Shri Bhandari Govind A., Pune V. DCIT, Pune, Pune

ITA 448/PUN/2003

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49768 (ITAT-PUNE)
• Duration Of Justice: 8 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 16-04-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEHTA
• Keywords: Assessment record; Block assessment
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI D.KARUNAKARA RAO, AM I.T.A. NO. 447/PN/2003 BLOCK ASSESSMENT YEAR: 1990-91 TO 2000-01 SHRI BHANDARI GOVIND A. S.NO. 29, RENUKA CHAMBERS DHANKAWADI, PUNE-411 043. PAN APPLIED FOR .. APPELLANT VS. DY. CIT CENT. 2(1) PUNE .. RESP ONDENT I.T.A. NO. 448/PN/2003 BLOCK ASSESSMENT YEAR: 1990-91 TO 2000-01 DY. CIT CENT. 2(1) PUNE APPELLANT VS. SHRI BHANDARI GOVIND A. S.NO. 29, RENUKA CHAMBERS DHANKAWADI, PUNE-411 043. PAN APPLIED FOR RESPONDENT ASSESSEE BY: SHRI S.K. MEHTA DEPARTMENT BY: SHRI HARESHWAR SHARMA ORDER PER SHAILNDRA KUMAR YADAV, JM THESE ARE CROSS APPEALS BY THE ASSESSEE AND REVENUE DIRECTED AGAINST THE ORDER OF THE CIT(A)-I PUNE DATED 6-1-2003 FOR THE BLOCK PERIOD 1990-91 TO 2000 -01. 2. IN THIS CASE, THE ASSESSEE IS AN INDIVIDUAL ENGA GED IN THE BUSINESS OF BODY BUILDING OF TRUCKS IN THE N AME ITA NO. 447 AND 448/PN/2003 GOVIND A. BHANDARI BLOCK PERIOD: 1990-91 TO 2000- 01 2 AND STYLE OF RENUKA BODY BUILDERS. THE ASSESSEE IS ALSO IN THE BUSINESS OF HOTEL LINE BEING PROPRIETOR OF R ENUKA GARDEN RESTAURANT. BESIDES, HE IS ALSO A PARTNER IN M/S. RENUKA ENTERPRISES AND ONE OF THE DIRECTORS IN M/S. RENUKA AUTO SERVICES (P) LTD. ALL THESE CONCERNS WE RE SIMULTANEOUSLY SEARCHED ON 24-11-1999 WHICH RESULTE D INTO SEIZURE OF INCRIMINATING DOCUMENTS WHICH SURFA CED EVIDENCES SHOWING TO THE INVESTMENTS IN VARIOUS IMMOVABLE PROPERTIES BY THE ASSESSEE DURING THE BLO CK PERIOD. 3. IN THIS CASE, AS PER THE ASSESSEE, NOTICE U/S 14 3(2) OF THE ACT HAVE NOT BEEN SERVED ON THE ASSESSEE IN RESPECT OF THE BLOCK ASSESSMENT UNDER CONSIDERATION . ACCORDINGLY, UNDER THE PROVISIONS OF RIGHT TO INFORMATION ACT, 2002, THE ASSESSEE ASKED FOR INSPE CTION OF ASSESSMENT RECORDS AND FOR OBTAINING COPIES OF VARIOUS NOTICES ISSUED TO THE ASSESSEE. CONSEQUENTL Y, THE ASSESSING OFFICER GAVE THE DETAILS OF NOTICES I SSUED U/S 142, 142(1), 143(2), 158BFA, 131 AND U/S 158BC OF THE ACT BUT THERE IS NO MENTION OF SERVICE OF SUCH NOTICES ON THE ASSESSEE. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE ARE INCLINED TO REMAND THIS ISSUE TO THE FILE OF THE CIT(A) TO BE ITA NO. 447 AND 448/PN/2003 GOVIND A. BHANDARI BLOCK PERIOD: 1990-91 TO 2000- 01 3 ADJUDICATED AFTER CONSIDERING THE RIVAL STANDS. TH E ISSUE REGARDING PROPER SERVICE OF NOTICE U/S 143(2) OF THE ACT IS VERY FOUNDATION. THE HONBLE SUPREME COURT IN THE CASE OF ASSTT. CIT AND ANOR VS. HOTEL BLUE MOON (2010) 321 ITR 363 (SC) FOUND THAT THE NOTICE U/S 143(2) HAS TO BE ISSUED WITHIN THE PRESCRIBED PERIO D. SUCH AN OMISSION ON THE PART OF THE A.O WOULD HIT T HE VALIDITY OF THE ASSESSMENT MADE AND CANNOT BE CONSTRUED AS A CURABLE PROXIMITY . IN THE INSTANT CASE, SO FAR AS THE ASSESSMENT ORDER IS CONCERNED, IT DOE S NOT PIN POINT THE DATE OF ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. OF COURSE, IT WOULD BE THE ISSUANCE OF NOTICE AND SERVICE THEREOF IN TERMS OF THE PRESCRIBED PROVISIO NS WOULD EMERGE FROM THE RELEVANT RECORDS OF THE A.O. THE EXAMINATION OF SUCH RECORDS, IN OUR OPINION, WOULD FACILITATE PROPER ADJUDICATION OF THE IMPUGNED GROU NDS IN THE LIGHT OF THE AVERMENTS PUT FORTH BY THE ASSE SSEE. SINCE THIS FACTUAL APPRAISAL AND EXAMINATION OF THE RECORDS IS ESSENTIAL IT WOULD BE IN THE FITNESS OF THINGS THAT BOTH THE SIDES ARE ALLOWED APPROPRIATE OPPORTU NITY TO PRESENT THEIR CASES BEFORE THE CIT(A) WHO SHALL THEREAFTER ADJUDICATE THE POINT RAISED BY THE ASSES SEE IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT THE CIT(A) WOULD AFFORD ADEQUATE OPPORTUNITY OF HEARING TO ITA NO. 447 AND 448/PN/2003 GOVIND A. BHANDARI BLOCK PERIOD: 1990-91 TO 2000- 01 4 THE ASSESSEE. SINCE WE HAVE SET ASIDE THE MATTER ON THE PRELIMINARY ISSUE RELATING TO THE VALIDITY OF THE JURISDICTION TO FRAME THE ASSESSMENT BACK TO THE FI LE OF THE CIT(A), THE GROUNDS RAISED BY THE ASSESSEE AND THE REVENUE IN THEIR RESPECTIVE APPEALS RELATING TO TH E MERITS OF THE ADDITIONS ARE NOT ADJUDICATED BY US. ACCORDINGLY, ON THIS ASPECT ALSO THE IMPUGNED ORDER OF THE CIT(A) IS SET ASIDE AND THE GROUNDS RAISED BY BOTH THE PARTIES ARE REMANDED BACK TO THE FILE OF THE CI T(A) WITH DIRECTION TO DECIDE THE SAME AS PER FACT AND L AW AFTER PROVIDING OPPORTUNITY OF HEARING TO BOTH THE PARTIES. 5. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF MAY 2011. SD/- SD/- (D. KARUNAKARA RAO) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE: DATED: 13 TH MAY, 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A) I PUNE 4. THE CIT, - I PUNE 5. THE D.R, A BENCH, PUNE TRUE COPY BY ORDER ITA NO. 447 AND 448/PN/2003 GOVIND A. BHANDARI BLOCK PERIOD: 1990-91 TO 2000- 01 5 ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE