Shri Sanjay Chaudhury, Bhubaneswar V. ITO, Ward-2(2), Bhubaneswar

ITA 406/CTK/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7220 (ITAT-CUTTACK)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 22-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY CHARAN ROUT
• Keywords: Reassessment proceedings
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.406/CTK/2016 ASSESSMENT YEAR : 2013 - 14 SHRI SANJAY CHAUDHURY, MC - 4, BADAGADA BRIT COLONY, BHUBANESWAR. VS. ITO, WARD 2(2), BHUBANESWAR. PAN/GIR NO.ABPPC 7689 B (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI SUNIL MISHRA, AR REVENUE BY : SHRI ABHAY CHARAN ROUT , DR DATE OF HEARING : 19 /1/ 2017 DATE OF PRONOUNCEMENT : 19/ 1 / 2017 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 1, BHUBANESWAR, DATED 3.8.2016 , FOR THE ASSESSMENT YEAR 2013 - 14 . 2. IN GROUND NOS.2 & 3 OF THE APPEAL, THE ASSESSEE HAS CHALLENGED THE JURISDICTION OF THE ASSESSING OFFICER TO ISSUE NOTIC E U/S.148 OF THE ACT WHEN TIME FOR ISSUANCE OF NOTICE U/S.143(2) OF THE ACT HAS NOT EXPIRED BEFORE THE ISSUANCE OF NOTICE U/S.148 OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2013 - 2014 ON 18.9.2013. THE CONTENTION OF THE ASSESEE IS 2 ITA NO406/CTK/2016 ASSESSMENT YEAR : 2013 - 14 THAT NOTICE U/S.143(2) OF THE ACT COULD HAVE BEEN SERVED ON THE ASSESSEE WITHIN SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURN ISHED BY THE ASSESSEE. HE SUBMITTED THAT THE RETURN OF INCOME WAS FILED ON 18.9.2013 AND SIX MONTHS FROM THE END OF THE FINANCIAL YEAR EXPIRES ON 30 TH SEPTEMBER, 2014 . THEREFORE, NOTICE U/S.143(2) OF THE ACT COULD HAVE BEEN ISSUED ON THE ASSESSEE ON OR BEFORE 30.9 .14. IN THE INSTANT CASE, NOTICE U/S.148 OF THE ACT WAS ISSUED ON 14.3.14 , WHICH IS MUCH BEFORE THE TIME PERIOD FOR ISSUANCE OF NOTICE U/S.143(2) HAS EXPIRED. THEREFORE, NOTICE ISSUED U/S.148 OF THE ACT WAS BAD IN LAW AND CONSEQUENTLY A SSESSMENT FRAMED IN PURSUANCE TO SUCH NOTICE IS ALSO BAD IN LAW. FOR THIS PROPOSITION, HE RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. QAYALYS SOFTWARE TECHNOLOGIES LTD., (2009) 308 ITR 249 (MAD), WHEREIN, IT WAS HELD THAT TH E TRIBUNAL WAS RIGHT IN COMING TO THE CONCLUSION THAT THE ASSESSING OFFICER WAS BARRED FROM INITIATING REASSESSMENT PROCEEDINGS UNDER SECTION 147 WHEN THE TIME FOR ISSUANCE OF NOTICE UNDER SECTION 143(2) HAD NOT EXPIRED. HE ALSO RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. K.M.PACHAYAPPAN (2008) 304 ITR 264(MAD), WHEREIN ALSO, IT WAS HELD THAT THE ASSESSING OFFICER HAD ISSUED NOTICE UNDER SECTION 148 OF THE ACT WHEN A VALID RETURN WAS FILED AND WAS PENDING. IN SUCH A SITUATIO N THE REVENUE COULD NOT HAVE ISSUED NOTICE FOR THE PURPOSE OF REOPENING UNDER SECTION 147 OF THE ACT. 3 ITA NO406/CTK/2016 ASSESSMENT YEAR : 2013 - 14 4. ON THE OTHER HAND, LD D.R. SUBMITTED THAT NOTICE U/S.148 OF THE ACT ISS UED TO THE ASSESSEE ON 14.3.2014 WAS A VALID NOTICE. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME U/S.139(1) OF THE ACT ON 18.9.2013 . ACCORDING TO PROVISO TO SECTION 143(2) OF THE ACT, AT THE RELEVANT TIME, NO NOTICE U/S.143(2)(II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR, IN WHICH THE RETURN IS FURNISHED. IN THE PRESENT CASE, THE RETURN OF INCOME WAS FURNIS HED BY THE ASSESSEE ON 18 .9.2013 AND, THEREFORE, NOTICE U/S.143(2) (II) OF THE ACT COULD HAVE BEEN ISSUED TO THE ASSESSEE ON OR BEFORE 30.9.2014 . IT IS ALSO NOT IN DISPUTE THAT NOTICE U/S.148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 14.3.2014 , WHICH WAS MUCH PRIOR TO THE EXPIRY O F TIME FOR ISSUING NOTICE U/S.143(2) OF THE ACT. THEREFORE, THE NOTICE ISSUED U/S.148 OF THE ACT IS BAD IN LAW IN VIEW OF THE DECISIONS OF HONBLE MADRAS HIGH COURT QUOTED ABOVE. HENCE, THE REASSESSMENT ORDER PASSED IN PURSUANCE TO THIS NOTICE IS ALSO BA D IN LAW. I, THEREFORE, CANCEL THE R EASSESSMENT ORDER DATED 31.3.2015 PASSED U/S.144 /147 OF THE ACT AND ALLOW THE GROUNDS OF APPEAL OF THE ASSESSEE. 6. AS I HAVE CANCELED THE REASSESSMENT ORDER PASSED U/S.147 OF THE ACT WHILE DECIDING GROUND NOS.2 & 3 OF T HE APPEAL OF THE ASSESSEE, THE OTHER 4 ITA NO406/CTK/2016 ASSESSMENT YEAR : 2013 - 14 GROUNDS OF APPEAL OF THE ASSESSEE ON MERITS OF ADDITION HAVE BECOME INFRUCTUOUS AND HENCE DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCE D IN THE OPEN COURT ON 19/ 1/2017 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 19/1 /2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT : SHRI SANJAY CHAUDHURY, MC - 4, BADAGADA BRIT COLONY, BHUBANESWAR. 2. THE RESPONDENT. ITO, WARD 2(2), BHUBANESWAR. 3. THE CIT(A) - 1, BHUBANESWAR 4. PR. CIT, BHUBANESWAR. 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//