GEETA JANARDHAN VAITY, THANE V. ITO HQ( CIB) PUNE, PUNE

ITA 278/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3848 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 17-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 11-01-2012
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN V P
• Keywords: Cost of acquisition; Assessment record
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER I.T.A. NO.278/M/2012 (ASSESSMENT YEAR: 2005 - 2006 ) GEETA JANARDHAN VAITY, 502, MAHADEO TOWER, LBS MARG, VAITY WADI, NAUPADA, THANE. / VS. ITO, HQ (CIB), 60/61, PRAPTIKAR SADAN, KARVE ROAD, PUNE - 411004. ./ PAN : AGKPV9924A ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI JAYANT BHATT / RESPONDENT BY : SHRI ASGHAR ZAIN, VP , DR / DATE OF HEARING : 17.02.2016 / DATE OF PRONOUNCEMENT : 17.02.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 11.1.2012 IS AGAINST THE ORDER OF THE CIT (A) - II, MUMBAI DATED 26.9.2011 FOR THE ASSESSMENT YEAR 2005 - 06. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUND AS WELL AS ADDITIONAL GROUNDS AND THE SAME READ AS UNDER: THE LD CIT (A) HAD ERRED IN CONFIRMING THE ORDER OF THE AO IN SO FAR AS A. CONFIRMING THE COST OF ACQUISITION AS ON 1.4.1981 AT RS. 222 PER SQ. METER. B. IN CALCULATING THE CAPITAL GAIN AT RS. 12,64,119/ - . ADDITIONAL GROUND: UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO HAS ERRED IN NOT ISSUING THE NOTICE U/S 143(2) OF THE ACT AND COMPLETING THE ASSESSMENT PROCEEDING AND THUS THE ORDER PASSED U/S 144 OF THE ACT, BEING BAD IN LAW SHOULD BE ANNULLED. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE WIT HOUT GOING INTO THE MERITS OF THE ISSUE AND SUBMITTED THAT THIS IS A CASE WHERE THE ASSESSMENT WAS COMPLETED WITHOUT ISSUE OF NOTICE U/S 143(2) OF THE ACT. BRINGING OUR ATTENTION TO THE ASSESSMENT ORDER, LD COUNSEL FOR THE ASSESSEE DEMONSTRATED THAT THE A SSESSMENT MADE U/S 144 OF THE ACT DETERMINING THE ASSESSED INCOME AT RS. 4,10,02 7/ - . IN THIS REGARD, LD COUNSEL 2 FOR THE ASSESSEE DEMONSTRATED THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 30.10.2006 VIDE RECEIPT NO.014006277 DECLARING THE NIL TOTAL INCO ME. HE ALSO SUBMITTED THAT HE INSPECTED THE ASSESSMENT RECORD OF THE AO AND MENTIONED THAT THE EXPARTE ASSESSMENT WAS DONE WITHOUT ISSUE OF STATUTORY NOTICE U/S 143(2) OF THE ACT. THE SAME IS AGAINST THE SETTLED LEGAL PROPOSITION ENSHRINED BY THE SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON [2012] 321 ITR 362 (SC). 3. AFTER HEARING BOTH THE PARTIES AND PERUSAL OF THE ASSESSMENT RECORD, WE FIND T HE AO ISSUED ONLY NOTICE U/S 143 (1) OF THE ACT AND NOT THE NOTICE U/S 143 (2) OF THE ACT, WHICH IS MAND ATORY FOR ISSUING BEFORE THE ASSESSMENT IS MADE EITHER U/S 144 OR U/S 143(3) OF THE ACT. IN THIS REGARD, THE JUDGMENT OF THE APEX COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) IS RELEVANT FOR THE PROPOSITION THAT ISSUANCE OF NOTICE U/S 143(2) OF THE ACT W ITHIN THE PRESCRIBED TIME IS MANDATORY......... WE, ACCORDINGLY, APPLY THE SAID RATIO OF THE HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) AND QUASH THE ASSESSMENT MADE BY THE AO IN THIS CASE. ACCORDINGLY, ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED. 4. CONSIDERING THE RELIEF GRANTED TO THE ASSESSEE ON THE LEGAL ISSUE RAISED IN ADDITIONAL GROUNDS, WE FIND THE ADJUDICATION OF THE REGULAR GROUNDS RAISED BY THE ASSESSEE BECOMES AN ACADEMIC EXERCISE. THEREFORE, THEY ARE DISMISSED AS ACADEMIC. 5. BEFORE PARTING, WE FIND IT RELEVANT TO MENTION HERE THAT REVENUE MAY APPROACH THE TRIBUNAL FOR RECTIFICATION THROUGH MISCELLANEOUS APPLICATION, IF ANY, AS AND WHEN THEY HAVE EVIDENCE TO DEMONSTRATE THAT THE EX - PARTE ASSESSMENT WAS MADE AFTER ISSUING OF NOTICE U/S 143(21) OF THE ACT. WITH THESE REMARKS, WE ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, APPEAL F ILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH FEBRUARY, 2016. S D / - S D / - ( PAWAN SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 17.2.2016 . . ./ OKK , SR. PS 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI