DCIT, Circle, Faizabad V. M/s Jamuna Construction Company, Lucknow

ITA 267/LKW/2013

• Counselvise Citation: 26723714 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-03-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 16-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNIT KUMAR
• Assessee Lawyers: M P MISHRA; SHAILENDRA MISHRA
• Keywords: Reopening of assessment
• Section: 143(3); 147; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.267/LKW/2013 ASSESSMENT YEAR:2003-04 DY. CIT CIRCLE, FAIZABAD V. M/S JAMUNA CONSTRUCTION CO. C/O SUDHIR JAIN, 1/72, VIRAM KHAND GOMTI NAGAR, LUCKNOW TAN/PAN:AAEFJ5023E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. PUNIT KUMAR, D.R. RESPONDENT BY: SHRI. M. P. MISHRA & SHRI. SHAILENDRA MISHRA, ADVOCATES DATE OF HEARING: 09 03 2015 DATE OF PRONOUNCEMENT: 13 03 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 THAT THE LD. CIT(A) HAS ERRED ON FACTS IN ALLOWING THE RELIEF TO THE ASSESSEE ON THE GROUND THAT NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WAS NOT SERVED UPON THE ASSESSEE BEFORE FRAMING THE ORDER IGNORING THE FACT THAT NOTICE UNDER SECTION 148 OF THE ACT HAS BEEN SENT TO LAST KNOWN ADDRESS OF THE ASSESSEE-FIRM AND THE ASSESSEE HAS NOT COMMUNICATED ITS ANY OTHER ADDRESS TO THE DEPARTMENT. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDERS OF THE LOWER AUTHORITIES, WITH THE SUBMISSION THAT NOTICE UNDER SECTION 148 OF THE ACT WAS NEVER SERVED UPON THE ASSESSEE AND THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT :- 2 -: UNDER SECTION 147 OF THE ACT. THIS ASPECT WAS EXAMINED BY THE LD. CIT(A) AND HAVING CONVINCED WITH THE LEGAL POSITION THAT WITHOUT SERVING NOTICE UNDER SECTION 148 OF THE ACT THE ASSESSMENT UNDER SECTION 147 OF THE ACT CANNOT BE FRAMED, HE ANNULLED THE ASSESSMENT. 3. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. D.R. HAS CANDIDLY ADMITTED THAT NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 26.3.2010 TO THE FAIZABAD ADDRESS OF THE ASSESSEE BY SPEED POST, BUT THE SAME WAS RETURNED BACK UNSERVED ON ACCOUNT OF ADDRESS BEING INCOMPLETE. THEREAFTER NO EFFORT WAS MADE BY THE ASSESSING OFFICER TO SERVE THE NOTICE UNDER SECTION 148 OF THE ACT UPON THE ASSESSEE AND THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. THE LD. CIT(A) HAS RECORDED ALL THESE FACTS IN HIS ORDER IN PARAS 4 & 5 OF HIS ORDER AND FINALLY ANNULLED THE ASSESSMENT. 4. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT THE DEPARTMENT HAS MADE EFFORTS TO SERVE THE NOTICE UNDER SECTION 148 OF THE ACT, BUT WHEN IT FAILED TO GET THE NOTICE SERVED, THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT, THEREFORE, THE ASSESSMENT UNDER SECTION 147 OF THE ACT IS VALID. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS CONTENDED THAT THE REQUIREMENT OF LAW IS THAT FOR REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE ACT, NOTICE UNDER SECTION 148 OF THE ACT IS REQUIRED TO BE SERVED UPON THE ASSESSEE. MERE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT IS NOT SUFFICIENT TO MEET THE REQUIREMENT OF PROVISIONS OF SECTION 148 OF THE ACT, THEREFORE, THE ASSESSMENT COMPLETED UNDER SECTION 147 OF THE ACT DESERVES TO BE ANNULLED. 6. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY NOTICE UNDER SECTION 148 OF THE ACT WAS NOT SERVED UPON THE ASSESSEE, AS THE ASSESSING OFFICER HAS RECORDED IN HIS ORDER THAT NOTICE UNDER SECTION 148 OF THE ACT :- 3 -: WAS SENT BY SPEED POST, BUT THE SAME WAS RETURNED BACK UNSERVED ON ACCOUNT OF ADDRESS BEING INCOMPLETE. THE REQUIREMENT OF LAW UNDER SECTION 147 OF THE ACT IS THAT NOTICE UNDER SECTION 148 OF THE ACT BE SERVED UPON THE ASSESSEE WITHIN A SPECIFIED PERIOD TO ASSUME JURISDICTION FOR COMPLETING THE ASSESSMENT UNDER SECTION 147 OF THE ACT. WITHOUT SERVING NOTICE UNDER SECTION 148 OF THE ACT, THE ASSESSING OFFICER CANNOT ASSUME JURISDICTION TO COMPLETE THE ASSESSMENT UNDER SECTION 147 READ WITH 143(3) OF THE ACT. UNDISPUTEDLY, THE REVENUE HAS ALL THE INFRASTRUCTURES TO FIND OUT THE CORRECT ADDRESS AND GET THE NOTICE SERVED UPON THE ASSESSEE. IF THE CONCERNED ASSESSING OFFICER IS FAILED TO DISCHARGE THE LEGAL DUTIES BY SERVING NOTICE UNDER SECTION 148 OF THE ACT UPON THE ASSESSEE, THE ASSESSMENT COMPLETED UNDER SECTION 147 READ WITH SECTION 143(3) OF THE ACT CANNOT BE CALLED TO BE A VALID ASSESSMENT. IT IS FOR THE DEPARTMENT TO TAKE NECESSARY ACTION AGAINST THE CONCERNED ASSESSING OFFICER FOR NOT DISCHARGING THE DUTIES ACCORDING TO THE LAW. BUT IN ANY CASE, THE ASSESSMENT FRAMED UNDER SECTION 147 OF THE ACT, WITHOUT SERVING NOTICE UNDER SECTION 148 OF THE ACT, CANNOT BE HELD TO BE A VALID ASSESSMENT AND WE THEREFORE FIND OURSELVES IN AGREEMENT WITH THE ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY HELD THE ASSESSMENT TO BE INVALID. ACCORDINGLY, WE CONFIRM THE ORDER OF THE LD. CIT(A). 7. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISMISSED. 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: 13 TH MARCH, 2015 JJ:0903 :- 4 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR