SAURABH BANKIMCHANDRA DANI, MUMBAI V. DCIT 4(1), MUMBAI

ITA 339/MUM/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2687 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 21-01-2016
• Court: TRIBUNAL
• Department Lawyers: KUSUM BA NSAL
• Assessee Lawyers: BHARATH JANARTHANAN
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H , BENCH MUMBAI BEFORE: SHRI R.C.SHARMA, AM & SHRI PAWAN SINGH , JM ITA NO. 339/MUM/2016 ( ASSESSMENT YEAR : 200 9 - 20 10 ) SHRI SAURABH BANKIMCHANDRA DANI, 6 TH FLOOR, VASUDHA APARTMENT, SADANAND HUFHU MARG, WORL I, MUMBAI 400025 VS. DCIT, 4 ( 1 ), MUMBAI PAN/GIR NO. : AA CPD8834B ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI BHARATH JANARTHANAN REVENUE BY : MISS KUSUM BANSAL DATE OF HEARING : 04/10 /2016 DATE OF PRON OUNCEMENT 07 / 10 /2016 / O R D E R PER R.C.SHARMA (A.M) : THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) FOR THE ASSESSMENT YEAR 2009 - 2010 IN THE MATTER OF ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE I.T. ACT. 2. IN THIS APPEAL, ASSESSEE IS AGGRIEVED FOR THE ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 ON THE PLEA THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED NOR THE REASONS RECORDED FOR REOPENING WERE SUPPLIED TO THE ASSESSEE. 3. IT WAS ARGUED BY LE ARNED AR THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED. OUR ATTENTION WAS INVITED TO THE REMAND REPORT CALLED BY CIT(A) DURING APPELLATE PROCEEDINGS WHEREIN, AO HAS CLEARLY ACCEPTED THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED. RELIANCE WAS PLACED ON TH E DECISION OF THE DELHI HIGH COURT 2 ITA NO. 339/M/2016 SAURABH BANKIMCHANDRA DANI IN THE CASE OF JAI SHIV SHANKAR TRADERS PVT. LTD., 383 ITR 448 , BANGALORE HIGH COURT IN THE CASE OF ASHED PROPERTIES & INVESTMENTS (P) LTD., 62 TAXMANN.COM 340 AND ON THE DECISION OF CHANDIGARH TRIBUNAL IN CASE OF SAN JEEV AGGARWAL 159 ITD 302 IN SUPPORT OF PROPOSITION THAT ASSESSMENT FRAMED WITHOUT ISSUE OF NOTICE UNDER SECTION 143(2) IS NULL AND VOID. IT WAS ALSO CONTENTION OF LEARNED A.R THAT REASONS RECORDED FOR REOPENING WAS ALSO NOT SUPPLIED TO ASSESSEE INSPITE OF SPE CIFIC REQUEST MADE BY ASSESSEE. 4. ON THE OTHER HAND, LEARNED DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 5. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS REMAND REPORT ISSUED BY THE AO WHEREIN AO HAS CLEARLY ACCEPTED THE FACT THAT NO NOTICE UNDER SECTION 143( 2 ) WAS ISSUED, HOWEVER, HE SUPPORTED THE ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 BY OBSERVING THAT ASSESSEE HAS NOT OBJECTED THE SAME DURING THE COURSE OF ASSESSMENT PROCEEDINGS . T HE FAILURE BY THE AO TO ISSUE NOTICE UNDER SECTION 143(2) IS FATAL T O THE ORDER OF THE REASSESSMENT AS PER VERDICT OF HONBLE DELHI HIGH COURT IN THE CASE OF JAI SHIV SHANKAR TRADERS (SUPRA), HONBLE CHANDIGARH HIGH COURT IN CASE OF SANJEEV AGGARWAL FURTHER CLARIFIED THE POSITION WITH REGARD TO INTRODUCTION OF PROVISIONS UNDER SECTION 292BB AND THE ASSESSMENT FRAMED WITHOUT ISSUE OF 143(2) NOTICE AND OBSERVED AS UNDER: - FROM THE BARE PERUSAL OF THE ABOVE SECTION, WE SEE THAT A DEEMING FICTIO N HAS BEEN CREATED BY THIS SECTION. IN CASE, AN ASSESSEE COOPERATES DURING THE ASSESSMENT EVEN IF NO NOTICE HAS BEEN SERVED ON HIM, IT IS DEEMED TO BE SERVED UPON HIM IN TIME AS PER THE PROVISIONS OF THE ACT. THE PROVISIONS OF THIS 3 ITA NO. 339/M/2016 SAURABH BANKIMCHANDRA DANI SECTION IS DEEMED TO BE SERVED UPON HIM IN TIME AS PER THE PROVISIONS OF THE ACT. THE PROVISIONS OF THIS SECTION CLEARLY LAID DOWN THE CIRCUMSTANCES UNDER WHICH THE DEEMING FICTION HAS TO COME INTO FORCE. THESE CONDITIONS HAVE BEEN STATED TO BE AS (A), (B) AND (C), WHICH TALKS AB OUT THE SITUATION WHERE THE NOTICE WAS NOT SERVED UPON THE ASSESSEE OR NOT SERVED UPON HIM IN TIME OR SERVED UPON HIM IN AN IMPROPER MANNER RESPECTIVELY. THEREFORE, WE SEE THAT SECTION TALKS ABOUT ONLY THE SITUATION WHERE THE ASSESSEE RAISES THE ISSUE OF N ON - SERVICE OF A NOTICE AND STILL COOPERATES WITH THE DEPARTMENT. OTHERWISE ALSO, WE ARE OF THE OPINION THAT ISSUANCE OF STATUTORY NOTICE CANNOT BE DISPENSED WITH BY THE COOPERATION OF THE ASSESSEE. SINCE THIS NOTICE FORMS THE BASIS FOR ASSESSING OFFICER TO ASSUME JURISDICTION UNDER RESPECTIVE SECTIONS. RELIANCE PLACED BY THE LEARNED COUNSEL FOR THE ASSESSEE ON THE JUDGMENT OF THE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CEBON INDIA LTD (SUPRA) IS NOT OUT OF PLACE, WHEREBY IT HAS BEEN VERY CATEGORICALLY HE LD THAT ABSENCE OF A STATUTORY NOTICE CANNOT BE HELD TO BE CURABLE UNDER SECTION 292BB OF THE ACT. 6. IN VIEW OF THE ABOVE DISCUSSION, RESPECTFULLY FOLLOWING THE DECISION OF DELHI HIGH COURT AS WELL AS CO - ORDINATE BENCH AS REFERRED ABOVE, WE DO NOT FIND ANY MERIT IN THE RE - ASSESSMENT ORDER PASSED U/S 143(3) READ WITH SECTION 147 , FRAMED WITHOUT ISSUE OF 143(2) NOTICE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 / 10 / 2016. SD/ - ( PAWAN SINGH ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 07/10 /2016 KARUNA , SR. PS / COPY OF THE ORDER FORWARDED TO : 4 ITA NO. 339/M/2016 SAURABH BANKIMCHANDRA DANI / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//