The ACIT, 5 (1), V. The Krishi Upaj Mandi Samiti,

ITA 317/IND/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1479 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-11-2009
• Assessment Year: misc
• Appeal Filed On: 08-07-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KARAN
• Section: 143(2)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI V.K. GUPTA, AM ITA NO.317/IND/2008 AY: 2005-06 ACIT-5(1), INDORE .....APPELLANT V/S. M/S. KRISHI UPAJ MANDI SAMITI, MAHESHWAR ROAD, BARWAHA (PAN AAGFK 9083 R) .....RESPONDENT DEPARTMENT BY : SHRI V.K. KARAN, SR. DR ASSESSEE BY : NONE ORDER PER JOGINDER SINGH, JM THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-II, INDORE, DATED 18.3.2008 ON THE GROUND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) ERRED IN HOLDING THAT THE ASSESSMENT IS NOT VALID WITHOUT APPRECIATI NG THE REMAND REPORT/SUBMISSIONS/JUDICIAL PRONOUNCEMENTS FURNISHE D BY THE ASSESSING OFFICER. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I V.K. KARAN, LD. SR. DR AND NONE WAS PRESENT FOR THE ASSESSEE. REGISTERED N OTICE OF HEARING WAS SENT TO THE ASSESSEE WHICH WAS DULY RECEIVED AS IS EVIDE NT FROM POSTAL ACKNOWLEDGEMENT AVAILABLE ON RECORD. THE ASSESSEE N EITHER PRESENTED ITSELF NOR MOVED ANY ADJOURNMENT PETITION, CONSEQUENTLY, W E HAVE NO OPTION BUT TO 2 PROCEED EXPARTE QUA-ASSESSEE AND TEND TO DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. THIS APPEAL IS TIME-BARRED BY TWO DAYS FOR WHICH CONDONATION PETITION HAS BEEN FILED. KEEPING IN VIEW THE REASONS STATED THEREIN AND THE ARGUMENTS ADVANCED BY THE LD. SR. DR, THE DELAY IS CONDONED. THE LD. COUNSEL FOR THE REVENUE DEFENDED THE ASSESSMENT ORDER. 4. WE HAVE CONSIDERED THE SUBMISSIONS PUTFORTH BY T HE LD. SR. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE TH E LD. FIRST APPELLATE AUTHORITY, THE ASSESSEE HAS CHALLENGED THE ASSUMPTI ON OF JURISDICTION OF THE LD. ASSESSING OFFICER. TO CUT SHOT THE MATTER, IT IS SE EN THAT BEFORE COMING TO ANY CONCLUSION, THE LD. FIRST APPELLATE AUTHORITY SOUGH T REMAND REPORT/COMMENTS VIDE LETTER DATED 25.2.2008 AS HAS BEEN REPRODUCED AT PAGE 1 OF THE IMPUGNED ORDER. PURSUANCE TO THE ABOVE, THE LD. ASS ESSING OFFICER SUBMITTED HIS COMMENTS AS IS EVIDENT FROM PAGE 2 OF THE IMPUG NED ORDER, WHICH ARE NOT BEING REPEATED BEING MATTER OF RECORD. IN VIEW OF T HESE UNCONTROVERTED FACTS, FIRSTLY THERE IS NO FORCE IN THE STAND OF THE REVEN UE THAT THE SUBMISSIONS OF THE ASSESSING OFFICER WERE NOT APPRECIATED. EVEN ON MER IT, AS PER THE PROVISO TO SEC. 143(2)(II), THE NOTICE U/S 143(2) OF THE ACT I S SUPPOSED TO BE SERVED BEFORE THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FURNISHED. IN THE PRESENT APPEAL, THE RETURN WA S FILED ON 19.1.2006 AND THE NOTICE U/S 143(2) WAS TO BE SERVED UPON THE ASS ESSEE UP TO 31.1.2007. THERE IS A MENTION IN THE ORDER THAT THE NOTICE WAS RECEIVED BY ASSESSEE ON 3 1.2.2007 AND TO SUBSTANTIATE THIS ASSERTION, THE AS SESSEE FILED PHOTOCOPY OF THE RECEIPT REGISTER MENTIONED AS SL. NO.1343 ON 1. 2.2007. THIS FACTUAL FINDING HAS NOT BEEN CONTROVERTED BY THE REVENUE. THE LD. D R/AO PLACED RELIANCE UPON THE DECISION IN 259 ITR 270 (MP). IT IS FURTHE R SEEN THAT THE LD. FIRST APPELLATE AUTHORITY HAS ALREADY CONSIDERED THE CIRC ULAR NO.549 DATED 31.10.1989 AND 621 DATED 19.12.1999. IDENTICAL ISSU E HAS BEEN DELIBERATED UPON IN DCIT VS. BHAN TEXTILES LTD., 287 ITR 370 (D EL) WHEREIN DISTINCTION BETWEEN ISSUANCE OF NOTICE AND SERVICE OF NOTICE HA S BEEN DELIBERATED UPON. THE RELEVANT PORTION IS REPRODUCED HEREWITH: HELD, DISMISSING THE APPEAL, THAT THE ASSESSEE HAD FILED THE RETURN ON NOVEMBER 20, 1996, AND THE TIME STIPULATED UNDER THE PROVISO TO SECTION 143(2)(II) OF THE I.T. ACT, 1961, FOR SERVICE OF NO TICE EXPIRED ON NOVEMBER 30, 1997. NOTICE UNDER SECTION 143(2) THOUGH ISSUED ON NOVEMBER 27, 1997 AND DISPATCHED ON NOVEMBER 28, 1997, WAS ACTUALLY RECEIVED BY THE ASSESSEE ONLY ON DECEMBER 1, 1997. ACCORDING TO THIS PROVISION, THE NOTICE MUST BE SERVED ON THE ASSESSEE. THEREFORE, THE ASSESSMENT WAS NOT VALID. 5. WHILE COMING TO THE AFORESAID DECISION, THE HON BLE DELHI HIGH COURT CONSIDERED THE DECISION IN CIT VS. LUNAR DIAMOND LT D. (281 ITR 1) (DEL), TEA CONSULTANCY & PLANTATION SERVICES (INDIA) P. LTD. V S. UNION OF INDIA (278 ITR 356)(DEL) AND FOLLOWED THE DECISION IN CIT VS. WARD HMAN ESTATE P. LTD. (287 ITR 68) (DEL). THE HONBLE DELHI HIGH COURT IN LUNA R DIAMOND LTD. WHILE COMING TO A PARTICULAR CONCLUSION CONSIDERED THE DE CISION IN BANARASI DEVI VS. ITO (53 ITR 100) (SC), CIT VS. GYAN PRAKASH GUPTA ( 165 ITR 501) (RAJ.), CIT 4 VS. JAIPRAKASH SINGH (219 ITR 737) (SC), PRIMA REAL ITY VS. UNION OF INDIA (223 ITR 655) (SC) AND ORDER IN CO NO.139/IND/2007 ARISI NG OUT OF ITA NO.186/IND/2007 IN THE CASE OF SERVITE SISTERS SOCI ETY VS. ACIT ORDER DATED 22.5.2009. IN VIEW OF THESE FACTS AND JUDICIAL PRON OUNCEMENT, WE ARE OF THE CONSIDERED OPINION THAT THE NOTICE U/S 143(2) OF TH E ACT WAS TO BE SERVED UPON THE ASSESSEE WITHIN A PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN WAS FILED, CONSEQUENTLY, THERE IS NO I NFIRMITY IN THE IMPUGNED ORDER. IN THE RESULT, APPEAL OF THE REVENUE IS HAVING NO MERIT, THEREFORE, DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR ON 11.11.2009. SD/- SD/- (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11.11.2009 {VYAS} COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR