GURUMURTI BALAKRISHNAN, NAVI MUMBAI V. I.T.O.WD. 22(3)(1), NAVI MUMBAI

ITA 214/MUM/2013

• Counselvise Citation: 21419914 RSA 2013
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 10-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 07-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R N DSOUZA
• Keywords: Period of limitation; Time period of passing order
• Section: 144; 142(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G , BENCH MUMBAI , BEFORE SHRI R.C.SHARMA , A M & VIVEK VARMA , J M ITA NO. 214 / MUM/20 1 3 ( ASSESSMENT YEAR : 200 8 - 09 ) MR. GURUMURT Y BALAKRISHNAN, FLAT NO. 302, 3 RD FLOOR, SHREE KRISHNA NIWAS, PLOT NO. 26, SECTOR - 21, NERUL, NAVI MUMBAI - 400 706 VS. ITO, WARD - 22(3)(1), VASHI, MUMBAI - 400 703 PAN/GIR NO. : A EZPG 2795 K ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI GURUMURTY BALAKRISHNAN - A SSESSEE PRESENT IN PERSON. /REVENUE BY : SHRI R.N.DSOUZA D ATE OF HEARING : 10 TH NOVEMBER , 201 4 DATE OF PRONOUNCEMENT 19 TH DECEMBER , 201 4 O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER CIT(A) DATED 29 - 10 - 2012 , IN THE MATTER OF OR DER PASSED U/S. 14 4 OF THE I.T. ACT, FOR THE ASSESSMENT YEAR 200 8 - 09 . 2 . THE ASSESSEE IS BASICALLY AGGRIEVED FOR NON - SERVICE OF NOTICE U/S. 143(2). ACCORDINGLY, ASSESSMENT ORDER WAS ARGUED TO THE SET ASIDE AS ANNULLED. 3. WITH REGARD TO THE MERITS OF THE AD DITION, THE CONTENTION OF ASSESSEE WAS THAT NO OPPORTUNITY WAS GIVEN BY THE LOWER AUTHORITIES TO SUBSTANTIATE ITA NO. 214 / 13 2 ITS C LAIM ON LONG TERM CAPITAL GAIN. AS PER LEARNED AR THE LONG TERM CAPITAL GAIN EARNED ON SALE OF HOUSE WAS REINVESTED IN ANOTHER HOUSE AND SINC E THE CAPITAL GAIN SO EARNED WAS EXEMPT FROM TAX ON ACCOUNT OF INVESTMENT IN NEW HOUSE, THE SAME WAS NOT DISCLOSED IN THE RETURN OF INCOME. 4. AS PER LD. AR, SINCE THE ASSESSEE HAS SUFFERED A PARALYTIC ATTACK AND WAS SHIFTE D TO HIS RELATIVE HOME IN PAREL, THEREFORE, HE COULD NOT INTIMATE THE INCOME TAX DEPARTMENT ABOUT HIS BAD HEALTH. 5 . RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. WE FOUND THAT ASSESSEE HAS FILED HIS RETURN OF INCOME ON 3 - 12 - 2008, DECLARING TOTAL INCOME AT RS. 2,31,530/ - . ON THE B ASIS OF AIR INFORMATION, CASE WAS SELECTED FOR SCRUTINY. AT PAGE 1 OF AOS ORDER, THE AO STATED THAT NOTICE/ S.143(2) AND 142(1) OF THE ACT, DATED 31 - 8 - 2010 WAS SENT BY REGISTERED POST AND THE SAME WAS RETURNED BACK BY THE POSTAL AUTHORITY WITH THE REMARK LEFT ON 8 - 9 - 2010. AS PER AO SUBSEQUENTLY WARD INSPECTOR WAS DEPUTED TO CONDUCT ENQUIRIES AND IT WAS REPORTED THAT ASSESSEE HAS LEFT THE GIVEN ADDRESS AND NO ONE KNOWS THE WHEREABOUTS OF THE ASSESSEE, HENCE, NOTICE HAS BEEN SERVER THROUGH AFFIXTURES ON THE LAST GIVEN ADDRESS. 6 . IT IS CLEAR FROM THE OBSERVATION OF THE AO THAT NOTICE U/S.143(2) WAS ISSUED ON 31 - 8 - 2010 IN RESPECT OF RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008 - 09 FILED ON 3 - 12 - 2008. AS PER PROVISIO NS OF SECTION 143(2) CLAUSE (II) LIM ITATION PR OVISO, NO NOTICE U/S . 143(2)(II) IS REQUIRED TO BE SERVED AFTER EXPIRY OF SIX MONTHS FROM THE END OF THE RELEVANT FINANCIAL YEAR IN WHICH RETURN WAS FILED. UNDISPUTEDLY IN THE INSTANT CASE RETURN WAS ITA NO. 214 / 13 3 FILED ON 3 - 12 - 2008, THE FINANCIAL YEAR ENDS ON 31 - 3 - 2009 AND THEREAFTER COMPLETED SIX MONTHS FROM THE END OF THE RELEVANT FINANCIAL YEAR AND THE LAST DATE OF SERVICE OF NOTICE U/S.143(3)(2)(II) EXPIRES ON 30 - 9 - 2009. HOWEVER, THE NOTICE U/S.143(2) WAS ISSUED ON 31 - 8 - 2010, WHICH IS APPARENTLY BEYOND THE LIMITATION PERIOD PRESCRIBED U/S.143(2)(II). ACCORDINGLY, THE ASSESSMENT FRAMED IN PURSUANT OF THE NOTICE U/S.143(2), WHICH HAS BEEN ISSUED BEYOND THE LIMITATION PERIOD, HAS NO LEGS TO STAND. ACCORDINGLY, WE ANNUL THE ASSESSMENT SO FRAMED AS A RESULT OF NOTICE ISSUE D BEYOND THE STATUTORY LIMIT PRESCRIBED U/S. 143(2)(II) OF THE I.T. ACT. 7 . WITH REGARD TO THE MERIT S OF ADDITION, S INCE WE HAVE ALREADY ANNULLED THE ASSESSMENT ON THE PLEA OF LIMITATION PERIOD, WE ARE NOT GOING TO DECIDE THE OTHER GROUNDS RAISED BY THE ASS ESSEE WITH REGARD TO THE MERIT S OF ADDITION. 8 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED IN PART, IN TERMS INDICATED HEREINABOVE . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 /1 2 / 201 4 . 19 /1 2 / 2014 SD/ - SD/ - ( ) ( VIVEK VARMA ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCO UNTANT MEMBER MUMBAI ; DATED 19 / 1 2 /2014 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT ITA NO. 214 / 13 4 / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//