T.D. Muthukumar, CHENNAI V. ACIT, CHENNAI

ITA 2198/CHNY/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96291 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 13-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 16-12-2013
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: J PRABHAKAR
• Section: 143(3)

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER I.T.A.NO. 2198/MDS/2013 ASSESSMENT YEAR : 2007 - 08 MR. T.D. MUTHUKUMAR, NO.12, COASTAL ROAD, KALAKSHETRA COLONY, BESANT NAGAR, CHENNAI 600 090. [PAN: A D G P T0440E ] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE IV, CHE NNAI 600 034. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI J. PRABHAKAR, C.A. / RESPONDENT BY : SHRI A. B. KOLI , J CIT / DATE OF HEARING : 13 . 1 0 .201 5 / DATE OF P RONOUNCEMENT : 29 . 1 0 .201 5 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : TH I S APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , CHENNAI , DATED 29 . 1 0 .20 13 RELEVANT TO THE ASSESSMENT YEAR 2007 - 08. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN ON 11.01.2008 DECLARING INCOME OF .10,14,450/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) OF THE INCOME TAX AC T, 1961 [ ACT IN SHORT] DATED 17.07.2008 WAS SERVE D ON THE I.T.A. NO . 2198 /M/ 13 2 ASSESSEE ON 28.08.2008 THROUGH AFFIXATION ON THE PREMISES OF THE ASSESSEE AND THEREAFTER, ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT DETERMINING ASSESSED INCOME AT .19,27,980/ - . 3 . THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) AND CHALLENGED THAT THE ISSUANCE OF NOTICE UNDER SECTION 143(3) OF THE ACT IS BAD IN LAW. THE LD. CIT(A) , AFTER CONSIDERING THE WRITTEN SUBMISSIONS OF THE ASSESSEE, REJECTED THE ARGUMENTS O F THE ASSESSEE BY HOLDING THAT THE NOTICE WAS VALIDLY SERVED ON THE ASSESSEE. 4. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE AND THEREFORE, THE ASSESSMENT COMPLETED WITHOUT SERVICE OF NOTICE SHOULD BE QUASHED. 5. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT NOTICE UNDER SECTION 143(2) OF THE ACT DATED 17.07.2008 WAS SERVED ON THE ASSESSEE ON 28.08.2008 THR OUGH AFFIXATION ON THE PREMISES OF THE ASSESSEE AND RELIED ON THE ORDER PASSED BY THE LD. CIT(A). HE ALSO SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO ASSESSING OFFICER FOR VERIFICATION. 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN THE APPEAL OF THE ASSESSEE, THE ASSESSEE HAS RAISED MA N Y GROUNDS AND THE FIRST GROUND RELATES TO VALIDITY OF I.T.A. NO . 2198 /M/ 13 3 ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. IN THE ASSESSMENT ORDER, THE ASSESSING OFF ICER HAS STATED THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT DATED 17.07.2008 WAS SERVED ON THE ASSESSEE ON 28.08.2008 THROUGH AFFIXATION ON THE PREMISES OF THE ASSESSEE. HOWEVER, NOTHING WAS MENTIONED IN THE ASSESSMENT ORDER AS WELL AS IN THE ORDER OF THE LD. CIT(A) ABOUT THE SERVICE OF NOTICE INITIALLY THROUGH POSTAL DEPARTMENT . THE LD. CIT(A) HAS NOT PASSED A SPEAKING ORDER ON THIS ISSUE. IN RESPONSE TO THE QUERY RAISED BY THE BENCH, THE LD. DR HAS FILED A REPLY WHEREIN, IT WAS STATED THAT THE NOTICE SERVED WAS IN THE PRESENCE OF TWO WITNESSES. HOWEVER, THE COMPLETE ADDRESS OF THE WITNESSES ARE NOT AVAILABLE AND MOREOVER, WHATEVER PAPERS ENCLOSED WITH THE WRITTEN SUBMISSION BY THE LD. DR ARE NOT READABLE. SINCE THE ASSESSEE IS RESIDING WITHIN THE CITY LIMIT, IF THE NOTICE IS DESPATCHED BY SPEED POST WITH AD CARD, IT WOULD HAVE BEEN REACHED THE ASSESSEE WITHIN COUPLE OF DAYS AND THE DEPARTMENT WOULD HAVE RECEIVED THE AD CARD BACK. THEREFORE, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) ON THIS ISSUE A ND REMIT THE MATTER BACK TO THE ASSESSING OFFICER TO VERIFY WHETHER THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS VALIDLY SERVED ON THE ASSESSEE , INITIALLY THROUGH POSTAL DEPARTMENT AND BY TAKING INTO CONSIDERATION THE RE PLY GIVEN TO THE ASSESSEE BY THE DEPARTMENT UNDER RTI ACT ALLEGING THAT THERE WAS NO JURISDICTIONAL ASSESSING OFFICER POSTED DURING 30.07.2008 AND 09.02.2009 TO AUTHORISE SERVICE OF NOTICE AND DECIDE THE MATTER IN ACCORDANCE WITH LAW . SINCE THE ISSUANCE OF NOTICE UNDER SECTION I.T.A. NO . 2198 /M/ 13 4 143(2) OF THE ACT IS UNDER DISPUTE AND I F IT IS NOT PROVED THAT IT IS VALIDLY SERVED ON THE ASSESSEE, THE ASSESSMENT SUBSEQUENTLY FRAMED IS LIABLE TO BE QUASHED . THEREFORE, WE ARE NOT PROCEEDING TO DECIDE OTHER ISSUES RAISED IN THE GR OUNDS OF APPEAL OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 29 TH OCTOBER , 2015 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 29 . 1 0 .201 5 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.