Reeta Singhal, Ghaziabad V. PrCIT, Meerut

ITA 2313/DEL/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4349 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 04-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: FARHAT KHAN
• Assessee Lawyers: AMAN GUPTA
• Keywords: Period of limitation; Set aside
• Section: 143(2); 263; 63; 10

Judgement Text

1 | P A GE THE INCOME TAX APPELLATE TRIBUNAL DELHI F BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.2313/DEL/2018 ASSESSMENT YEAR : 2014-15 REETA SINGHAL, RAJ KUMAR & ASSOCIATES, CAS, L-7A(LGF), SOUTH EXTN., PART-2, NEW DELHI-110049. PAN-ABTPS0061P VS PR. CIT, MEERUT. APPELLANT RESPONDENT APPELLANT BY SH. RAJ KUMAR GUPTA, CA & SH. AMAN GUPTA, CA RESPONDENT BY SH.FARHAT KHAN, SR. DR DATE OF HEARING 13.05.2021 DATE OF PRONOUNCEMENT 2 8 .05.2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2014-15 IS DIRECTED AGAINST THE ORDER OF LEARNED PR.CIT( A), MEERUT DATED 21.03.2018. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE IMPUGNED ASSTT. ORDER DTD.30.12.16 IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE, THEREFO RE THE LD. CIT EXCEEDED HER JURISDICTION IN INVOKING THE PROVISIONS OF SEC. 263 OF THE ACT. 2. THAT DURING ASSTT., THE ISSUE OF LTCG ON SALE OF SHARES OF ESTEEM BIO ORGANIC FOOD PROCESSING LTD. WAS PROPERLY ENQUIRED, VERIFIED AND EXAMINED AND THEREAFTER A.O. TOOK A CONSIDERED AND POSSIBLE VIEW ON THE ISSUE, HENCE, THE IMPUGNED ASSTT. ORDER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE EVEN WITHIN THE MEANING OF EXPLANATION-2 TO SEC.263. 3. THAT UNDER THE FACTS, THE DIRECTIONS U/S.263 FO R FULLY SETTING ASIDE THE ASSTT. AND FOR MAKING FRESH ASSTT. ORDER DE-NOV O IS ILLEGAL AS THE SHOW 2 | P A GE CAUSE NOTICE WAS GIVEN ONLY ON THE ISSUE OF LTCG ON SALE OF SHARES R/W SEC. 10 (38) OF THE I.T. ACT AND ALSO SINCE MANY OT HER ISSUES OF THE IMPUGNED ASSTT. ORDER ARE COVERED BY CIT (A) ORDER DTD.31.10.17 AND FURTHER IN APPEAL PENDING BEFORE HONBLE ITAT, THUS TO THIS EXTENT CIT EXCEEDED THE SCOPE AND HER JURISDICTION IN GIVING T HE DIRECTIONS FOR SETTING ASIDE THE WHOLE ASSTT. AND FOR THE RE-FRAMING AS DE -NO VO. 4. THAT WITHOUT PREJUDICE, THE IMPUGNED ASSTT., SIN CE WITHOUT JURISDICTION, CONSEQUENTLY THE IMPUGNED ORDER U/S.2 63 IS ALSO WITHOUT JURISDICTION AND ILLEGAL. 5. THAT WITHOUT PREJUDICE, IN VIEW OF REPLY FURNISH ED IN RESPONSE TO NOTICE U/S 263, THE DIRECTIONS OF SETTING ASIDE THE ASSTT. EVEN ON LTCG ISSUE IS ILLEGAL. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE POIN TED OUT THAT THE IMPUGNED ORDER CANNOT BE SUSTAINED IN VIEW OF THE F ACT THAT THE ORIGINAL ASSESSMENT ORDER HAS BEEN QUASHED BY THE TRIBUNAL I N ITA NO.156/DEL/2018 RELATING TO ASSESSMENT YEAR 2014-15 VIDE ORDER DATE D 05.03.2021. 3. LD. SR. DR CONSIDERED THE FACT THAT THE ORIGINAL ASSESSMENT ORDER WHICH HAS BEEN REVISED BY THE IMPUGNED ORDER IN THE PRESE NT APPEAL AS ALREADY BEEN QUASHED BY THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE CONTENTION OF THE ASSESSEE. AS THE TRIBUNAL IN ITA NO.156/DEL/2018 HAS HELD AS UNDER:- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL ON RECORD. SINCE IT IS A LEGAL ISSUE AND ALL FACTS ARE ARISING FROM RECORD, THEREFORE, WE PROPOSE TO DECIDE THE ISSUE OF JURISD ICTION AND AS SUCH THERE IS NO NEED TO REMAND BACK THE MATTER TO THE FILE OF LD. CIT(A) AS IS ARGUED BY THE LD. D.R. IT IS NOT IN DISPUTE THAT ASSESSEE FILED RETURN OF INCOME WITH 3 | P A GE RANGE-2, MEERUT [PB-1] FOR ASSESSMENT YEAR IN APPEA L. LEARNED COUNSEL FOR THE ASSESSEE ALSO PLACED ON RECORD COPY OF THE ACKNOWLEDGMENT OF FILING OF THE RETURN OF INCOME FOR PRECEDING A.YS. 2011-2012, 2012-2013 AND 2013-2014 WITH RANGE-2, MEERUT IN THE NAME OF T HE ASSESSEE. IT WOULD, THEREFORE, SHOW THAT ASSESSEE FILED RETURN O F INCOME AT MEERUT. THE REVENUE DEPARTMENT HAS NOT PRODUCED ANY MATERIAL BE FORE US TO SHOW AS TO HOW THE JURISDICTION FROM MEERUT TO MALEGAON (NA SIK) HAVE BEEN TRANSFERRED IN THE CASE OF THE ASSESSEE. IT IS CONT ENDED THAT THE TIME LIMIT FOR ISSUING NOTICE UNDER SECTION 143(2) WAS UP TO 3 0.09.2015. IN THIS CASE THE ITO AT MALEGAON HAS ISSUED NOTICE UNDER SECTION 143(2) ON DATED 18.09.2015, BUT, HE WAS HAVING NO JURISDICTION WITH THE CASE OF THE ASSESSEE. THE ASSESSEE OBJECTED TO THE JURISDICTION AT MALEGAON BY FLING AN OBJECTION UNDER SECTION 124(3) OF THE I.T. ACT, 196 1, DATED 30.09.2016 DENYING ANY CONNECTION AT MALEGAON (NASIK). THESE F ACTS CLEARLY SHOW THAT ASSESSEE HAD BEEN FILING THE RETURN OF INCOME AT ME ERUT EVEN FOR EARLIER YEARS AND FILED RETURN OF INCOME FOR ASSESSMENT YEA R UNDER APPEAL AT MEERUT. NO MATERIAL OR ORDER UNDER SECTION 127 HAVE BEEN PRODUCED BEFORE US AS TO HOW THE CASE OF ASSESSEE WAS TRANSFERRED F ROM MEERUT TO MALEGAON (NASIK). THEREFORE, THE ITO AT MALEGAON (N ASIK) WAS HAVING NO JURISDICTION OVER THE CASE OF THE ASSESSEE. ADMITTE DLY, NO NOTICE UNDER SECTION 143(2) HAVE BEEN ISSUED BY ITO, MEERUT WHO WAS THE JURISDICTIONAL ITO IN THE CASE OF THE ASSESSEE. WHATEVER NOTICE UN DER SECTION 143(2) DATED 18.09.2015 WAS ISSUED BY ITO, MALEGAON (NASIK ) WAS NOT HAVING ANY JURISDICTION OVER THE CASE OF THE ASSESSEE. THE REFORE, IT WAS CLEARLY A NULLITY. THE ABOVE FACTS AND MATERIAL ON RECORD CLE ARLY PROVE THAT ITO AT MEERUT HAVING JURISDICTION OVER THE CASE OF THE ASS ESSEE DID NOT ISSUE NOTICE UNDER SECTION 143(2) UPON THE ASSESSEE WITHI N THE PERIOD OF LIMITATION PROVIDED UNDER THE ACT. THEREFORE, THE N OTICE ISSUED UNDER SECTION 143(2) BY ITO, MALEGAON HAVE NO JURISDICTIO N OVER THE CASE OF THE ASSESSEE WAS NOT VALID AND WOULD NOT CONFER ANY JUR ISDICTION OVER THE CASE OF THE ASSESSEE. THE ENTIRE ASSESSMENT PROCEEDINGS ARE, THEREFORE, VITIATED BECAUSE OF NON-SERVICE OF JURISDICTION NOTICE UNDER SECTION 143(2) WITHIN THE PERIOD OF LIMITATION BY ITO AT MEERUT HAVING JURISD ICTION OVER THE CASE OF THE 4 | P A GE ASSESSEE. THE ASSESSMENT ORDER IS, THEREFORE, NULL AND VOID. SINCE THE ENTIRE ASSESSMENT ORDER IS NULL AND VOID AND AS SUC H THE SAME IS LIABLE TO BE QUASHED. THE LD. D.R. FILED COPY OF JURISDICTION HISTORY IN THE CASE OF THE ASSESSEE, BUT, IT DID NOT PROVIDE HOW THE CASE OF A SSESSEE WAS TRANSFERRED FROM MEERUT TO MALEGAON FOR THE ASSESSMENT YEAR UND ER APPEAL. IT WOULD, THEREFORE, WOULD NOT SUPPORT THE CASE OF THE REVENU E. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE LIGHT OF ABOVE DECISIONS RELIED UPON BY LEARNED COUNSEL FOR THE AS SESSEE, WE HOLD THAT THE ENTIRE ASSESSMENT ORDER IS NULL AND VOID IN THE ABSENCE OF ISSUE AND SERVICE OF JURISDICTIONAL NOTICE UNDER SECTION 143( 2) BY THE ITO AT MEERUT HAVING JURISDICTION OVER THE CASE OF THE ASSESSEE. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND Q UASH THE ASSESSMENT ORDER. ACCORDINGLY, APPEAL OF THE ASSESSEE ALLOWED. 5. THEREFORE, CONSIDERING THE FACT THAT THE ORIGINA L ASSESSMENT ORDER WHICH WAS REVISED BY WAY OF THE IMPUGNED ORDER, HAS BEEN QUASHED. THE IMPUGNED ORDER DOES NOT STAND ON ITS LEGS HENCE, DESERVES TO BE QUASHED. WE HOLD ACCORDINGLY. THE APPEAL OF THE ASSESSEE IS HEREBY, ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIR TUAL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 28 TH MAY, 2021. SD/- SD/- (G.S. PANNU) (KUL BHARAT) VICE PRESIDENT JUDICIAL M EMBER * AMIT KUMAR * 5 | P A GE COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI