ITO, CORPORATE WARD - 6 (2), CHENNAI V. SHRI A.M. SATISH (alias) A.M. SATHISH BALASUBRAMANIAN, CHENNAI

ITA 2295/CHNY/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4711 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2021
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 13-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G CHANDRABABU
• Keywords: Set aside
• Section: 143(3); 148; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , , , BEFORE SHRI DUVVURU RL REDDY, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER /. I.T.A. NO. 2295/CHNY/2019 / ASSESSMENT YEAR : 2008-09 INCOME TAX OFFICER, CORPORATE WARD 6(2), CHENNAI. VS. SHRI. A.M. SATISH (ALIAS) SHRI. A.M. SATHISH BALASUBRAMANIAN, 3/381, BLOCK-1, 715, CEEBROS, BOULEVARD, METTUKUPPAM, THORAIPAKKAM, RAJIV GANDHI SALAI, OMR, CHENNAI 600 097. [PAN: AQIPS 5267M] ( / APPELLANT) ( / RESPONDENT) ' ( / APPELLANT BY : SHRI. G. CHANDRABABU, ADDL.CIT +,' ( / RESPONDENT BY : SHRI. ANAND D BABUNATH, CA ( /DATE OF HEARING : 09.12.2020 ( /DATE OF PRONOUNCEMENT : 01.02.2021 / O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER: THE REVENUE FILED THIS APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)- 15, CHENNAI, IN ITA NO. 25/2 017-18/CIT(A)-15 DATED 30.05.2019 FOR ASSESSMENT YEAR 2008-09. :-2-: ITA NO.2295/CHNY/2019 2. A.M. SATISH, THE ASSESSEE, AN INDIVIDUAL IS A DI RECTOR OF SEA NET LOGISTICS PVT. LTD. HIS REGULAR ASSESSMENT U/S. 143(3) WAS COMPLETED ON 29.12.2010. SUBSEQUENTLY, THE AO RE-OPENED THE ASSESSMENT BY IS SUING THE NOTICE U/S. 148 ON 31.03.2014 AND IN THE ABSENCE OF COMPLIANCE FROM THE ASSESSEE, COMPLETED THE RE-ASSESSMENT U/S. 144 R.W. 147. AGGRIEVED, TH E ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). THE LD. CIT(A) ALLOWED THE APPE AL. AGGRIEVED AGAINST THAT ORDER, THE REVENUE FILED THIS APPEAL WITH THE FOLLO WING GROUNDS: 1. THE ORDER OF THE LD. CIT(A) IS CONTRARY TO THE LAW AND FACTS OF THE CASE. 2. THE LD. CIT(A) ERRED IN HOLDING THAT THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT WAS NOT SERVED ON THE ASSESSEE SIMPLY ON TH E BASIS OF AN AFFIDAVIT FILED BY THE ASSESSEE AND WITHOUT GIVING ANY OPPORTUNITY TO THE AO TO EXAMINE THE AFFIDAVIT. 2.1 THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT T HE ASSESSEE SHOULD HAVE GIVEN NOTICE WITHIN FIFTEEN DAYS OF CLOSURE OF BUSINE SS TO THE CONCERNED AO, AS PER THE PROVISIONS OF SECTION 176(3) OF THE ACT. 3. THE LD. CIT(A) ERRED IN ADMITTING EVIDENCE WITHO UT GIVING OPPORTUNITY TO THE AO UNDER RULE 46A OF THE RULES. 3.1 THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT T HE ASSESSMENT WAS COMPLETED U/S. 144 R.W.S. 147 OF THE ACT AND THEREF ORE AN OPPORTUNITY SHOULD HAVE BEEN GIVEN TO EXAMINE THE EVIDENCE SUBMITTED FOR TH E FIRST TIME IN APPEAL. 4. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE SE T ASIDE AND THAT OF THE ASSESSING OFFICER IS RESTORED. 3. THE CASE WAS HEARD THROUGH VIDEO CONFERENCING. T HE LD. DR SUBMITTED THAT WHEN THE ASSESSMENT WAS MADE U/S. 144 R.W.S. 1 47, THE LD. CIT(A) OUGHT TO HAVE GIVEN THE COPIES OF PARTICULARS FILED BY THE A SSESSEE DURING THE APPEAL TO THE AO AND THE AO SHOULD HAVE BEEN GIVEN AN OPPORTU NITY TO EXAMINE SUCH MATERIALS AND THEREAFTER, THE LD. CIT(A) OUGHT TO H AVE DISPOSED THE APPEAL. SINCE, THE LD. CIT(A) DID NOT GIVEN AN OPPORTUNITY TO THE ASSESSING OFFICER, THE :-3-: ITA NO.2295/CHNY/2019 ORDER PASSED BY HIM IS NOT IN ACCORDANCE WITH LAW A ND THUS HE PRESENTED THE CASE ON THE LINES OF THE GROUNDS OF APPEAL EXTRACTE D, SUPRA, AND PLEADED TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE O RDER OF THE AO. PER CONTRA, THE LD. AR SUBMITTED THAT THE REGULAR ASSESSMENT WA S COMPLETED U/S. 143(3). THE AO ISSUED NOTICE U/S. 148 AFTER A PERIOD OF 4 Y EARS, THE LD. CIT(A) EXAMINED THE CASE AND FOUND THAT THE AO DID NOT HAVE PROOF O F SERVICE OF NOTICE. THEREFORE, THE LD. CIT(A) HELD THAT THE RE-ASSESSME NT MADE IS VOID AB INITIO. FURTHER, HE EXAMINED THE ISSUE ON THE BASIS OF MERI TS AND THEN ALLOWED THE APPEAL. THEREFORE, HE RELIED ON THE ORDER OF THE L D. CIT(A). THE LD. DR FURTHER SUBMITTED THAT THOUGH THE LD. CIT(A) REQUIRED THE A O TO GIVE HIS COMMENTS ON THE SERVICE OF NOTICE, ON WHICH THE OFFICER EXPRESS ED THAT IT IS NOT READILY AVAILABLE, THE LD. CIT(A) HAS NOT GIVEN DUE OPPORTU NITY TO THE AO BOTH ON JURISDICTIONAL ISSUE AS WELL AS ON THE MERIT ISSUE. THE ASSESSEE CLAIMED TO HAVE CLOSED THE BUSINESS BUT HE HAS NOT COMPLIED WITH TH E PROVISIONS OF SECTION 176 OF THE ACT. THEREFORE, HE REITERATED HIS SUBMISSIONS. 4. WE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE RELEVANT MATERIAL. THE AO RE-OPENED THE ASSESSMENT AND IN THE ABSENCE OF COMPLIANCE COMPLETED THE RE-ASSESSMENT U/S. 144 R.W. 147. AGGRIEVED, TH E ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), BEFORE WHOM THE ASSESSEE FILED T HE WRITTEN SUBMISSIONS WITH AN AFFIDAVIT. THE LD. CIT(A) REQUIRED THE ASSESSIN G OFFICER TO FURNISH PROOF OF SERVICE OF NOTICE U/S. 148. THE LD AO SUBMITTED TH AT THE NOTICE U/S. 148 HAS BEEN ISSUED BY THE THEN ASSESSING OFFICER ON 31.03. 2014. IT HAS BEEN :-4-: ITA NO.2295/CHNY/2019 DESPATCHED ON THE SAME DAY THROUGH DESPATCH SECTION . THOUGH, THE ACKNOWLEDGEMENT FOR SERVICING OF NOTICE IS NOT AVAI LABLE IN THE MR, THERE IS NO INDICATION IN THE MR FOR RETURN OF NOTICE. THE DE SPATCH REGISTER IS NOT READILY AVAILABLE IN THE DESPATCH SECTION, AS THE NOTICE UN DER QUESTION HAD BEEN DESPATCHED MORE THAN 5 YEARS AGO. THE LD. CIT(A) H ELD THAT THERE IS NO PROOF OF SERVICE OF NOTICE, THEREFORE THE RE-ASSESSMENT MADE IS VOID AB INITIO AND DISPOSED THE APPEAL ON MERIT ALSO. THE LD. DR SUBMITTED THA T THE AO HAS NOT BEEN GIVEN PROPER OPPORTUNITY AND PLEADS THAT WHEN THE RE-AS SESSMENT IS MADE U/S. 144 R.W. 147, THE COPIES OF AFFIDAVIT AND OTHER MATERIA L FILED BY THE ASSESSEE SHOULD HAVE BEEN GIVEN TO THE ASSESSING OFFICER FOR DUE EX AMINATION AND HIS COMMENTS OUGHT TO HAVE BEEN CONSIDERED BY THE LD. CIT(A). I N THIS CASE, ON THE ISSUE OF MERITS, THE AO WAS NOT AT ALL GIVEN ANY OPPORTUNITY . CONSIDERING, THE ENTIRE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ISSU ES ARE REQUIRED TO BE REMITTED BACK TO THE AO FOR A FRESH EXAMINATION. THE ASSESS EE IS AT FULL LIBERTY TO CANVAS HIS CASE BOTH ON THE ISSUES OF JURISDICTION AS WELL AS ON MERITS AND ALL THE ISSUES RAISED BY THE ASSESSEE ARE OPEN BEFORE THE AO FOR D UE EXAMINATION AND DECISION. THE AO SHALL EXAMINE ALL THE ISSUES CANVASSED BY T HE ASSESSEE AND AFTER AFFORDING DUE OPPORTUNITY TO THE ASSESSEE SHALL DEC IDE THEM BY A SPEAKING ORDER. :-5-: ITA NO.2295/CHNY/2019 5. IN THE RESULT, THE REVENUES APPEAL IS TREATED A S PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 1 ST FEBRUARY, 2021 AT CHENNAI. SD/ - ( . ' ) (DUVVURU RL REDDY) $% /JUDICIAL MEMBER SD/ - ( ) (S. JAYARAMAN) % /ACCOUNTANT MEMBER /CHENNAI, 1 /DATED: 1 ST FEBRUARY, 2021 JPV (+3454 /COPY TO: 1. ' / APPELLANT 2. +,' /RESPONDENT 3. 6 ) ( /CIT(A) 4. 6 /CIT 5. 4+ /DR 6. 9 /GF