Addl.CIT, SR-2, Aurangabad V. SMT. SUSHILADEVI RAMESHKUMAR BAGARIA, Aurangabad

ITA 332/PUN/2001

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7430 (ITAT-PUNE)
• Duration Of Justice: 10 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 07-03-2001
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARESHWAR SHARMA
• Keywords: Procedural lapse
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 332 & 209 /PN/ 200 1 ( ASSTT. YEAR : 1999 - 2000 & BLOCK PERIOD 1.4.88 TO 2.7.98 ) THE ADDL. COMMISSIONER OF INCOME - TAX, SR - 2, A URANGABAD .. APP ELLANT V. SMT.SUSHILADEVI RAMESHKUMAR BAGARIA , 5 & 6, GURU RAMDASNAGAR, JALNA ROAD, AURANGABAD PAN : NOT AVAILABLE . RESPONDENT APP ELLANT BY : SHRI HARESHWAR SHARMA RESPONDENT BY : SHRI S.N. PURANIK ORDER PER I.C. SUDHIR J M IN T HE SE APPEALS PREFERRED BY THE REVENUE , THE ASSESSEE HAD RAISED A PRELIMINARY OBJECTION REGARDING THE MAINTAINABILITY OF THESE APPEALS PREFERRED BY THE REVENUE AS NO NOTICE U/S. 143(2) WAS ISSUED. HENCE, ASSESSMENT IN QUESTION ARE NOT VALID. IN THIS REGARD, THE LD. A.R. PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT V/S. HOTEL BLUE MOON (2010), 321 ITR 362 (SC). SINCE OBJECTION RAISED IS LEGAL IN NATURE WHICH GOES TO THE ROOT OF THE MATTER, AND NO CONSIDERATI ON OF FRESH MATERIAL OUTSIDE THE RECORD IS REQUIRED TO ADJUDICATE THE SAME, WE ALLOWED THE ABOVE RAISED PRELIMINARY OBJECTIONS FOR OUR ADJUDICATION. 2. THE LD. D.R., ON THE OTHER HAND, TRIED TO JUSTIFY THE VALIDITY OF THE ASSESSMENT ORDERS IN QUESTION. H E SUBMITTED THAT DECISION OF HONBLE SUPREME COURT IN THE ABOVE CITED CASE WAS NOT AVAILABLE WHEN THE ASSESSMENT ORDERS WERE PASSED. HE ALSO SUBMITTED THAT NO SUCH ISSUE WAS RAISED BEFORE THE LD CIT(A). ITA . NO S.332 & 209 /PN /2001 SMT. SUSHILADEVI RAMESHKUMAR BAGARIA, A.Y. 1999 - 2000 ETC. PAGE OF 3 2 3. HAVING GONE THROUGH THE CITED DECISION OF HONB LE SUPREME COURT IN THE CASE OF THE HOTEL BLUE M OON (SUPRA), WE FIND THAT THE HONBLE SUPREME COURT HAS BEEN PLEASED TO HOLD THAT IF AN ASSESSMENT IS TO BE COMPLETED U/S. 143(3) READ WITH SECTION 158BC, NOTICE U/S. 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF THE BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE U/S. 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND IS NOT CURABLE. THEREFORE, THE REQUIREMENT OF NOTICE U/S. 143(2) CANNOT BE DISPENSED WITH. THE APPEAL PREFERRED BY THE REVENUE HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT WHILE UPHOLDING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT V/S. PAWAN GUPTA (2009), 318 ITR 322. IN THE PRESENT CASE, BEFORE US AS WELL THE CONTENTION OF THE LD. A.R. THAT NO NOTICE U/S. 143(2) HAS BEEN ISSUED AND SERVED TILL THE COMPLETION OF ASSESSMENT IN QUESTION U/S. 143(3) READ WITH SECTION 158BC , HAS NOT BEEN DISPUTED BY THE LD. D.R. EVEN THE ASSESSMENT ORDER IN QUESTION DOES NOT TALK ABOUT ISSUANC E OF NOTICE U/S. 143(2) AND SERVICE THEREOF UPON THE ASSESSEE TO FRAME THE ASSESSMENT. WE, THUS, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE SUPREME COURT, IN THE ABOVE CITED CASE OF ACIT V/S. HOTEL BLUE MOON (SUPRA) HOLD THAT THE ASSESSMENT ORDERS IN QUESTION WITHOUT ISSUANCE OF NOTICE U/S. 143(2) AS REQUIRED UNDER THE PROVISIONS OF THIS SECTION ARE INVALID AND THE SAME ARE ACCORDINGLY QUASHED. THE ISSUE RAISED IN THE PRELIMINARY OBJECTION BY THE LD. A.R. IS THUS DECIDED IN FAVOUR OF THE ASSESSEE. 4. IN RESULT, THE APPEALS ARE DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31ST MARCH 2011. ITA . NO S.332 & 209 /PN /2001 SMT. SUSHILADEVI RAMESHKUMAR BAGARIA, A.Y. 1999 - 2000 ETC. PAGE OF 3 3 SD/ - SD/ - ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE , DATED THE 31ST MARCH , 20 1 1 US COPY OF THE ORDER IS FORWARDED TO : 1. THE A PP ELLA NT 2. THE RESPONDENT 3. THE CIT , NASHIK 4. THE CIT(A) - AURANGABAD 5. THE D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLA TE TRIBUNAL PUNE