M/s. Tulu Enterprises, Rourkela V. Assessing Officer, Ward- 5, Rourkela

ITA 372/CTK/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5850 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 13-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J K LENKA
• Keywords: Principle of natural justice; Procedural lapse
• Section: 201; 143(2)

Judgement Text

P A G E 1 | 3 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK SMC BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER ITA NO . 372 /CTK/201 9 ASSESSMENT YEAR : 201 0 - 2011 M/S. TULU ENTERPRISES, GANJU MARKET, FERTILISER TOWNSHIP, ROURKELA. VS. ITO, WARD - 5, ROURKELA. PAN/GIR NO. AABFT 2528 B (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI BINOD AGARWAL , A DV REVENUE BY : SHRI J.K.LENKA , DR DATE OF HEARING : 14 / 0 2 / 20 20 DATE OF PRONOUNCEMENT : 14 / 0 2 / 2020 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), SAMBALPUR DATED 26.8.2019 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LD CIT(A0 HAS JUSTIFIED THE REJECTION OF BOOKS OF ACCOUNT BY AO AS JUSTIFIED WHICH IS BAD IN LAW AND AGAINST THE NATURAL JUSTICE. 2. ADDITION OF RS.12,82,410/ - BY AO IN THE ASSESSMENT BY APPLYING SPECIAL AND SELF DEVELOPED FORMULA FOR TRANSPORT BUSINESS IS GROSS VIOLATION AGAINST ACCEPTED POLICIES. 3. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE RAISED A LEGAL GROUND THAT THE NOTICE U/S. 143(2) OF THE ACT SHOULD HAVE BEEN SERVED ON OR BEFORE 30.9.2011. HOWEVER, THE NOTICE DATED 27.9.2011 HAS BEEN SERV ED ON 28.10.2011 ON THE ASSESSEE, THEREFORE, THE IMPUGNED ASSESSMENT FRAMED U/S.144 OF THE ACT ON ITA NO.372/CTK/2019 ASSESSMENT YEAR : 2010 - 2011 P A G E 2 | 3 22.2.2013 IS VOID AB INITIO IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS HOTEL BLUE MOON (2010) 321 ITR 362 (SC). 4. LD D.R. DID NO T CONTROVERT THE SUBMISSION OF LD D.R. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD OF THE CASE. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2010 - 2011 ON 13.10.2010. THE CONTENTION OF THE ASSESEE IS THAT NOTICE U/S.143(2) OF THE ACT COULD HAVE BEEN SERVED ON THE ASSESSEE WITHIN SIX MONTHS FROM THE END OF THE F INANCIAL YEAR IN WHICH THE RETURN IS FURNISHED BY THE ASSESSEE. HE SUBMITTED THAT THE RETURN OF INCOME WAS FILED ON 13.10.2010 AND SIX MONTHS FROM THE END OF THE END OF MAY, 2010 EXPIRES ON 30.9.2011. THEREFORE, NOTICE U/S.143(2) OF THE ACT COULD HAVE BE EN ISSUED ON THE ASSESSEE ON OR BEFORE 30.9.2011. IN THE INSTANT CASE, NOTICE U/S.143(2) OF THE ACT WAS ISSUED ON 27.9.2011 AND SERVED ON THE ASSESSE E ON 28.10.2011, WHICH IS MUCH BEFORE THE TIME PERIOD FOR ISSUANCE OF NOTICE U/S.143(2) HAS EXPIRED. THER EFORE, NOTICE ISSUED U/S.143(2) OF THE ACT WAS BAD IN LAW AND CONSEQUENTLY ASSESSMENT FRAMED IN PURSUANCE TO SUCH NOTICE IS ALSO BAD IN LAW. I AM FORTIFIED BY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON (SUPRA), WHEREIN, IT WAS HELD THAT THE ASSESSING OFFICER MUST NECESSARILY ISSUE NOTICE U/S.143(2) OF THE ACT WITHIN THE TIME PRESCRIBED IN THE PROVISO TO SECTION 143(2) AND THE OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE U/S.143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND IS NOT CURABLE AND REQUIREMENT OF NOTICE U/S.143(2) CANNOT BE DISPENSED WITH. RESPECTFULLY FOLLOWING THE DECISION OF ITA NO.372/CTK/2019 ASSESSMENT YEAR : 2010 - 2011 P A G E 3 | 3 HONBLE SUPREME COURT IN THE CASE OF BLUE MOON (SUPRA), I QUASH THE ASSESSMENT ORDER FRAMED U/S.144 OF THE ACT AND ALLO W THE LEGAL GROUND OF THE ASSESSEE. 6. SINCE, THE ASSESSMENT ORDER IS QUASHED, OTHER GROUNDS OF APPEAL ON MERITS OF THE ISSUE HAVE BECOME INFRUCTUOUS AND HENCE, NOT ADJUDICATED UPON. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 14 / 0 2 /20 20 . S D/ ( CHANDRA MOHAN GARG) JUDICIAL MEMBER CUTTACK; DATED 14 / 0 2 /20 20 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : M/S. TULU ENTERPRISES, GANJU MARKET, FERTILISER TOWNSHIP, ROURKELA 2. THE RESPONDENT. ITO, WARD - 5, ROURKELA 3. THE CIT(A) - , SAMBALPUR 4. PR.CIT - , SAMBALPUR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//