M/s S.M. Milkose Ltd., Gwalior V. A.C.I.T., Circle-3, Gwalior

ITA 368/AGR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94114 (ITAT-AGRA)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 16-12-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BELU SINHA
• Assessee Lawyers: DIPENDRA MOHAN; KM PRARTHANA JALAN
• Keywords: Depreciation; Unabsorbed depreciation; Reassessment proceedings
• Section: 80IB; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SH RI G.C. GUPTA, VICE PRES ID ENT AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER ITA NO. 368/AGRA/2014 ASSESSMENT YEAR: 2003 - 04 M/S. S.M. MILKOSE LTD., VS. A.C.I.T., CIRCLE - 3, 5, MORAR ENCLAVE, NEAR HOTEL SURUCHI, GWALIOR. GOLA KA MANDIR, GWALIOR. (PAN : AAFCS 2253 M) APPELLANT BY : SHRI DIPENDRA MOHAN, C.A. & KM. PRARTHANA JALAN, C.A. RESPONDENT BY : SMT. BELU SINHA, SR. DR DATE OF HEARING : 23.07.2015 DATE OF PRONOUNCEMENT : 12.08. 2015 O R D E R PER INTURI RAMA RAO , ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE APPELLANT COMPANY AGAINST THE ORDER OF LD . CIT(A) , GWALIOR DATED 27.06.2014 FOR THE A.Y. 2003 - 04, RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AN D CIRCUMSTANCES OF THE CASE AND IN LAW, AND IN ANY VIEW OF THE MATTER THE LD. AUTHORITIES BELOW HAVE ERRED IN INITIATING AND CONFIRMING THE PROCEEDING U/S. 147 OF THE ACT. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, AND IN ANY VIEW OF T HE MATTER THE LD. AUTHORITIES BELOW HAVE ERRED IN COMPLETING AND UPHOLDING THE ASSESSMENT U/S. 144 OF THE ACT. ITA NO.368/AGRA/2014 A.Y. 2003 - 04 2 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, AND IN ANY VIEW OF THE MATTER THE LD. AUTHORITIES BELOW HAVE ERRED IN COMPLETING THE ASSESSMENT WITHOUT ALLOWING DEDUCTION U/S. 80IB OF THE INCOME TAX ACT, 1961 PRIOR TO SET OFF OF BROUGHT FORWARD UNABSORBED DEPRECIATION. 2. THE ISSUE IN APPEAL RELATES TO THE VALIDITY OF REASSESSMENT PROCEEDINGS. IT WAS STATED BY THE LD. COUNSEL F OR THE ASSESSEE THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED IN THIS CASE AND, THEREFORE, HE PRAYED THAT THE ASSESSMENT ORDER MAY BE QUASHED. 3. ON THE OTHER HAND, LD. SR. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT IT IS NOT CLEAR FROM THE RECORD THAT W HETHER NOTICE WAS ISSUED OR NOR AND, THEREFORE, PRAYED FOR RESTORING THE MATTER TO THE FILE OF LD. CIT(A) FOR VERIFICATION OF THE MATTER WHETHER NOTICE WAS ISSUED UNDER SECTION 142 OR NOT. NOW IT IS TRITE LAW THAT IN THE CASE OF REASSESSMENT PROCEEDINGS , ASSESSMENT MADE WITHOUT ISSUANCE OF NOTICE UNDER SECTION 142(2) IS BAD IN LAW AND LIABLE TO BE QUASHED AS HELD BY HON BLE APEX COURT IN THE CASE OF ACIT & ANOTHER VS. HOTEL BLUE MOON (2010) 321 ITR 362 (SC): - HELD: IT IS MANDATORY FOR THE A.O. TO ISSUE NOTICE U/S 143(2). THE ISSUANCE AND SERVICE OF NOTICE U/S 143(2) IS MANDATORY AND NOT PROCEDURAL. IF THE NOTICE IS NOT SERVED WITHIN THE PRESCRIBED PERIOD, THE EASEMENT ORDER IS INVALID REASSESSMENT ----- NOTICE -------- ASSESSEE INTIMATING ORIGINAL RET URN BE TREATED AS FRESH RETURN ----- REASSESSMENT PROCEEDING COMPLETED DESPITE ASSESSEE FILING AFFIDAVIT DENYING SERVICE OF NOVICE UNDER SECTION 143(2) ----- ASSESSING OFFICER NOT REPRESENTING BEFORE COMMISSIONER (APPEALS) THAT NOTICE HAD BEEN ISSUED ---- REASSESSMENT ORDER INVALID DUE TO WANT OF NOTICE UNDER SECTION 143(2) INCOME TAX ACT, 1961, SS. 143, 147, 148(I), PROV. ----- ITO VS. R.K. GUPTA [3081 ITR 49 (DELHI)] TRIBU. ITA NO.368/AGRA/2014 A.Y. 2003 - 04 3 4. WE FIND MERIT IN THE SUBMISSION MADE BY THE SR. DEPARTMENTAL REPRESENTATIV E THAT WHEN IT IS NOT CLEAR FROM THE RECORDS OF ASSESSMENT THAT WHETHER NOTICE WAS ISSUED OR NOT UNDER SECTION 14 3(2) , IT IS MOST APPROPRIATE TO RESTORE THE MATTER TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION AND OR VERIFICATION FROM THE RECORD. IF NO NOTICE WAS ISSUED UNDER SECTION 143(2) OF THE CASE, THE ASSESSMENT MADE MAY BE QUASHED FOLLOWING THE LAW LAID DOWN BY THE HON BLE APEX COURT IN THE CASE OF HON BLE APEX COURT IN THE CASE OF ACIT & ANOTHER VS. HOTEL BLUE MOON, 321 ITR 362 (SUPRA). APPEAL FILED BY THE ASSESSEE IS DISPOSED OFF ACCORDINGLY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 12.08.2015 ) SD/ - SD/ - ( G.C. GUPTA ) ( INTURI RAMA RAO ) VICE PRESIDENT ACC OUNTANT MEMBER DATE: 12 TH AUGUST , 201 5 PBN/* COPY OF THE ORDER FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA