ITO, New Delhi V. Sh. Subir Kumar Ghosh, New Delhi

ITA 4288/DEL/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1263 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 11-02-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 17-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY KUMAR ORDE ORD; VIRENDAR CHAUHAN
• Keywords: Opportunity of being heard
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.4288/DEL/2010 4288/DEL/2010 4288/DEL/2010 4288/DEL/2010 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2006 2006 2006 2006- -- -07 0707 07 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -33(1), 33(1), 33(1), 33(1), ROOM NO.205B, C.R.BUILDING, ROOM NO.205B, C.R.BUILDING, ROOM NO.205B, C.R.BUILDING, ROOM NO.205B, C.R.BUILDING, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. SHRI SUBIR KUMAR GHOSH, SHRI SUBIR KUMAR GHOSH, SHRI SUBIR KUMAR GHOSH, SHRI SUBIR KUMAR GHOSH, 13 1313 13- -- -A/21, WEA, KAROL BAGH, A/21, WEA, KAROL BAGH, A/21, WEA, KAROL BAGH, A/21, WEA, KAROL BAGH, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 005. 110 005. 110 005. 110 005. PAN : AAFPG4194C. PAN : AAFPG4194C. PAN : AAFPG4194C. PAN : AAFPG4194C. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUNIL GAUTAM, DR. RESPONDENT BY : SHRI VIRENDAR CHAUHAN, CA AND SHRI SANJAY KUMAR. ORDE ORDE ORDE ORDER R R R PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXVI, NEW DELHI DATED 28 TH JUNE, 2010 FOR THE ASSESSMENT YEAR 2006-07. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LD.CIT(A) HAS ERRED IN QUASHING THE ASSESSM ENT HOLDING THAT THE FIRST NOTICE U/S 143(2) WAS ISSUED ON 12/11/2007 BEYOND THE STATUTORY PERIOD OF 12 MONTHS WHICH EXPIRED ON 31.07.2007, WHEN THE ASSESSMENT OR DER MENTIONS CLEARLY THAT NOTICE UNDER SECTION 143(2) D ATED 29.06.2007 HAS BEEN DULY SERVED ON THE ASSESSEE AND EVEN ANOTHER NOTICE DATED 27.07.2007 U/S 143(2) WAS ISSUED AND SERVED ON THE ASSESSEE. 2. THE LD.CIT(A) HAS ERRED IN QUASHING THE ASSESSME NT HOLDING THAT THE FIRST NOTICE U/S 143(2) WAS ISSUED ON 12.11.2007 BEYOND THE STATUTORY PERIOD OF 12 MONTHS WHICH EXPIRED ON 31.07.2007, WHEN, IN VIEW OF THE PROVISIONS OF SECTION 292BB, IN VIEW OF THE FACTS T HAT THE ASSESSEE HAS NOT RAISED SUCH OBJECTION BEFORE THE COMPLETION OF ASSESSMENT AND HAS APPEARED, INTER AL IA ITA-4288/DEL/2010 2 2.12.2008 IN ASSESSMENT PROCEEDINGS, AND SOUGHT ADJOURNMENT WHICH FACT IS ALSO BROUGHT OUT IN THE ASSESSMENT ORDER, ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDINGS THAT THE NOTICE WA S NOT SERVED ON HIM/NOT SERVED ON HIM IN TIME AND THE ASSESSMENT ORDER ALSO MAKES IT CLEAR THAT NOTICE WE RE SERVED UPON THE ASSESSEE. 3. THE LD.CIT(A) HAS ERRED IN QUASHING THE ASSESSME NT HOLDING THAT CONTRARY TO THE SPECIFIC PROVISIONS OF SECTION 144, THE AO HAD NOT GIVEN OPPORTUNITY TO THE ASSESS EE BY ISSUE OF SHOW CAUSE NOTICE, WHEN, IN THE FACTS OF T HE CASE, NOTICE UNDER SECTION 142(1) HAS ALSO BEEN ISSUED TO THE ASSESSEE AND ACCORDINGLY, THE CONDITION THAT THE BE ST JUDGMENT ASSESSMENT CAN ONLY BE MADE AFTER GIVING T HE ASSESSEE AN OPPORTUNITY OF BEING HEARD WHICH SHALL BE GIVEN BY ISSUE OF NOTICE TO THE ASSESSEE TO SHOW CA USE WHY THE ASSESSMENT SHOULD NOT BE COMPLETED TO THE BEST OF JUDGMENT (AND AN OPPORTUNITY FOR HEARING) SHALL NOT BE NECESSARY SINCE NOTICE UNDER SECTION 142(1) HAS ALR EADY BEEN ISSUED (SECOND PROVISO TO SECTION 144(1) OF TH E ACT AND IN THE FACTS OF THE CASE, NOTICE U/S 142(1) HAV ING ALREADY BEEN ISSUED, THE SAID CONDITION IS NOT APPL ICABLE. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSMENT YE AR UNDER CONSIDERATION IS 2006-07. THE ASSESSEE FILED THE R ETURN OF INCOME ON 29 TH JULY, 2006 AND THE ASSESSMENT WAS COMPLETED UNDER SECTION 144 OF THE INCOME-TAX ACT, 1961 ON 19 TH DECEMBER, 2008. THE LEARNED CIT(A) QUASHED THE ASSESSMENT ON THE GROUND THAT NO TICE UNDER SECTION 143(2) WAS ISSUED ON 12 TH NOVEMBER, 2007 WHICH WAS BEYOND THE STATUTORY PERIOD OF 12 MONTHS WHICH EXPIRED ON 31 ST JULY, 2007. THE RELEVANT FINDING OF THE LEARNED CIT(A) IN THIS REGARD READS AS UNDER:- 5. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND SUBMISSIONS MADE BY THE APPELLANT IN THE MATTER. O N CAREFUL CONSIDERATION, I FIND THAT THE FIRST NOTICE U/S 143(2) WAS ISSUED ON 12.11.2007, WHICH WAS BEYOND THE STAT UTORY PERIOD OF 12 MONTHS WHICH EXPIRED ON 31.7.2007. TH IS FACT WAS ASCERTAINED BY THE APPELLANT ON INSPECTION OF T HE FILE AND WAS CONFIRMED BY THE AO IN THE REMAND REPORT. IN VIEW OF THIS, IT WAS EVIDENT THAT SUCH A NOTICE WAS BEYOND ITA-4288/DEL/2010 3 THE STATUTORY TIME LIMIT AND HENCE, THE PROCEEDINGS INITIATED IN PURSUANCE THEREOF WERE INVALID AB-INIT IO. 4. THE REVENUE, AGGRIEVED WITH THE ORDER OF LEARNED CIT(A), IS IN APPEAL BEFORE US. AT THE TIME OF HEARING BEFORE US , THE LEARNED DR POINTED OUT THAT IN THE ASSESSMENT ORDER, IT IS MEN TIONED THAT NOTICE UNDER SECTION 143(2) WAS ISSUED ON 29 TH JUNE, 2007 WHICH WAS WELL WITHIN THE PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED. HOWEVER, THE LEARNED COUNSEL FOR THE ASSESSEE FURNISHED BEFORE US THE COPY OF THE REMAND REPORT F ROM WHICH IT IS EVIDENT THAT NOTICE UNDER SECTION 143(2) WAS ISSUED ON 12 TH NOVEMBER, 2007. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT IN THE REMAND REPORT DATED 23 RD APRIL, 2010, THE ASSESSING OFFICER INTIMATED THE D ATE- WISE DETAILS OF THE PROCEEDINGS IN THIS CASE WHICH READ AS UNDER:- EXAMINATION OF THE RECORD REVEALS THE FOLLOWING FA CTS: 1) 12/11/07 NOTICE ISSUED U/S 143(2) 2) 27/11/07 NONE ATTENDED 3) 16/01/08 NOTICE ISSUED U/S 142(1)/143(2), NONE ATTENDED 4) 07/07/08 NOTICE U/S 143(2) ISSUED FOR 28/07/08 5) 28/07/08 NONE ATTENDED 6) 17/10/08 NOTICE U/S 143(2) ISSUED FOR 24/10/08 7) 24/10/08 NONE ATTENDED 8) 02/12/08 ATTENDED SH.MANINDRA TIWARI, CA, ASKED TO FILE THE DETAILS, THE CASE ADJOURNED FOR 08/12/ 08 9) 08/12/08 ATTENDED SH.MANINDER TIWARI CA SUBMITT ED THE POA AND ALSO ASKED TO SUBMIT THE FOLLOWING DETAILS: 1. NOTES ON BUSINESS ACTIVITIES 2. DETAIL OF EXP. DEBITED IN P&L ALONGWITH VOUCHER. THE CASE IS ADJOURNED TO 15/12/08 10) 15/12/08 NONE ATTENDED 11) 19/12/08 ORDER PASSED U/S 144 OF THE I.T.ACT. ITA-4288/DEL/2010 4 6. FROM THE ABOVE, IT IS EVIDENT THAT NOTICE UNDER SECTION 143(2) WAS ISSUED ON 12 TH NOVEMBER, 2007 AS MENTIONED BY THE LEARNED CIT(A) IN HIS ORDER. THE REVENUE COULD NOT PRODUCE ANY EVIDENCE FOR ISSUE OF NOTICE UNDER SECTION 143(2) ON 29 TH JUNE, 2007. THE ORDER OF LEARNED CIT(A) IS BASED UPON THE FACTS GIVEN BY THE ASSESSING OFFICER HIMSELF IN THE REMAND REPORT. IN VIEW OF THE ABOVE , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT(A). THE SAME IS SUSTAINED AND THE REVENUES APPEAL IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 15 TH FEBRUARY, 2013. SD/- SD/- ( (( (I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 15.02.2013 VK. COPY FORWARDED TO: - 1. APPELLANT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -33(1), 33(1), 33(1), 33(1), ROOM NO.205B, C.R.BUILDING, NEW DELHI. ROOM NO.205B, C.R.BUILDING, NEW DELHI. ROOM NO.205B, C.R.BUILDING, NEW DELHI. ROOM NO.205B, C.R.BUILDING, NEW DELHI. 2. RESPONDENT : SHRI SUBIR KUMAR GHOSH, SHRI SUBIR KUMAR GHOSH, SHRI SUBIR KUMAR GHOSH, SHRI SUBIR KUMAR GHOSH, 13 1313 13- -- -A/21, WEA, KAROL BAGH, NEW DELHI A/21, WEA, KAROL BAGH, NEW DELHI A/21, WEA, KAROL BAGH, NEW DELHI A/21, WEA, KAROL BAGH, NEW DELHI 110 005. 110 005. 110 005. 110 005. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR