Shivaji Palace Hotel & Club Pvt. Ltd., Uttar Pradesh V. ACIT, Uttar Pradesh

ITA 2542/DEL/2017

AI Insights

The case involves Shivaji Palace Hotel & Club Pvt. Ltd., which appealed against the order of the Commissioner of Income Tax (Appeals) - Muzaffarnagar, concerning the assessment year 2002-03. The primary contention was regarding the validity of the notice issued under section 143(2) of the Income Tax Act, 1961, which the assessee argued was issued beyond the statutory period of 12 months from the filing of the income tax return. The Tribunal noted the absence of a specific finding on this issue by the CIT(A) and decided to remit the matter back for a detailed examination.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 121148 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 05-04-2023
• Assessment Year: 2002-2003
• Appeal Filed On: 27-04-2017
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148; 144; 143(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘G’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND MS. ASTHA CHANDRA, JUDICIAL MEMBER ITA No.2542/Del/2017 (Assessment Year : 2002-03) Shivaji Palace Hotel & Club Pvt. Ltd. Dehradun Road, Saharanpur, UP PAN : AACCS 6882 R Vs. ACIT Circle Saharanpur UP (APPELLANT) (RESPONDENT) Assessee by Shri Anil Jain, C.A. Revenue by Shri Amit Shukla, Sr. D.R. Date of hearing: 06.04.2023 Date of Pronouncement: 27.04.2023 ORDER PER ANIL CHATURVEDI, AM : This appeal filed by the assessee is directed against the order dated 27.02.2017 of the Commissioner of Income Tax (Appeals)- Muzaffarnagar relating to Assessment Year 2002-03. 2. Brief facts of the case as culled out from the material on record are as under :- 3. Assessee is a company stated to be engaged in the business of Hotel. Assessee filed its return of income for A.Y. 2002-03 on 11.02.2003 declaring loss of Rs.4,97,282/-. The case was selected 2 for scrutiny and thereafter, assessment was framed u/s 144 vide order dated 31.12.2004 and the total income was determined at Rs.1,14,98,770/-. 4. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who vide order dated 27.02.2017 in Appeal No.149/2013-14/MZR granted partial relief to the assessee. Aggrieved by the order of CIT(A), assessee is now in appeal and has raised the following grounds: 1. “The Ld. CIT (A) has erred in dismissing the ground of time barred assessment as the notice u/s 143(2) is issued after 12 months of filing of the return. 2. The Ld. CIT (A) has erred in not adjudicating the ground no. 3 in respect of completion of the assessment without providing copies of the impounded material and books of accounts u/s 131(3). 3. The Ld. CIT(A) has erred in confirming addition of Rs. 1,76,107/- on account of sales tax paid as income from undisclosed sources. 4. The Ld. CIT(A) has erred in partly confirming the addition on account of estimation of sales to Rs. 1,62,14,350 as against estimated by the AO at Rs. 3,00,00,000 and Rs. 1,30,74,285 as per accounts. Further confirming the G.P. @ 69% on Rs. 31,40,065 amounting to Rs. 21,66,644 as against the addition of Rs. 89,18,388 made by the AO. 5. The order of the Ld. CIT is against law and facts of the case. 6. The appellant craves the right to add, amend or withdraw any grounds, (P) Ltd of appeal at the time of hearing.” 5. Before us, at the outset, Learned AR pointing to Ground No.1 submitted that the notice u/s 143(2) of the Act in the present case was issued after 12 months from the filing of return of the income 3 and therefore, it was time barred and accordingly the assessment was bad in law. He submitted that before CIT(A), assessee had raised the grounds about the non-issuance of notice u/s 143(2) as an additional ground but however there is no finding of CIT(A) on the issue. In support of his aforesaid contention, he pointed to the grounds that are reproduced by CIT(A) at page 13 of the order and thereafter, pointed to para 11 on page 36 of CIT(A)’s order wherein he has decided about the validity of the notice u/s 148 of the Act and there is no finding on this issue. Learned AR submitted that as per proviso to sub clause (ii) of Section 143(2) of the Act, notice can be issued within 12 months of the filing of return. He submitted that assessee had filed the return of income on 11.02.2003 and the notice u/s 143(2) was issued on 27.08.2004 which was after the expiry of 12 months of filing of return and therefore, the notice u/s 143(2) was null and void. Learned AR fairly submitted that since the issue has not been decided by CIT(A), the matter may be remitted back to CIT(A) for adjudication. 6. Learned DR did not controvert the factual submissions made by Learned AR but however strongly supported the order of CIT(A). 7. We have heard the rival submissions and perused the material available on record. In the ground No.1 assessee is challenging the validity of the assessment framed. It is the contention of the assessee that the notice u/s 143(2) was issued after the 12 months of filing of return and therefore the assessment framed is bad in law. We find that before CIT(A), assessee had raised ground about the non-issuance of notice u/s 4 143(2) within the 12 months but however there is no finding of CIT(A) on this issue. In such circumstances, we are of the view that issue needs to be re-adjudicated by CIT(A). We therefore restore the matter back to the file of CIT(A) and direct him to adjudicate the issue in accordance with law. CIT(A) shall be free to call for such information and explanations as he deems fit to adjudicate the claim of the assessee. Assessee shall also be free to file such documents, explanations, submissions as it deems fit in respect of the claim. Needless to state that CIT(A) shall grant adequate opportunity of hearing to both the parties. Thus the ground of assessee is allowed for statistical purposes. 8. Since we have restored the issue back to the file of CIT(A), we are not adjudicating the other grounds raised by the assessee. 9. In the result, appeal of assessee is allowed for statistical purposes. Order pronounced in the open court on 27.04.2023 Sd/- Sd/- (ASTHA CHANDRA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 27.04.2023 PY* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI