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ITA 2307/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7778 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 08-08-2016
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: G BASKAR
• Keywords: Reopening of assessment
• Section: 147; 131; 148

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. 23 07 /MDS/2016 / ASSESSMENT YEAR :20 07 - 08 M/S. KALAIVANI PRESS PVT. LTD., C/O SHRI PARAMESHWARAN, MANAGING DIRECTOR, 2/674 - G, VIVEKANANDA, 4 TH STREET, S.R. NAGAR, TIRUPUR 641 687. [PAN: A AAC K8 970E ] VS . THE INCOME TAX OFFICER, CORPORATE WARD 2, COIMBATORE . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI G. BASKAR , A DVOCATE / RESPONDENT BY : SHRI SHIVA SRINIVAS , JCIT / DATE OF HEARING : 08 . 11 .201 6 / DATE OF P RONOUNCEMENT : 28 . 1 2 .2016 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMI SSIONER OF INCOM E TAX (APPEALS) 1 , COIMBATORE DATED 27 . 0 5 .201 6 FOR THE ASSESSMENT YEAR 20 07 - 08 . IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED AS MANY AS SEVEN GROUNDS, BUT THE EFFECTIVE GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS ERRED IN NO T CONSIDERING THE GROUND RAISED BEFORE HIM RELATING TO NON - SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT WITHIN THE PERIOD PERMITTED BY THE LAW. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007 - 08 DECLARING TOTAL INCOME AT I.T.A. NO. 2307 /M/16 2 .36,41,438/ - . THE RETURN FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] . SUBSEQUENTLY, SINCE THE ASSESSING OFFICER HAS REASONS TO BELIEVE THAT THE INCOME HAS ESCAPED ASSE SSMENT, THE ASSESSMENT WAS REOPENED UNDER SECTION 147 OF THE ACT BY ISSUING NOTICE UNDER SECTION 148 AFTER OBTAINING APPROVAL FROM THE JCIT, RANGE III, COIMBATORE ON 28.03.2014. THERE WAS NO RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT. THEREAFTER, SUMMONS UNDER SECTION 131 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 19.12.2014 CALLING OR DETAILS OF COMPUTATION OF CAPITAL GAINS IN RESPECT OF PROPERTY SOLD WITH COPIES OF DOCUMENTS. IN RESPONSE TO THE ABOVE, THE MD OF THE ASSESSEE COMPANY APPEARED AND MAD E SUBMISSIONS. AFTER CONSIDERING THE SUBMISSIONS, THE ASSESSMENT WAS COMPLETED UNDER SECTION 147 OF THE ACT ON 11.03.2015 BY ASSESSING TOTAL INCOME OF THE ASSESSEE AT .59,73,348/ - . 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). AFT ER REPRODUCING THE GROUNDS RAISED BY THE ASSESSEE, THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE WITHOUT ADJUDICATING THE SPECIFIC GROUND RAISED UNDER GROUND NO.3. 4. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AND THE L D. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS FAILED TO ADJUDICATE THE LEGAL ISSUE RAISED BEFORE HIM AND PRAYED THAT SUITABLE ORDER MAY BE PASSED. I.T.A. NO. 2307 /M/16 3 5. ON THE OTHER HAND, THE LD. DR FAIRLY CONCEDED THAT THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. FROM THE ASSESSMENT ORDER, IT IS EVIDENT THAT THE ASSESSING OFFICER HAS OBTAINED APPROVAL OF THE JCIT FOR REOPENING OF ASSE SSMENT UNDER SECTION 147 OF THE ACT ONLY ON 28.03.2014. FIRST OF ALL, THE ASSESSING OFFICER HAS NOT MENTIONED THE DATE OF FILING OF RETURN OF INCOME BY THE ASSESSEE. THOUGH THE ASSESSING OFFICER HAS MENTIONED THAT NOTICE UNDER SECTION 148 OF THE ACT WAS IS SUED, IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS NOT MENTIONED THE DATE OF NOTICE OR DATE OF SERVICE. BEFORE THE LD. CIT(A), THE ASSESSEE HAS MENTIONED THAT THE REOPENING OF ASSESSMENT RELATING TO THE ASSESSMENT YEAR 2007 - 08 SHOULD HAVE BEEN DONE O N OR BEFORE 31.03.2014. BUT, THE ASSESSING OFFICER HAS OBTAINED APPROVAL FOR REOPENING OF ASSESSMENT FROM THE JCIT ONLY ON 28.03.2014 I.E. FRIDAY. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS STATED THAT NOTICE UNDER SECTION 148 WAS ISSUED SAFELY W ITHOUT MENTIONING THE DATE. WHEN THE REOPENING OF ASSESSMENT IS LIKELY GETTING BARRED BY 31.03.2014, WHEN THE ASSESSING OFFICER HAS ISSUED THE 148 NOTICE TO THE ASSESSEE IS A MILLION DOLLAR QUESTION BECAUSE 29 TH & 30 TH MARCH, 2014 ARE BEING CLOSED HOLIDAYS . IN THE FIRST APPELLATE ORDER, THE LD. CIT(A) HAS NOT ADJUDICATED THE SPECIFIC GROUND RAISED BY THE ASSESSEE WITH REGARD TO SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT. UNDER THESE FACTS AND CIRCUMSTANCES, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND D IRECT HIM TO EXAMINE THE ISSUE AS TO WHETHER THE ASSESSEE WAS ACTUALLY ISSUED/SERVED I.T.A. NO. 2307 /M/16 4 NOTICE UNDER ACTION 148 OF THE ACT SINCE THE APPROVAL FOR REOPENING OF ASSESSMENT WAS OBTAINED ON 28.03.2014 BEING FRIDAY . HE IS FURTHER DIRECTED TO CALL FOR THE DETAILS/E XPLANATION AS TO WHETHER 148 NOTICE AND 143(2)/142(1) NOTICES HAVE BEEN ISSUED PRIOR TO SERVICE OF SUMMON UNDER SECTION 131 OF THE ACT ON 19.12.2014 SINCE THERE WAS NO MENTION IN THE ASSESSMENT ORDER HAVING ISSUED/SERVED ALL THE ABOVE NOTICES TO THE ASSESSEE BEFORE CONCLUDING THE REASSESSMENT UNDER SECTION 147 OF THE ACT. IF THE ASSESSING OFFICER HAS FAILED TO ISSUE/SERVE THE ABOVE NOTICE(S) TO THE ASSESSEE, THEN THE ASSESSMENT ORDER PASSED UNDER SECTION 147 OF THE ACT SHO ULD BE HELD AS INVALID AND QUASHED , ACCORDINGLY. SINCE, THE ISSUE OF SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT IS REQUIRED TO BE ADJUDICATED BY THE LD. CIT(A), THE OTHER GROUNDS RAISED IN THE APPEAL IS NOT REQUIRED TO BE ADJUDICATED AT THIS JUNCTURE. THUS, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON THE 28 TH DECEMBER , 20 16 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACC OUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 28 . 1 2 .201 6 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.