PUSHPA RAJAWAT, Jaipur V. ITO, Jaipur

ITA 250/JPR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1846 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 01-06-2017
• Assessment Year: 1997-1998
• Appeal Filed On: 17-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Assessee Lawyers: C M SHARMA
• Section: 147; 148; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 250/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 1997-98 PUSHPA RAJAWAT, W/O- SHRI BHAWANI SINGH RAJAWAT, PRESENT R/O- 111, SUMER NAGAR EXTENSION-A, OPP. DHANVANTRI HOSPITAL, NEW SANGANER ROAD, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-6(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABDPR 1401 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI C.M. SHARMA (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11/12/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 12/12/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES FR OM THE ORDER OF THE LD. CIT(A)-5, JAIPUR DATED 18/01/2016 FOR THE A.Y. 1997-98. 2. AT THE OUTSET OF HEARING, THE LD. AR OF THE ASSE SSEE HAS SUBMITTED THAT THIS APPEAL IS AGAINST SUSTAINING TH E PENALTY OF RS. 5,03,327/- LEVIED U/S 271(1)(C) OF THE INCOME TAX AC T, 1961 (IN SHORT ITA 250/JP/2016_ PUSHPA RAJAWAT VS ITO 2 THE ACT). HE FURTHER PLEADED THAT THE HONBLE RAJAS THAN HIGH COURT HAS ALLOWED THE APPEAL OF THE ASSESSEE IN QUANTUM, THERE FORE, IN CONSEQUENCE OF THE ORDER, NO PENALTY COULD BE SUSTA INED. 3. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE O RDERS OF THE AUTHORITIES BELOW. 4. I HAVE HEARD BOTH THE SIDES. THE MATTER IN QUANTU M WENT UP TO THE HON'BLE HIGH COURT AND THE HON'BLE HIGH COURT H AS ANSWERED THE QUESTION IN FAVOUR OF THE ASSESSEE. THE RELEVANT PO RTION OF THE ORDER OF THE HON'BLE HIGH COURT IS REPRODUCED HEREUNDER: 8. WE HAVE HEARD COUNSEL FOR THE PARTIES. 9. TAKING INTO CONSIDERATION THE PROVISIONS OF SECT ION 148 OF THE INCOME TAX ACT WHICH READS AS UNDER:- 148. ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT . (1) BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147 , THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME OR THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE U NDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RELEV ANT ASSESSMENT YEAR, IN THE PRESCRIBED FORM AND VERIFIED IN THE PR ESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED; AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURN ISHED UNDER SECTION 139 : PROVIDED THAT IN A CASE (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE PE RIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMBER, 2005 IN RESPONSE TO A NOTICE SERVED UNDE R THIS SECTION, AND ITA 250/JP/2016_ PUSHPA RAJAWAT VS ITO 3 (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER SU B-SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECI FIED IN THE PROVISO TO SUB-SECTION (2) OF SECTION 143, AS IT STOOD IMME DIATELY BEFORE THE AMENDMENT OF SAID SUB-SECTION BY THE FINANCE ACT, 2 002 (20 OF 2002) BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR M AKING THE ASSESSMENT, RE-ASSESSMENT OR RECOMPUTATION AS SPECI FIED IN SUB- SECTION (2) OF SECTION 153, EVERY SUCH NOTICE REFER RED TO IN THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE : PROVIDED FURTHER THAT IN A CASE (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE P ERIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMBER, 2005, IN RESPONSE TO A NOTICE SERVED UND ER THIS SECTION, AND (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER CL AUSE (II) OF SUB- SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECIFIED IN THE PROVISO TO CLAUSE (II) OF SUB-SECTION (2) OF SECTION 143 , BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS SPECIFIED IN SUB-S ECTION (2) OF SECTION 153 , EVERY SUCH NOTICE REFERRED TO IN THIS CLAUSE SHAL L BE DEEMED TO BE A VALID NOTICE. 10. SINCE, THE ORIGINAL PROCEEDINGS WERE PENDING BE FORE THE CIT(A), WITHOUT ENTERING INTO THE QUESTION OF JURISDICTION OF THE S AWAIMADHOPUR A.O., THE FACT REMAINS THAT THE ADJUDICATING AUTHORITY COULD NOT HAVE ISSUED SECOND SHOW CAUSE NOTICE U/S 148. IN THAT VIEW OF THE MATT ER, WITHOUT ENTERING INTO THE MATTER WHETHER THE GWALIOR OR THE SAWAIMAD HOPUR, A.O. HAS JURISDICTION OR NOT, THE SECOND SHOW CAUSE IS HELD TO BE NOT LEGAL. 11. IN THAT VIEW OF THE MATTER, FIRST ISSUE IS REQU IRED TO BE ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMENT. THE SECOND ISSUE BEING CONSEQUENTIAL TO FIRST ISSUE, THE SAME IS ALSO TO B E ANSWERED IN FAVOUR OF THE ASSESSEE. 12. HENCE, BOTH THE ISSUES ARE ANSWERED IN FAVOUR O F ASSESSEE AND AGAINST THE DEPARTMENT. CONSIDERING THIS FACT, NO PENALTY CAN BE SUSTAINED. HENCE APPEAL OF THE ASSESSEE STANDS ALLOWED. ITA 250/JP/2016_ PUSHPA RAJAWAT VS ITO 4 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/12/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12 TH DECEMBER, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. PUSHPA RAJAWAT, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE WARD-6(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 250/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR