINARY OBJECTION BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS TAKEN A PLEA BEFORE THE ASSESSING OFFICER THAT NO NOTICE WAS ISSUED BY A COMPETENT OFFICER UPON THE ASSESSEE. WE HAVE ALSO CAREFULLY PERUSED THE PROCEEDINGS RECORDED BY THE ASSESSING OFFICER AND WE FIND THAT THOUGH THE ASSESSEE HAS FILED ITS RETURN OF INCOME TREATING ITS ASSESSING OFFICER TO BE THAT OF DCIT, CENTRAL CIRCLE 2, KANPUR, BUT DCIT, CIRCLE 1, BAREILLY HAS ALSO TAKEN UP THE CASE FOR SCRUTINY AND ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT, WHICH WAS SERVED UPON THE ASSESSEE. IT IS ALSO AN UNDISPUTED FACT THAT VIDE ORDER DATED 15.12.2005, THE CIT, CENTRAL, KANPUR HAS TRANSFERRED THE JURISDICTION OF THE ASSESSEE FROM ACIT, CENTRAL CIRCLE, BAREILLY TO DCIT, CENTRAL CIRCLE, KANPUR. THEREAFTER, ASSESSMENTS FOR ASSESSMENT YEARS 2006-07, 2007-08 AND 2008-09 WERE PASSED BY THE DCIT, CENTRAL CIRCLE 2, KANPUR. IN THE LIGHT OF THESE FACTS, THERE IS NO IOTA OF DOUBT THAT DCIT, CENTRAL CIRCLE 1, BAREILLY WAS NOT :- 6 -: HAVING JURISDICTION OVER THE ASSESSEE AT THE RELEVANT POINT OF TIME. MOREOVER, HAVING REALIZED THE MISTAKE, THE DCIT, CENTRAL CIRCLE, BAREILLY HAS ALSO TRANSFERRED THE ASSESSMENT RECORD TO ACIT, KANPUR VIDE HIS LETTER DATED 19.5.2011. THEREFORE, THE ASSESSING OFFICER HAVING JURISDICTION OVER THE ASSESSEE IS ONLY ACIT/DCIT, CENTRAL CIRCLE 2, KANPUR. SO FAR AS ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT BY THE DCIT, CENTRAL CIRCLE 2, KANPUR IS CONCERNED, WE FIND THAT HE HAS ALSO TAKEN UP THE CASE FOR SCRUTINY ON 27.9.2010 AND ALSO ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT FOR ITS COMPLIANCE ON 14.10.2010. BUT THERE IS NO PROCEEDING ON 14.10.2010 IN THE ORDER SHEET. THEREAFTER, ON 11.2.2011 THE ASSESSING OFFICER HAS RECORDED PROCEEDING TO ISSUE FRESH NOTICE UNDER SECTION 143(2) OF THE ACT FOR 25.2.2011, MEANING THEREBY UPTO 11.2.2011 NOTICE UNDER SECTION WAS NOT SERVED UPON THE ASSESSEE. AGAIN ON 8.9.2011, NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED BESIDES NOTICE UNDER SECTION 142(1) OF THE ACT CONTAINING QUESTIONNAIRE FOR COMPLIANCE ON 16.9.2011. FOR THE SAKE OF REFERENCE, WE RECORD THE PROCEEDINGS RECORDED BY THE ASSESSING OFFICER HEREUNDER:- ASSESSMENT YEAR 2009-10 27.9.2010 CASE SELECTED FOR SCRUTINY AND COMPULSORY GUIDELINES FOR SELECTION. 27.9.2010 ISSUE NOTICE UNDER SECTION 143(2) FOR COMPLIANCE ON 14.10.2010. 11.2.2011 ISSUE FRESH NOTICE UNDER SECTION 143(2) FOR 25.2.2011. 8.9.2011 ISSUE NOTICE UNDER SECTION 143(2) AND NOTICE UNDER SECTION 142(1) QUESTIONNAIRE FOR COMPLIANCE ON 16.9.2011. :- 7 -: 8. IN SUPPORT OF THESE CONTENTIONS, THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT OF SHRI. AMANDEEP SINGH, DIRECTOR OF THE COMPANY DEPOSING THEREIN THAT HE HAS INSPECTED THE RECORD OF THE ASSESSING OFFICER OF THE DCIT, CENTRAL CIRCLE 3, KANPUR AND HE DID NOT FIND ANY EVIDENCE WITH RESPECT TO THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT UPON THE ASSESSEE AS ALLEGED BY THE ASSESSING OFFICER IN HIS ORDER IN THE OPENING PARAGRAPH. IN ORDER TO VERIFY THE FACTS, THE ASSESSMENT RECORD WAS ALSO SUMMONED AND PERUSED, AND WE FIND THAT EVEN THE COPY OF THE NOTICE ALLEGEDLY ISSUED ON 27.9.2010 WAS NOT AVAILABLE IN THE FILE. THERE WAS NO EVIDENCE IN THE FILE WITH RESPECT TO THE SERVICE OF NOTICE UNDER SECTION 1243(2) OF THE ACT. DURING THE COURSE OF HEARING, THE REGISTER WAS PRODUCED, WHICH CONTAINS ENTRY WITH REGARD TO THE ISSUANCE OF NOTICE, BUT IT IS NOT CLEAR FROM THE ENTRIES WHAT TYPE OF LETTER WAS ISSUED. DURING THE COURSE OF HEARING, THE LD. D.R. WAS ALSO SPECIFICALLY ASKED TO PRODUCE EVIDENCE WITH REGARD TO THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT. BUT NOTHING WAS PLACED ON RECORD. IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS NEVER SERVED BY A COMPETENT OFFICER WITHIN THE PRESCRIBED PERIOD UPON THE ASSESSEE, AS IT WAS REQUIRED TO BE SERVED BEFORE 30.9.2010. 9. THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT IS MANDATORY FOR ASSUMING JURISDICTION TO FRAME ASSESSMENT OVER THE ASSESSEE AS PER PROVISIONS OF SECTION 143(2) OF THE ACT AND IF THE NOTICE IS NOT SERVED WITHIN THE PRESCRIBED PERIOD, THE ASSESSMENT FRAMED CONSEQUENT THERETO IS NOT A VALID ASSESSMENT AND DESERVES TO BE QUASHED. IN THE INSTANT CASE, SINCE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT SERVED WITHIN THE PRESCRIBED PERIOD, THE ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE ACT IS NOT SUSTAINABLE IN THE EYES OF LAW AND WE ACCORDINGLY QUASH THE SAME. :- 8 -: 10. SINCE WE HAVE QUASHED THE ASSESSMENT, WE FIND NO JUSTIFICATION TO DEAL WITH THE APPEALS AND CROSS OBJECTION ON MERIT. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED AND THAT OF THE REVENUE IS DISMISSED. THE CROSS OBJECTION OF THE ASSESSEE HAS ALSO BECOME INFRUCTUOUS. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED AND APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:29 TH DECEMBER, 2015 JJ:1112 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR