IDEA INTERNAITONAL P. LTD, MUMBAI V. ASST CIT RG 6(1), MUMBAI

ITA 2597/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79216 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 26-06-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 05-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIJAY KOTHARI
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 2597/MUM/2011 ASSESSMENT YEAR: 2006-07 M/S. IDEA INTERNATIONAL PVT. LTD. 36/40, MAHALAXMI BRIDGE ARCADE, MAHALAXMI, MUMBAI- 400 034 PAN: AABCI 1527 J VS. ACIT CIRCLE 6(1) MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIJAY KOTHARI REVENUE BY : SHRI RAVINDER SINDHU DATE OF HEARING : 26.06.2014 DATE OF PRONOUNCEMENT : 26.06.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD.CIT(A)-14, MUMBAI DATED 04.01.2011 FOR THE ASSES SMENT YEAR 2006-07. 2. IN THIS APPEAL, THE ASSESSEE, AMONG OTHER THINGS , HAS AGITATED THE DECISION OF THE LD.CIT(A) CONFIRMING THE ASSESSMENT MADE BY THE AO U/S 143(3) WITHOUT SERVING NOTICE TO THE ASSESSEE U/S 143(2)(II). 3. BRIEFLY STATED, THE ASSESSEE, A COMPANY ENGAGED IN THE BUSINESS OF TRADING OF SOYA SEEDS, SOYA OIL ETC., HAD FILED ITS RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.85,10,489/-. IN THE ASSESSMENT FRAMED U/S 143(3) , THE AO MADE CERTAIN DISALLOWANCES DETERMINING THE TOTAL INCOME AT RS.1, 10,95,246/-. IN THIS CONNECTION, IT WAS THE SUBMISSION OF THE ASSESSEE THAT THE NOTI CE U/S 143(2) HAS NOT BEEN SERVED ON TIME AND HENCE THE ASSESSMENT ORDER PASSED U/S 1 43(3) IS VOID AB INITIO, ILLEGAL AND THEREFORE, DESERVES TO BE QUASHED. ON APPEAL, T HE LD.CIT(A) HAD OBSERVED THAT THE DEPARTMENT DID NOT SUBMIT THE PROOF OF SERVICE OF NOTICE U/S 143(2) AND FURTHER ITA NO. 2597/MUM/2011 M/S. IDEA INTERNATIONAL PVT. LTD. ASSESSMENT YEAR: 2006-07 2 NOTED THAT NO NOTICE U/S 143(2) HAD BEEN SERVED TO THE ASSESSEE ON TIME. HOWEVER, ACCORDING TO THE LD.CIT(A), NO OBJECTION WAS RAISED BY THE ASSESSEE EXPRESSLY DURING THE ASSESSMENT PROCEEDING AS REQUIRED U/S 292BB OF THE ACT AND HENCE THE LD.CIT(A) HELD THAT THE ASSESSMENT ORDER PASSED U/S 143(3) WAS VALID AND SUBSISTING. AGGRIEVED BY THE IMPUGNED DECISION, THE ASSESSEE, AMONG OTHER THINGS, HAS RAISED THIS ISSUE IN THE APPEAL BEFORE US. 4. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS AN ADMITTED FACT THAT IN THE PRESENT CASE, NOTICE U/S 143(2) HAS NOT BEEN SERVED TO THE ASSESSEE IN TIME. THE ASSESSMENT YEAR INVOLVED IN T HE CASE IN HAND IS 2006-07 WHICH IS PRIOR TO THE INSERTION OF SECTION 292BB. IN THIS CONNECTION, IT IS PERTINENT TO MENTION THAT IN THE CASE OF CIT VS. MR. SALMAN KHAN , THE HONBLE HIGH COURT OF BOMBAY HAS HELD THAT THE OPERATION OF SECTION 292BB , WHICH WAS AMENDED W.E.F. 1 ST APRIL, 2008 AND CAME INTO OPERATION PROSPECTIVELY F OR THE ASSESSMENT YEAR 1999- 2000. PRIOR TO THE INSERTION SECTION 292BB, IT IS A SETTLED LAW THAT IN THE ABSENCE OF NOTICE U/S 143(2), THE ASSESSMENT ORDER CANNOT BE S USTAINED AS A VALID ONE. IN VIEW OF THAT MATTER, WE OVERTURN THE ORDER OF THE LD.CIT (A) AND RESULTANTLY THE ASSESSMENT ORDER IS QUASHED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF JUNE, 2014. SD/- SD/- (N.K. BILLAIYA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 26.06.2014 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR I BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.