Income Tax Officer -2(1) , Lucknow V. M/s. Jai Maa & Co., Lucknow

ITA 248/LKW/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9131 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 09-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R RASTOGI
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.248/LKW/2013 ASSESSMENT YEAR:2007-08 INCOME TAX OFFICER 2(1) LUCKNOW V. M/S JAI MAA & CO VISHNU SADAN, 5, PARK ROAD HAZRATGANJ, LUCKNOW TAN/PAN:AABFJ9756B (APPELLANT) (RESPONDENT) C.O. NO.14/LKW/2013 [ IN ITA NO.248/LKW/2013] ASSESSMENT YEAR:2007-08 M/S JAI MAA & CO VISHNU SADAN, 5, PARK ROAD HAZRATGANJ, LUCKNOW V. INCOME TAX OFFICER 2(1) LUCKNOW TAN/PAN:AABFJ9756B (CROSS-OBJECTOR) (RESPONDENT) DEPARTMENT BY: SHRI. AMIT NIGAM, D.R. ASSESSEE BY: SHRI. K. R. RASTOGI, C.A. DATE OF HEARING: 07 01 2015 DATE OF PRONOUNCEMENT: 06 02 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) ON A SOLITARY GROUND, WHICH IS AS UNDER:- 1.) THE LD CIT (A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.2,68,27,158/- MADE U/S 40(IA)(3) ON ACCOUNT OF PAYMENT OF HIRE CHARGES OF VEHICLE WITHOUT APPRECIATING THE FACTS GIVEN IN THE REMAND REPORT OF THE AO THAT THE ASSESSEE DID :- 2 -: NOT COOPERATE IN THE VERIFICATION AND NOT FURNISHED THE SO CALLED DECLARATIONS IN FORM NO. 15-I AND 15-J TO THE PRESCRIBED AUTHORITY AND ALSO DID NOT COMPLY WITH THE STATUTORY REQUIREMENTS. 2. THE ASSESSEE HAS FILED CROSS OBJECTION RAISING A PLEA THAT NOTICE UNDER SECTION 143(2) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WAS NOT SERVED WITHIN THE STATUTORY PERIOD PRESCRIIBED. IT WAS ALSO CONTENDED THAT THOUGH THIS PRELIMINARY OBJECTION WAS RAISED BEFORE THE DCIT, RANGE I, LUCKNOW, BUT HE DID NOT ADJUDICATE THE SAME. 3. SINCE THE APPEAL AND CROSS OBJECTION WERE HEARD TOGETHER, THE SAME ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 4. SINCE THE ASSESSEE HAS RAISED A PRELIMINARY ISSUE WITH REGARD TO THE MAINTAINABILITY/VALIDITY OF THE ASSESSMENT ORDER, WE PREFER TO ADJUDICATE IT AT THE THRESHOLD. 5. THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT THE IMPUGNED ASSESSMENT YEAR IS 2007-08 AND NOTICE UNDER SECTION 143(2) OF THE ACT IS REQUIRED TO BE SERVED LATEST BY 30.9.2008, BUT IN THE INSTANT CASE, NO NOTICE WAS SERVED UPON THE ASSESSEE UPTO 30.9.2008. THEREFORE, THE ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE ACT IS NOT VALID AND DESERVES TO BE QUASHED. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UPON THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MOHAMMAD KHALEEQ COMMERCIAL TAXES, IN I.T.A. NO. 21 OF 2011, IN WHICH ASSESSMENT YEAR INVOLVED IS 2007-08 AND THE HON'BLE COURT HAS CATEGORICALLY HELD THAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS TO BE SERVED BY 30.9.2008. COPY OF THE ORDER OF THE HON'BLE HIGH COURT IS PLACED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER INVITED OUR ATTENTION TO THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER BEFORE THE LD. CIT(A), IN WHICH THE :- 3 -: ASSESSING OFFICER HIMSELF HAS ADMITTED THAT NOTICE UNDER SECTION 143(2) OF THE ACT DATED 30.9.2008 WAS SENT BY SPEED POST. ONCE THE ASSESSING OFFICER HIMSELF HAS ADMITTED THAT NOTICE WAS SENT ON 30.9.2008, BY ANY STRETCH OF IMAGINATION IT CANNOT BE PRESUMED OR ASSUMED THAT THE SERVICE OF THE SAID NOTICE COULD HAVE BEEN EFFECTED ON THE SAME DAY. THE ASSESSEE HAD ALSO RAISED A DISPUTE WITH REGARD TO THE SERVICE OF NOTICE UNDER SECTION 143(2) BEFORE THE ASSESSING OFFICER, BUT HE DID NOT ADJUDICATE THE SAME. 6. THE LD. D.R., ON THE OTHER HAND, HAS SIMPLY PLACED RELIANCE UPON THE ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE. 7. A SPECIFIC QUERY WAS RAISED FROM THE LD. D.R. WITH RESPECT TO THE REMAND REPORT, IN WHICH IT HAS BEEN CATEGORICALLY ADMITTED BY THE ASSESSING OFFICER THAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS SENT BY SPEED POST ON 30.9.2008 AND IN THAT EVENTUALITY, BY ANY STRETCH OF IMAGINATION THE NOTICE SENT BY SPEED POST ON 30.9.2008 CANNOT BE SERVED ON THE SAME DAY BY THE POSTAL AUTHORITIES. THE LD. D.R. COULD NOT ANSWER THIS QUERY AND SIMPLY PLACED RELIANCE UPON THE ORDERS OF THE LOWER AUTHORITIES. 8. HAVING CAREFULLY EXAMINED THE EVIDENCE AVAILABLE ON RECORD IN THE LIGHT OF THE LD. COUNSEL FOR THE ASSESSEES CONTENTIONS, WE FIND THAT UNDISPUTEDLY NOTICE UNDER SECTION 143(2) OF THE ACT WAS REQUIRED TO BE SERVED UPTO 30.9.2008 AND IF IT IS NOT SERVED, THE ASSESSING OFFICER COULD NOT ASSUME JURISDICTION TO FRAME THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT. IF HE DOES SO, THE ASSESSMENT WOULD BE ILLEGAL AND DESERVES TO BE DECLARED NULL AND VOID. IN THE INSTANT CASE, WHEN THE NOTICE WAS ISSUED ON 30.9.2008, IT COULD NOT HAVE BEEN SERVED ON THE SAME DAY. THEREFORE, NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT SERVED UPON THE ASSESSEE WITHIN THE PERIOD SPECIFIED IN THE ACT AND IN THE ABSENCE OF SERVICE OF VALID NOTICE, THE ASSESSING OFFICER COULD NOT ASSUME JURISDICTION TO FRAME THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT. THEREFORE, THE ASSESSMENT :- 4 -: FRAMED CONSEQUENT THERETO IS INVALID AND DESERVES TO BE QUASHED. WE ACCORDINGLY QUASH THE ASSESSMENT ORDER. 9. ONCE THE ASSESSMENT ORDER IS QUASHED, WE FIND NO MERIT IN THE REVENUES APPEAL AND WE DECLINE TO ENTERTAIN THE GROUNDS RAISED ON MERIT. ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED AND THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. 10. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED AND CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6 TH FEBRUARY, 2015 JJ:1901 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR