The ACIT, Circle-9, Surat V. M/s. Unique Enterprise, Surat

ITA 3242/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9899 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-09-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 22-09-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M J SHAH
• Keywords: Assessment record
• Section: 292BB; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI D. C. AGRAWAL, ACCOUNTANT MEMBER ITA NO.3242/AHD/2008 ASSESSMENT YEAR :2005-06 DATE OF HEARING:22.9.10 DRAFTED:22.9.10 ASSTT. COMMISSIONER OF INCOME-TAX, CIRCLE-9, ROOM NO.423, 4 TH FLOOR, AAYAKAR BHAVAN, MAJURA GATE, SURAT V/S . M/S. UNIQUE ENTERPRISE, 62, KALIDAS NAGAR, L.H. ROAD, SURAT PAN NO.AABFU4948A (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI ANIL KUMAR, CIT-DR RESPONDENT BY:- SHRI M.J. SHAH, AR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-V, SURAT IN APPEAL NO.CAS-V /238/2007-08 DATED 23- 06-2008. THE ASSESSMENT WAS FRAMED BY ACIT, CIRCLE- 9, SURAT U/S.144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 26-12-2007 FOR ASSESSMENT YEAR 2005-06. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) IN HOLDING THE ASSESSMENT AS NULL AND VOID. FOR THI S, REVENUE HAS RAISED THE EFFECTIVE GROUND NO.1 AND 2 :- ITA NO.3242/AHD/2008 A.Y. 2005-06 ACIT CIR-9, SRT V. M/S. UNIQUE ENTERPRISE PAGE 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSMENT IS NULL AND VOID AS THE NOTICE U/S.143(2) OF THE I.T. ACT WAS SERVED BEYOND THE STATUTORY TIME LIMIT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACTS THAT SERVICE OF THE NOTICE U/S.143(2) IS PROCEDURAL MATTER AS CLARIFIED BY INT RODUCTION OF SECTION 292 BB BY FINANCE ACT 2008 W.E.F. 01.04.2008 THAT P ROCEEDINGS U/S.143(2) ARE DEEMED TO BE VALID IF THE ASSESSEE H AS NOT RAISED ANY OBJECTION REGARDING NON-SERVING OF THE NOTICE UPON HIM BEFORE COMPLETION OF THE SUCH ASSESSMENT PROCEEDINGS. 3. AT THE OUTSET, IT IS NOTICED THAT THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 28-06-2005 FOR ASSESSMENT YEAR 2005-06. THE NOTICE U/S.143(2) OF THE ACT DATED 29-06-2006, WAS SERVED ON 06-07-20 07, WHICH IS BEYOND THE TIME LIMIT AS PROVIDED IN PROVISIONS OF SECTION143( 2), AS THIS NOTICE HAS TO BE SERVED WITHIN THE PERIOD OF 12 MONTHS. AFTER PERUSA L OF ASSESSMENT RECORDS, THE CIT(A) CLEARLY NOTED THAT THE SERVICE OF NOTICE WAS ON 06-07-2006, WHICH IS BEYOND THE STATUTORY TIME-LIMIT PROVIDED U/S SECTIO N 143(2) OF THE ACT. AS THE ISSUE OF 292BB AS INTRODUCED BY THE FINANCE ACT WIT H EFFECT FROM 1-4-2008, THE PROCEEDINGS SECTION 143(2) WHICH DEEMED TO BE V ALID IF THE ASSESSEE HAD NOT RAISED ANY OBJECTION REGARDING NON-SERVICE OF T HE NOTICE BEFORE COMPLETION OF SUCH ASSESSMENT PROCEEDINGS AND HE HAS PARTICIPA TED IN THE COMPLETION OF ASSESSMENT PROCEEDINGS. THE LD. CIT-DR, SHRI ANIL K UMAR STATED THAT THIS ISSUE IS COVERED BY THE DECISION OF THIS TRIBUNAL C BENCH IN THE CASE OF ITO V. VARIA PARTIK ENGINEERING IN ITA NO.1226/AHD/2007 & 104/AHD/2008 (2009) 120 TTJ 1 (AHD). ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE, SHRI M.J. SHAH STATED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF DELHI SPECIA L BENCH IN THE CASE OF KUBER TOBACCO PRODUCTS (P) LTD. V. DCIT (2009) 117 ITD 273 (DEL) [SB], ITA NO.3242/AHD/2008 A.Y. 2005-06 ACIT CIR-9, SRT V. M/S. UNIQUE ENTERPRISE PAGE 3 WHEREIN IT IS CLEAR HELD THAT THIS PROVISION OF SEC TION 292BB IS INTRODUCED PROSPECTIVELY AND NOT RETROSPECTIVE AND THAT ALSO W .E.F 1-4-2008. 4. WE FIND THAT THIS ISSUE IS COVER IN FAVOUR OF AS SESSEE AND AGAINST THE REVENUE BY THE DECISION OF ITAT DELHI SPECIAL BENCH IN THE CASE OF KUBER TOBACCO PRODUCTS (P) LTD. (SUPRA). RESPECTFULLY FOLLOWING THE SAME, WE CONFIRM THE ORDER OF CIT(A) AND THIS ISSUE OF REVEN UES APPEAL IS DISMISSED. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 22/09 /2010 SD/- SD/- (D.C.AGRAWAL) (MAHAVIR SIN GH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 22/09/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-V, SURAT 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD