Shashi Kumar Nirala, Deoghar V. ITO, Ward-1, Arra

ITA 29/PAT/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1227 (ITAT-PATNA)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY KUMAR CITSRDR
• Section: 143(2); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA SMC BENCH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER . / ITA NO.29/PAT/2018 ASSESSMENT YEAR:2011-12 SHASHI KUMAR NIRALA OPP. SBI TRAINING CENTRE, SHIVPURI PATH, SALONA TAND, DEOGHAR-814112 [ PAN NO.ABEPN 7135 Q ] / V/S . INCOME TAX OFFICER WARD-1, ARA /APPELLANT .. /RESPONDENT HEARING THROUGH VIDEO CONFERENCING /BY APPELLANT SHRI ALOK KUMAR, AR /BY RESPONDENT SHRI AJAY KUMAR, ADDL. CIT-SR-DR /DATE OF HEARING 20-01-2021 /DATE OF PRONOUNCEMENT 20-01-2021 /O R D E R THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-1, PATNA DATED 24.11.2017 [HEREINAFTER REFERRED TO AS CIT(A)]. THE ASSESSEE IN THIS APPE AL HAS CONTESTED THE VALIDITY OF THE RE-ASSESSMENT FRAMED U/S 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE PRESENT APPEAL IS BARRED BY LIMITATION WITH SEVEN DAYS DELAY. A SEPARATE CONDONATION PETITION HAS BEEN FILED BY THE ASSESSEE . IN VIEW OF THE REASONS EXPLAINED AND CONSIDERING THE SHORTNESS OF THE DELAY, I CONDO NE THE DELAY IN FILING THE PRESENT APPEAL. CASE IS NOW TAKEN UP FOR ADJUDICATION ON ME RITS. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NO NOTICE U/S 143(2) OF THE ACT HAS BEEN ISSUED TO THE ASSESSEE B EFORE FRAMING THE ASSESSMENT U/S 147 OF THE ACT. THE LD. DR HAS ALSO NOT DENIED THIS FACT ON RECORD. IT HAS BEEN HELD TIME AND AGAIN BY THE VARIOUS COURTS OF THIS COUNTR Y THAT THE ISSUE OF NOTICE U/S. 143(2) ITA NO.29/PAT/2018 A.Y.2011 -12 SHASHI KR. NIRALA VS. ITO WD-1 ARA PAGE 2 IS THE SINE QUA NON TO ASSUME JURISDICTION BY THE ASSESSING OFFICER TO FRAME ASSESSMENT. SINCE NO NOTICE U/S 143(2) OF THE ACT H AS BEEN ISSUED TO THE ASSESSEE BEFORE FRAMING THE ASSESSMENT, THEREFORE THE ASSESS MENT FRAMED U/S 147 OF THE ACT IN THIS CASE WAS BAD IN LAW. THE ISSUE IS SQUARELY COV ERED BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOM E TAX VS. HOTEL BLUEMOON (2010) 321 ITR 362 (SC) AND OF THE HON'BLE DELHI HI GH COURT IN THE CASE OF PR. CIT VS. SHRI JAI SHIV SHANKAR TRADERS PVT. LTD. (2015) 383 ITR 448 (DEL). 4. ANOTHER JURISDICTIONAL ISSUE RAISED BY THE LD. C OUNSEL FOR THE ASSESSEE IS THAT THE NOTICE U/S 148 OF THE ACT WAS ISSUED BY THE DCIT DE OGHAR WHEREAS THE ASSESSMENT U/S 147 OF THE ACT HAS BEEN FRAMED BY THE ITO WARD-1 AR A. THE ITO WARD-1 ARA DID NOT ISSUE ANY NOTICE U/S 148 OF THE ACT NOR HE RECORDED ANY REASON TO THE EFFECT THAT THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. UNDE R THE CIRCUMSTANCES THE FRAMING OF ASSESSMENT U/S 147 OF THE ACT BY THE ITO WARD-1 ARA IS ALSO HIT BY JURISDICTIONAL ERROR. IN VIEW OF THIS, THE ASSESSMENT FRAMED IN TH IS CASE U/S 147 BEING BAD IN LAW IS QUASHED AND IN CONSEQUENCE THE ADDITIONS MADE IN TH E ASSESSMENT STAND DELETED. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN OPEN COURT AT THE CLOSE OF THE HEARING ON WEDNESDAY, 20 TH JANUARY, 2021 . SD/- (SANJAY GARG) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS ' - 20/01/2021 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SHASHI KR. NIRALA, OPP. SBI TRAINING CENTR E, SHIVPURI PATH, SALONA TAND DEOGHAR-814112 2. /RESPONDENT-ITO WARD-1, ARA 3. % ' / CONCERNED CIT 4. ' - / CIT (A) 5. ) ,,% , % / DR, ITAT, KOLKATA 6. . / GUARD FILE. BY ORDER/ , /TRUE COPY/ %,