THE ACIT 12(3), MUMBAI V. SHRI SANJAY CHEMICAL CORPORATION, MUMBAI

ITA 3269/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7311 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 04-03-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 09-05-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: L.K.AGARWAL
• Assessee Lawyers: JITENDRA SINGH; S K.GOPAL
• Keywords: Assessment record
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J MUMBAI BEFORE SHRI PRAMOD KUMAR, AM & SMT. P.MADHAVI DEVI, JM I.T.A.NO.3269/MUM/2008 - A.Y 2003-04 ASST. COMMISSIONER OF I.T. 12(3), MUMBAI VS. M/S SANJAY CHEMICAL CORPORATION, 61, MITTAL TOWER, B WINGH, 6 TH FLOOR, LNARIMAN POINT, MUMBAI 400 021. PAN NO.AAABFS 2981 B (APPELLANT) (RESPONDENT) REVENUE BY : SHRI L.K.AGARWAL. ASSESSEE BY : S/SHRI K.GOPAL & JITENDRA SINGH. O R D E R PER P.MADHAVI DEVI, JM: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST CIT (A)S ORDER DATED 13/02/2008. 2. THE ONLY GRIEVANCE OF THE REVENUE IN THIS APPEAL ARE AS UNDER- 1. CIT(A) HAS ERRED IN CANCELING THE ASSESSMENT ORD ER DATED 23-1-02 U/S.143[3] OF THE ACT. 2. WITHOUT PREJUDICE TO GROUND NO.1, THE LD. CIT(A) ERRED IN CONCLUDING THAT THE FIRST NOTICE U/S.143[2] OF THE ACT WAS INDEED ISSUED ON 18-07-05 WHICH WAS MUCH AFTER THE DUE DATE FOR ISSUE OF SUCH NOTICE, WITHOUT GIVING THE ASSESSING OFFICER ANY O PPORTUNITY IN THIS REGARD. 3. WITHOUT PREJUDICE TO GROUND NOS.1 AND 2, THE LD. CIT(A) ERRED IN HOLDING THAT THE FIRST NOTICE U/S.143[2] OF THE ACT WAS INDEED ISSUED ON 18/07/05 EVEN THOUGH THE VERIFICATION OF THE CAS S RECORDS ON ITD SHOWS THAT THE ASSESSMENTS FOR A.YS.2003-04 AND 200 4-05 WERE SELECTED FOR SCRUTINY, NOTICES WERE GENERATED ON 23 /11/04 FOR BOTH THE A.YS. AND THE NOTICE U/S.143[2] OF THE ACT DT. 23/1 1/04 FOR A.Y. 2004- 05 IS AVAILABLE IN THE RELEVANT ASSESSMENT RECORD. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI RM FILED ITS RETURN OF INCOME ON 1-3-2004 DECLARING INCOME OF RS.26,07, 360/-. THE RETURN ITA NO.3269 OF 0 8 2 WAS PROCESSED U/S.143[1] ON 10-7-2004. SUBSEQUENTLY , THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S.143[2] AND 14 2[1] WERE ISSUED ON 18-7-2005 AND SERVED ON THE ASSESSEE ON 21-7-05. AO THEREAFTER PROCEEDED TO ASSESS THE INCOME U/S.143[3] OF THE AC T AND MADE CERTAIN DISALLOWANCES AND ADDITIONS AND ASSESSED TH E INCOME AT RS.29,17,610/-. 4. AGGRIEVED ASSESSEE FILED AN APPEAL BEFORE THE CI T(A) CHALLENGING THE ORDER OF THE AO ON MERITS OF THE AD DITIONS AS WELL AS ON THE GROUND THAT NOTICES ISSUED U/S.143[2] AND 142[1 ], WERE TIME BARRED. THE CIT(A) AFTER CONSIDERING THE FACTS OF T HE CASE HELD THAT THE NOTICES ARE TIME BARRED AND, THEREFORE, CANCELLED T HE ASSESSMENT ORDER. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE U S. 5. THE LD.DR PLACED RELIANCE UPON THE ORDER OF THE AO, WHILE THE LD.COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER O F THE CIT(A). 6. HAVING HEARD BOTH THE PARTIES, WE FIND THAT UNDI SPUTEDLY NOTICE U/S.143[2] WAS ISSUED ON 18-7-05. THE PROVISO TO CL AUSE OF SUB-SEC.[2] PROVIDES THAT NOTICE UNDER CLAUSE (II) SHALL NOT BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FILED. IN THE CASE BEFORE US TH E RETURN WAS FILED ON 1-3-04 AND, THEREFORE, NOTICE U/S.143[2] OF THE I.T .ACT WAS REQUIRED TO BE SERVED BEFORE 1-4-2005 WHEREAS THE NOTICE IS SER VED ON 18-7-2005. IN VIEW OF THE SAME, WE DO NOT SEE ANY REASON TO IN TERFERE WITH THE ORDER OF THE CIT(A) AND THE GROUNDS OF APPEAL RAISE D BY THE REVENUE ARE DISMISSED. ITA NO.3269 OF 0 8 3 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS 10TH DAY OF MARCH, 2010. SD/- SD/- (PRAMOD KUMAR) (P.MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI:10 TH MARCH, 2010. P/-*