M/s. G.R.G. Construction Co, Srinagar (J&K) V. The Income-tax Officer, Srinagar

ITA 353/ASR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8837 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 30-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SHARDA
• Assessee Lawyers: BHAGAR
• Keywords: Validity of assessment
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S. KAPOOR, HONBLE ACCOUNTANT MEMBER I.T.A NO. 353(ASR)/2013 ASSESSMENT YEAR:2005-06 M/S G.R.G. CONSTRUCTION CO., DABTAL ZAINA KADAL, SRINAGAR (J&K). PAN:AAGFG2677K VS. THE ITO, WARD-2, SRINAGAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. M.R.BHAGAR RESPONDENT BY: SH. R.K. SHARDA (DR.) DATE OF HEARING: 01.02.2016 DATE OF PRONO UNCEMENT: 17.02.2016 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINS T THE ORDER OF LEARNED CIT(A), JAMMU DATED 14.07.2008 FOR THE ASST. YEAR 2 005-06. 2. THE APPEAL WAS EARLIER DISMISSED BEING DEFECTING VIDE TRIBUNAL ORDER DATED 6 TH SEP., 2013. HOWEVER, THE SAID TRIBUNAL ORDER WAS RECALLED VIDE TRIBUNAL ORDER DATED 11.04.2014, AND THE APPEAL WAS LISTED FOR HEARING ON MERITS. 3. AT THE OUTSET, THE LEARNED AR INVITED OUR ATTENT ION TO GROUND NO.3 OF APPEAL AND SUBMITTED THAT THE ASSESSMENT IN THIS WAS COMPLETED WITHOUT SERVING OF NOTICE AS REQUIRED U/S 282 OF TH E INCOME TAX ACT, ITA NO.35 3 (ASR)/2013 ASST. YEAR: 2005-06 2 1961. THEREFORE, HE SUBMITTED THAT THE ASSESSMENT I TSELF NEEDS TO BE QUASHED. THE LEARNED AR SUBMITTED THAT THOUGH THIS GROUND OF NON SERVING OF NOTICE WAS NOT TAKEN DURING THE APPEAL B EFORE THE LEARNED CIT(A), BUT SINCE IT WAS A LEGAL ISSUE THEREFORE AS SESSEE HAS RIGHT TO RAISE THIS ISSUE AT THIS STAGE AND RELIANCE IN THIS RESPE CT WAS PLACED ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE IN TH E CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT, 229 ITR 83 (SC). 4. HE FURTHER INVITED OUR ATTENTION TO LETTER OF RE QUEST BY WHICH THE ASSESSEE HAD REQUESTED FOR ADMITTING THE ADDITIONAL GROUNDS OF APPEAL. 5. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THA T ASSESSEE DID NOT CO-OPERATE DURING THE ASSESSMENT PROCEEDINGS AN D THEREFORE, THE ORDER WAS PASSED U/S 144 AND HE FURTHER STATED THAT NO SUCH GROUND WAS TAKEN BEFORE LEARNED CIT(A), THEREFORE, THE GRO UND OF APPEAL DOES NOT ARISE FROM THE IMPUGNED ORDER. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSMENT IN THIS RESPECT WAS COMPLETED U/S 144 OF THE ACT. FROM THE FINDINGS REC ORDED BY ASSESSING OFFICER IN THE ASSESSMENT ORDER, WE FIND THAT ASSES SING OFFICER HAS MENTIONED THE FACT OF NOTICE U/S 142(1), HOWEVER, N OWHERE HE HAS MENTIONED ABOUT THE FACT THAT NOTICE U/S 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. THE FACTS REGARDING SERVICE OF N OTICE ARE NOT COMING OUT FROM ASSESSMENT ORDER. THE LEARNED CIT(A) THOUG H AT PARA 3.2 HAS ITA NO.35 3 (ASR)/2013 ASST. YEAR: 2005-06 3 NOTED THAT ASSESSEE HAS FAILED TO COMPLY WITH THE T ERMS OF NOTICE U/S 143(2) AND 142(1) OF THE ACT, 1961 BUT SINCE THE AS SESSEE HAS RAISED THIS PRELIMINARY QUESTION OF VALIDITY OF ASSESSMENT ORDE R ITSELF, IT IS NECESSARY TO FIRST LOOK INTO THIS FACT AS TO WHETHER THE NOTI CE U/S 143(2) WAS SERVED UPON THE ASSESSEE AS PER REQUIREMENTS OF LAW OR NOT . THEREFORE, IN THE INTEREST OF JUSTICE THE APPEAL IS REMITTED BACK TO ASSESSING OFFICER WHO ON THE BASIS OF RECORDS AVAILABLE AND AFTER CONFRONTIN G THE ASSESSEE REGARDING SERVING OF NOTICE WILL GIVE HIS FINDING O N THIS ISSUE AND WILL COMPLETE THE ASSESSMENT AFTER RECORDING HIS FINDING S. THEREFORE, THE APPEAL IS REMITTED BACK TO ASSESSING OFFICER FOR DE CIDING THIS ISSUE AND THEN PASSING THE ORDER ON THE BASIS OF FACTS AND CI RCUMSTANCES. NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUFFICIENT OP PORTUNITY OF BEING HEARD. 7. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH FEBRUARY, 2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED: 17.02. 2016. /PK/PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, ITA NO.35 3 (ASR)/2013 ASST. YEAR: 2005-06 4 (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.