VIJAY V. TAKALE, MUMBAI V. ITO 21(3)(2), MUMBAI

ITA 3165/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93323 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 05-05-2014
• Court: TRIBUNAL
• Department Lawyers: NEELIMA V NADKARNI
• Keywords: Reopening of assessment; Revised return
• Section: 143(3); 142(1); 234B; 147; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO. 3165/M/2014 (AY:2008 - 2009 ) SHRI VIJAY V. TAKALE, 202 - B, UNO - SHELER CHS LTD., MATCH FACTORY LANE, KURLA (W), MUMBAI 400 070. / VS. ITO 21(3)(2), MUMBAI. ./ PAN : AACTP5976E ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SMT. VIMAL PUNMIYA / RESPONDENT BY : MS. NEELIMA V. NADKARNI, DR / DATE OF HEARING : 09.07.2015 / DATE OF PRONOUNCEMENT : 29 .07.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 5.5.2014 IS AGAINST THE ORDER OF THE CIT (A) - 32, MUMBAI DATED 19.3.2014 FOR THE ASSESSMENT YEAR 2008 - 2009. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE LD CIT (A) HAS ERRED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN NOT VERIFYING WHETHER THE AO HAS RECORDED REASONS FOR ISSUE OF NOTICE U/S 148. 2. THE LD CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT CALLING UPON THE AO TO VERIFY WHETHER NOTICE U/S 143(2) AS REQUIRED BY LAW HAS BEEN ISSUED BY AO BEFORE ASSESSMENT ORDER U/S 143(3) READ WITH SECTION 147 OF THE ACT. 3. THE LD CIT (A) HAS ERRED IN LAW AND FACT AND CIRCUMSTANCES OF THE CASE IN UPHOLDING THE ADDITION OF RS. 6,55,000/ - MADE BY AO U/S 69 OF THE ACT. 4. THE LD CIT (A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ACTION OF THE AO I N NOT ACCEPTING THE EVIDENCE PRODUCED BY THE APPELLANT OF A REGISTERED SALE DEED. 5. THE LD CIT (A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ACTION OF THE AO WHO MERELY RELIED UPON SOME WRITING MADE ON A PIECE OF PAPER BY ONE JAYANT V. VASA OF SANGLI. 6. THE LD CIT (A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF TH E CASE IN CONFIRMING THE ACTION OF THE AO IN NOT ALLOWING THE APPELLANT TO CROSS EXAMINE THE OWNERS OF LAND AND THEIR POWER OF ATTORNEY HOLDER AND INST EAD BLAMING THE APPELLANT IN NOT OBTAINING CONTRARY STATEMENTS REGARDING CASH PAYMENTS OF RS. 6,30,000/ - . 7. THE LD CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE INTEREST LEVIED U/S 234A, 234B AND 234C OF THE ACT. 8. THE LD CIT (A) HAS ERRED IN L AW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN RELYING UPON THE STATEMENT MADE BY JAYANT V. VASA REGARDING CASH RECEIVED 2 BY HIM OF RS. 6,30,000/ - FROM THE APPELLANT OVER AND ABOVE THE SALE PRICE OF RS. 3,70,000/ - . 9. THE LD CIT (A) ERRED IN FACTS AND IN LAW ON FACTS IN REJECTING THE DECIDED CASE LAW ON THE SUBJECT AND REJECTED THE SAME AS DISTINGUISHABLE ON FACTS. 2. AT THE OUTSET, REFERRING TO GROUND NOS. 1 & 2, WHICH RELATE TO THE MAKING OF ASSESSMENT U/S 143(3) R.W.S 148 WITHOUT ISSUING STATUTORY NOT ICE U/S 143(2) OF THE ACT, LD COUNSEL FOR THE ASSESSEE INFORMED THAT THIS IS THE CASE WHERE RE - ASSESSMENT WAS MADE WITHOUT ISSUING NOTICE U/S 143(2) OF THE ACT. DURING THE PROCEEDINGS BEFORE US, LD COUNSEL FOR THE ASSESSEE INFORMED THAT AN ATTEMPT WAS MADE TO INSPECT THE FILES OF THE ASSESSING OFFICER , IN SUPPORT OF THE SAME, ASSESSEE FILED A LETTER DATED 2.7.2015, COPY OF WHICH IS PLACED AT PAGE 45 OF THE PAPER BOOK. REFERRING TO THE AOS REPLY LETTER DATED 2.7.2015 LD COUNSEL FOR THE ASSESSEE DEMONST RATED THAT THE ASSESSING OFFICER IS SILENT IN HIS REPLY. RELEVANT CONTENTS OF AOS LETTER READ AS UNDER: PLEASE REFER TO YOUR LETTER DATED 2.7.2015, WHEREIN YOU WANT TO TAKE INSPECTION TO KNOW WHETHER 143(2) NOTICE WAS ISSUED TO YOUR AND WHETHER REASONS WERE RECORDED FOR REOPENING OF ASSESSMENT U/S 147 BEFORE ISSUING NOTICE UNDER SECTION 148. IN THIS CONNECTION IT IS TO INTIMATE TO YOU THAT BEFORE ISSUING NOTICE UNDER SECTION 148, THE REASON FOR REOPENING U/S 147 WAS RECORDED BY THE AO ON 12.3.2012, WHI CH IS WITHIN FOUR YEARS AND IN THIS CASE, NO APPROVAL OF THE HIGHER AUTHORITY IS REQUIRED. THE NOTICE U/S 148 WAS ISSUED ON 12.3.2012, WHICH WAS DULY SERVED ON YOU ON 12.3.2012. YOU HAVE NOT RESPONDED TO THE NOTICE U/S 148 EITHER BY FILING REVISED RETURN . HENCE, THE REASONS WERE NOT COMMUNICATED TO YOU IN WRITING. A;SP DURING THE ASSESSMENT PROCEEDINGS YOU HAVE NEVER REQUESTED EITHER BY A LETTER OR BY ORDER SHEET NOTICE THE REASONS RECORDED FOR REOPENING. HENCE, NOTICE U/S 142(1) DATED 1.8.2012 WAS ISS UED TO YOUR ASKING YOU TO FILE THE DETAILS. 3. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSING OFFICER HAS NOT COMMUNICATED THE FACT OF ISSUE OF NOTICE U/S 143(2) OF THE ACT, WHICH IS MANDATED BY THE APEX COURT JUDGMENT IN THE CASE OF ACIT VS. HOTEL BLUE MOON [(2010) 321 ITR 362 (SC)], WHICH IS RELEVANT FOR THE PROPOSITION THAT THE RE - ASSESSMENT PROCEEDINGS CONCLUDED U/S 147 ARE INVALID IF NOTICE U/S 143(2) IS NOT ISSUED. 4. AFTER HEARING BOTH THE PARTIES, I FIND THE RE - ASSESSMENT HAS TO BE HELD INVALID AND VOID CONSIDERING THE AOS FAILURE TO ISSUE THE SAID STATUTORY NOTICE U/S 143(2) OF THE ACT. IN CASE, ASSESSING OFFICER DEMONSTRATES THAT THE SAID NOTICE WAS ACTUALLY ISSUED AND HE COMPLIED WITH THE REQUIREMENTS, THE AO IS FREE TO SEEK REVOKE O F THIS ORDER AS PER LAW. ACCORDINGLY, THE LEGAL ISSUE RAISED BY THE ASSESSEE IS ALLOWED. 3 5. CONSIDERING MY DECISION ON THE LEGAL ISSUE IN FAVOUR OF THE ASSESSEE, I FIND THE ADJ UDICATION OF THE REST OF THE G ROUNDS 3 TO 8 (GROUND NO.9 AND 10 ARE GENERAL) BECOMES ACADEMIC. ACCORDINGLY, THE SAID GROUND NOS. 3 TO 8 ARE DISMISSED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOU NCED IN THE OPEN COURT ON 29TH JULY, 2015. SD/ - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 29 .7 .2015 . . ./ OKK , SR. PS / 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