Shri Hemraj Mali (Patel), Ujjain V. The ITO, Ujjain

ITA 350/IND/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 5933 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 16-08-2011
• Assessment Year: misc
• Appeal Filed On: 31-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: A L JAIN; SHARAD JAIN CAS
• Keywords: Period of limitation
• Section: 150(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : AMHPP1036P I.T.A.NO. 348/IND/2010 A.Y. : 1989-90 SHRI PURSHOTTAM MALI (PATEL), ITO, WARD 1(1), MALIPURA, UJJAIN VS UJJAIN APPELLANT RESPONDENT PAN NO. : AMHPP2132R I.T.A.NO. 349/IND/2010 A.Y. : 1989-90 SHRI SHIV NARAYAN MALI (PATEL). ITO, WARD 1(1), THROUGH L/H SHRI TEJNARAYAN MALI (PATEL), MALIPURA, UJJAIN VS UJJAIN APPELLANT RESPONDENT PAN NO. : AMHPP2133Q I.T.A.NO. 350/IND/2010 A.Y. : 1989-90 SHRI HEMRAJ MALI (PATEL), ITO, WARD 1(1), MALIPURA, UJJAIN VS UJJAIN APPELLANT RESPONDENT -: 2: - 2 PAN NO. : AMHPP2131N I.T.A.NO. 351/IND/2010 A.Y. : 1989-90 SHRI BHERULALL MALI (PATEL). ITO, WARD 1(1), THROUGH L/H SHRI BHAGWAN MALI (PATEL), MALIPURA, UJJAIN VS UJJAIN APPELLANT RESPONDENT APPELLANT BY : SHRI A.L.JAIN AND SHRI SHARAD JAIN, CAS. RESPONDENT BY : SHRI ARUN DEWAN, SR. DR DATE OF HEARING : 11.10.2011 DATE OF PRONOUNCEMENT : 31.10.2011 O R D E R PER R. C. SHARMA, A.M. THESE ARE THE APPEALS FILED BY THE ASSESSEES AGAINS T THE ORDER OF CIT(A) FOR THE ASSESSMENT YEAR 1989-90 IN THE MATTER OF ORDER PASSED U/S 143(3)/148 OF THE INCOME-TAX AC T, 1961. 2. COMMON GROUNDS INVOLVED IN ALL THE APPEALS RELATE T O VALIDITY OF REOPENING U/S 147 READ WITH SECTION 150 (2) AND -: 3: - 3 153(2A) OF THE ACT. AS SIMILAR FACTS ARE INVOLVED I N ALL THE APPEALS, THEY WERE HEARD TOGETHER AND NOW DECIDED B Y THIS CONSOLIDATED ORDER. 3. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND FROM RECORD THAT ALL THE ASSESSEES WERE IN RECEIPT OF COMPENSATION UNDER THE M.P. LAND ACQUISITION ACT. N OTICE WAS ISSUED TO THE ASSESSEE U/S 148 TO CHARGE THE ABOVE INCOME IN INDIVIDUAL STATUS ON 16.7.1992. ASSESSMENT ORDER WA S PASSED ON 23.2.1995. IN ALL THESE CASES, FOLLOWING INCOMES WERE BROUGHT TO TAX NET BY ISSUING NOTICES U/S 147 :- 1. SHRI HEMRAJ MALI RS. 30,930/- 2. SHRI BHERULAL MALI RS. 40,700/- 3. SHRI SHIV NARAYAN MALI RS. 30,930/- 4. SHRI PURSHOTTAM MALI RS. 99,660. ] 4. IN AN APPEAL FILED BEFORE THE CIT(A) VIDE HIS ORDE R DATED 30.6.1996, IT WAS HELD BY THE LD. CIT(A) THAT CORRECT YEAR OF TAXABILITY IS 1986-87. HOWEVER, AN APPEAL WAS FI LED BY DEPARTMENT AGAINST THIS ORDER OF CIT(A) BEFORE THE TRIBUNAL, WHICH WAS DELAYED BY 8 YEARS. THE TRIBUNAL VIDE ITS ORDER -: 4: - 4 DATED 31.5.2006 DISMISSED THE APPEALS OF THE REVENU E ON THE GROUND OF DELAY. AFTER THE ORDER OF CIT(A), NOTICE U/S 148 WAS ISSUED TO ASSESSEE ON 23.12.1996 FOR THE ASSESSMENT YEAR 1986-87. IN RESPONSE TO THIS NOTICE, RETURN WAS FIL ED ON 18.2.1997 FOR THE ASSESSMENT YEAR 1986-87. ASSESSME NT ORDER U/S 143(3)/148 FOR ASSESSMENT YEAR 1986-87 WAS PASS ED ON 23.3.1999, WHEREIN CAPITAL GAIN WAS ASSESSED IN IND IVIDUAL HANDS. IN AN APPEAL FILED BEFORE THE CIT(A) FOR ASS ESSMENT YEAR 1986-87, THE ADDITION SO MADE WAS CONFIRMED. AN APP EAL AGAINST THE AFORESAID ORDER OF CIT(A) DATED 23.3.19 99 FOR ASSESSMENT YEAR 1986-87 WAS DECIDED BY THE TRIBUNAL VIDE ORDER DATED 17.8.2005 WHEREIN IT WAS HELD THAT THE ABOVE INCOME WAS NOT TAXABLE IN THE YEAR 1986-87. HOWEVER , NO DIRECTION WAS GIVEN BY THE TRIBUNAL IN ITS ORDER DA TED 17.8.2005 FOR ASSESSING THIS INCOME IN ASSESSMENT Y EAR 1989- 90. AFTER THIS ORDER OF THE TRIBUNAL, A NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE ON 12.1.2006 FOR THE ASSESSM ENT YEAR 1989-90. THE ASSESSEE OBJECTED THE VALIDITY OF NOTI CE U/S 148. HOWEVER, THE AO DID NOT AGREE WITH THE ASSESSEES C ONTENTION AND AGAIN CONFIRMED THE ADDITION IN THE INDIVIDU AL HANDS -: 5: - 5 AND THE CIT(A) VIDE IMPUGNED ORDER CONFIRMED THE AC TION OF THE AO AND THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. CONTENTION OF THE LD. AUTHORIZED REPRESENTATIVE WAS THAT NO NOTICE FOR REOPENING WAS ISSUED WITHIN 4 YE ARS AND THE REOPENING WAS ON THE BASIS OF ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 1986-87, WHEREIN NO FINDING WAS GIV EN BY THE TRIBUNAL FOR ASSESSING THE INCOME IN THE ASSESSMENT YEAR 1989-90, THEREFORE, THE ISSUE OF NOTICE U/S 148 ON 12.1.2006 IS BEYOND PERIOD OF LIMITATION AS PER PROVISIONS OF SECTION 150(2) OF THE INCOME-TAX ACT, 1961, IN SO FAR AS IN COME ASSESSED WAS BELOW RS. 1 LAC IN EACH CASE. FOR THE BETTER UNDERSTANDING OF PROVISIONS OF SUB SECTION (2) OF S ECTION 150, WE ARE REPRODUCING HEREUNDER SECTION 150(1) AND SEC TION 150(2) :- PROVISION FOR CASES WHERE ASSESSMENT IS IN PURSUANCE OF AN ORDER ON APPEAL, ETC. 150. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 149 , THE NOTICE UNDER SECTION 148 MAY BE ISSUED AT ANY TIME FOR THE -: 6: - 6 PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT OR RECOMPUTATION IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED BY ANY AUTHORITY IN ANY PROCEEDING UNDER THIS ACT BY WAY OF APPEAL, REFERENCE OR REVISION [OR BY A COURT IN ANY PROCEEDING UNDER ANY OTHER LAW]. (2) THE PROVISIONS OF SUB-SECTION (1) SHALL NOT APPLY IN ANY CASE WHERE ANY SUCH ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS IS REFERRED TO IN THAT SUB-SECTION RELATES TO AN ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION COULD NOT HAVE BEEN MADE AT THE TIME THE ORDER WHICH WAS THE SUBJECT-MATTER OF THE APPEAL, REFERENCE OR REVISION, AS THE CASE MAY -: 7: - 7 BE, WAS MADE BY REASON OF ANY OTHER PROVISION LIMITING THE TIME WITHIN WHICH ANY ACTION FOR ASSESSMENT, REASSESSMENT OR RECOMPUTATION MAY BE TAKEN. 6. IT IS CLEAR FROM THE ABOVE THAT UNDER SUB SECTION 2 OF SECTION 150 WHERE ANY ASSESSMENT, REASSESSMENT RELA TES TO ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMENT C OULD NOT HAVE BEEN MADE AT THE TIME, THE ORDER, WHICH WAS TH E SUBJECT MATTER OF APPEAL WAS MADE BY REASON OF ANY OTHER PR OVISIONS LIMITING THE TIME WITHIN WHICH ANY ACTION FOR ASSES SMENT, REASSESSMENT MAY BE TAKEN. AS THERE WAS NO SPECIFIC DIRECTION BY THE TRIBUNAL IN ITS ORDER FOR ASSESSMENT YEAR 19 86-87 FOR TAXING THE INCOME IN THE ASSESSMENT YEAR 1989-90, W E DO NOT FIND ANY MERIT IN THE ORDER OF THE AO FOR REOPENING THE ASSESSMENT AFTER EXPIRY OF FOUR YEARS, WHERE INCOME ESCAPED WAS LESS THAN RS. ONE LAC. IN THE INSTANT CASE, LIM ITATION FOR ISSUE OF NOTICE U/S 148 HAD ALREADY BEEN EXPIRED ON 31.3.1996 U/S 150(2) AND SINCE THERE WAS NO SPECIFIC DIRECTIO N IN THE ORDER OF TRIBUNAL DATED 17.8.2005 FOR TAXING THE IN COME IN -: 8: - 8 ASSESSMENT YEAR 1989-90, THE REOPENING OF ASSESSMEN T BY ISSUE OF NOTICE ON 12.1.2006 WAS BARRED BY LIMITATI ON. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALL OWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2011. SD/- SD/- (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31 ST OCTOBER, 2011. CPU*