Communidade of Chicalim., Goa V. The Income Tax Officer, Ward-1, Margao

ITA 240/PAN/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7614 (ITAT-PANAJI)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1997-1998
• Appeal Filed On: 25-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVIRAJ Y V
• Assessee Lawyers: ELSON M SEQUEIRA
• Section: 143(3); 142(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 240 /P A N/201 6 (ASST. YEAR : 1997 98 ) COMMUNIDADE OF CHICALIM, ST FRANCIS XAVIER CHURCH BUILDING, CHICALIM, SOUTH GOA, GOA - 403711 V. THE INCOME TAX OFFICER WARD 1 MAGAO GAO PAN NO. AAABC 0196 P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ELSON M. SEQUEIRA CA DEPARTMENT BY : SHRI R A VIRAJ Y.V . - DR DATE OF HEARING : 1 4 /02/2017 . DATE OF PRONOUNCEMENT : 1 4 /02/2017 . O R D E R PER GEORGE MATHAN , JUDICIAL MEMBER 1 . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) PANAJI IN APPEAL NOS. ITA.NO.134/CIT( A) - 2/PNJ/2015 16 & ITA.NO.155/MRG/08 - 09 DATED 01.08.2016 FOR THE ASSESSMENT YEAR 1997 98. SHRI ELSON M SEQUEIRA, CA REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI RAVIRAJ Y.V, REPRESENTED ON BEHALF OF THE REVENUE. 2 . IT WAS SUBMITTED BY THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT ASSESSEE HAS FILE D ITS RETURN OF INCOME IN THE STATUS OF THE LOCAL AUTHORITY DECLARING THE NILL INCOME. THE ASSESSMENT WAS COMPLETED UNDER SECTION 1 43 (3) READ WITH SECTION 147 WHEREIN TOTAL INCOME OF THE ASS ESSEE WAS ASSESSED AT . 22,06,820/ - AND STATUS WAS TAKEN AS BOI . IT WAS SUBMITTED THAT O N APPEAL ORIGINALLY IT WAS CHALLENGED THAT NOTICE UNDER SECTION 143(2) HAS NOT BEEN ISSUED. THE APPEAL CAME TO BE DISPOSED OF F IN ITA. NO.61 TO 63 FOR ASSESSMENT YEAR 2 ITA NO. 240 /P A N/201 6 COMMUNIDADE OF CHICALIM 1997 98 TO 1999 2000 DATED 0 8.01.2001 WHEREIN THE ISSUE WAS RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR RE - ADJUDICATION AND TO EXAMINE WHETHER THE NOTICE UNDER SECTION 143(2) HAD BEEN ISSUED OR NOT. IT WAS SUBMITTED THAT THE LEARNED CIT(A) HAD VIDE HIS ORDER DATED 01.08.2016 , BEING IMPUGNED ORDER , HELD THAT NO NOTICE UNDER SECTION 143(2) WAS REQUIRED TO BE ISSUED TO THE ASSESSEE . IT WAS THE SUB MISSION THAT THE HONBLE SUPREME COURT IN THE CASE OF THE HOTEL BLUE MOON (2010) 321 ITR 362(SC) HAS CATEGORICALLY HELD THAT WHEN COMPLETING THE ASSESSMENT UNDER SECTION 143(3) NOTICE UNDER SECTION 143(2) IS TO BE ISSUED. HE FURTHER PLACED RELIANCE ON THE DECISION OF THE HONBLE JURISDIC TIONAL HIGH COURT OF BOMBAY, PANAJI BENCH IN THE CASE OF GENO PHARMACEUTICALS LTD. IN TAX APPEAL NO S 75 TO 78 OF 2012 DATED 14.02.2013 WHEREIN IT HAS BEEN HELD THAT THE ISSUANCE OF NOTICE UNDER SECTION 143(2) AFTER REOPENING OF THE CASE UNDER SECTION 147 IS MANDATORY TO COMPLETE T H E ASSESSMENT U NDER SECTION 143(3). IT WAS PRAYED THAT THE ASSESSMENT BE ANNULLED. 3 . IN REPLY LEARNED DR PLACED BEFORE US THE DECISION OF THE HONBLE DELHI COURT IN THE CASE OF MADHYA BHARAT ENERGY CORPN. L IMITED REPORTED IN 337 ITR 389. HE SUBMITTED THAT IN CASE OF REO PENING UNDER SECTION 147 OF THE ACT THE NOTICE UNDER SECTION 143(2) WAS NOT MANDATORY. IT WAS SUBMITTED THAT THE ORDER OF THE CIT(A) IS LIABLE TO BE UPHELD. 4 . I HAVE CONSIDERED THE RIVAL SUBMISSION. PERUSAL OF THE DECISION OF THE HONBLE DELHI COURT IN THE CASE OF MADHYA BHARAT ENERGY CORPN. LIMITED CLEARLY SHOWS IN PARA 13 IT IS HELD THAT THOUGH NO SPECIFIC NOTICE WAS REQUIRED UNDER SECTION 143(2), THE QUEST IONNAIRES DATED 11 TH NOV., 2003 AND 21 ST JAN., 2004 PROVIDED THE ASSESSEE SPECIFIC OPPORTUNITY TO SUPPORT HIS RETURN BY SEEKING DOCUMENTARY EVIDENCE AND DETAILS . PERUSAL OF THE PROVISIONS OF SECTION 143(2) OF THE ACT SHOWS THAT THE SAID PROVISION PROVIDE FOR THE ASSESSING OFFICER TO CALL FOR THE 3 ITA NO. 240 /P A N/201 6 COMMUNIDADE OF CHICALIM DETAILS IN RESPECT OF THE RETURN. THOUGH ADMITTEDLY NO NOTICE SPECIFYING SECTION 143(2) NEEDS TO BE ISSUED OR IS ISSUED STILL THE TERMS OF THE PROVISIONS OF SECTION 143( 2 ) ARE TO COMPLIED WITH . AN ASSESSMENT UNDE R SECTION 143(3) CANNOT BE DONE WITHOUT ISSUANCE OF THE NOTICE UNDER SECTION 143(3) OR CALLING FOR DETAILS. IF IT IS SO TO BE THE NOTICE WILL HAVE TO BE ISSUED UNDER SECTION 142(1) OR A SHOW CAUSE NOTICE AND COULD RESULT IN AN ASSESSMENT UNDER SECTION 14 4. HOWEVER IN THE PRESENT CASE IT IS NOTICED THAT THE ASSESSMENT IS UNDER SECTION 143(3) READ WITH SECTION 147 AND IT IS ADMITTED BY THE LEARNED STANDING COUNSEL THAT NO NOTICE WAS ISSUED UNDER SECTION 143(2) NOR HAS ANY DETAIL QUESTIONNAIRE BEING PUT TO THE ASSESSEE. IT IS CLEAR THAT OPPORTUNITY HAS NOT BEEN GRANTED TO THE ASSESSEE TO SUPPORT HIS RETURN. CONSEQUENTLY I AM OF THE VIEW THAT THE PRINCIPLE LAID DOWN BY THE HONBLE SUP REME COURT IN THE CASE OF HOTEL BLUE MOON REFERRED (SUPRA) AND ALSO THE DECISION OF THE HONBLE JURISDICTION OF THE MUMBAI HIGH COURT AT PANAJI IN THE CASE OF GENO PHARMACEUTICALS LIMITED APPLIES TO THE FACTS OF THE ASSESSEES CASE. IN THE CIRCUMSTANCES A S IT IS NOTICED THAT NO NOTICE UNDER SECTION 143(2) HAS BEEN ISSUED TO THE ASSESSEE AND AS IT IS NOTICED THAT NO QUESTIONNAIRE HAS ALSO BEEN ISSUED TO THE ASSESSEE IN TERMS OF THE PROVISIONS OF SECTION 143(2) , THE ASSESSMENT AS MADE IN THE CASE OF THE ASSE SSEE IS INVALID AND LIABLE TO BE ANNULLED AND I DO SO. 5 . IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON TUESDAY , THE 1 4 TH DAY OF FEBRUARY, 2017 AT GOA . SD/ - (GEORGE MATHAN) JUDICIAL MEMBER DATED : 1 4 TH FEBRUARY, 2017. VSSGB / 4 ITA NO. 240 /P A N/201 6 COMMUNIDADE OF CHICALIM COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A), 5 . THE D.R. 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI