Suresh Govind Karan, Ratnagiri V. Assistant Commissioner of Income-tax,

ITA 476/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6962 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-12-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 16-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 147

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO. 476/PUN/2015 / ASSESSMENT YEAR : 2010-11 SHRI SURESH GOVIND KARAN, 35A, INDIRA NIWAS, BHINGALOLI, MANDANGAD, DIST. RATNAGIRI PAN : BAEPK4431Q . /APPELLANT VS. ACIT, RATNAGIRI CIRCLE, RATNAGIRI . / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI ACHAL SHARMA, ADDL.CIT / DATE OF HEARING : 12.12.2017 / DATE OF PRONOUNCEMENT: 13 .12.2017 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF CIT(A)-1&2, KOLHAPUR DATED 20-01-2015 FOR THE ASSES SMENT YEAR 2010-11. 2. ASSESSEE RAISED 7 GROUNDS IN THE APPEAL. ON PERUSAL OF THE SAME, WE FIND GROUND NOS. 3 AND 4 CONTAINS THE ISSUE RELAT ING TO THE FAILURE OF THE AO IN ISSUING AND SERVING MANDATORY NOTICE U/ S.143(2) OF THE ACT. IN GROUND NO.4 ALSO ASSESSEE RAISED THE ISSU E RELATING TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE APART FROM OTHER ISS UES MENTIONED IN THE GROUNDS. ITA NO.476/PUN/2015 SMT. SURESH GOVIND KARAN 2 3. DESPITE SERVICE OF NOTICE ON THE ASSESSEE BY THE TRIB UNAL, THERE IS NONE TO REPRESENT THE ASSESSEE. THE ACKNOWLEDGEMEN T IS PLACED ON RECORD. ON 09-10-2017 ALSO, THERE WAS NONE TO REPRESE NT THE CASE OF THE ASSESSEE AND THE CASE WAS POSTED FOR HEARING TODA Y. THE SAME IS EVIDENT FROM THE ORDER SHEET. FURTHER, THE ASSESSEE DID NOT MOVE ANY ADJOURNMENT PETITION TOO. WE THEREFORE PROCEED TO DECID E THE ISSUE WITH THE HELP OF THE LD. DR FOR THE REVENUE. 4. BEFORE US, LD. DR FOR THE REVENUE BROUGHT OUR ATTENT ION TO THE FACT THAT ON 26-03-2014 THE ASSESSMENT WAS COMPLETED U/S.144 R.W.S. 147 OF THE INCOME TAX ACT, 1961. THIS IS A CASE WHERE ASSESS EE DID NOT FILE THE RETURN OF INCOME ORIGINALLY. AO HAD TO ISSUE NOTICE U/S.142(1) OF THE ACT. THERE IS NO RESPONSE TO THIS NOTICE FROM THE ASSESSEES SIDE. AO ALSO ISSUED A QUESTIONNAIRE AND THE SHOW CAUSE NOTICE BEFORE COMPLETING THE BEST JUDGMENT ASSESSMENT. CONTENTS OF THE SHOW CAUSE NOTICE ARE GIVEN IN PARA NO.3 OF THE ASSESSMENT ORD ER. EVENTUALLY, THE ASSESSMENT WAS COMPLETED DETERMINING THE TOTAL INCOME AT RS.96,84,652/- AS PER THE DISCUSSION GIVEN IN PA RA NOS. 5 TO 7 OF THE ASSESSMENT ORDER. 5. AGGRIEVED WITH THE ABOVE ORDER OF THE AO, ASSESSEE FILE D AN APPEAL BEFORE THE CIT(A) AND RAISED VARIOUS ISSUES ON MERIT S AS WELL AS THE LEGAL ISSUE RELATING TO THE VALIDITY OF THE REASSESSM ENT PROCEEDINGS MADE AND FAILURE OF THE AO IN ISSUING OF NOTICE U/S.143(2) OF THE ACT. GROUND NO.2 FILED BEFORE THE CIT(A) IS R ELEVANT AND THE SAME READS AS UNDER : 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT IS ALSO VITIATED IN LAW AS NO REASONS HA VE BEEN RECORDED FOR ISSUE OF NOTICE U/S.148 AS MANDATED BY LAW. TH E COPY OF REASONS WERE ALSO NOT FURNISHED TO THE ASSESSEE. THE ASSES SMENT ORDER IS SILENT ON THE MANNER OF RECORDING OF REASONS PRIOR TO ISSUE OF NOTICE U/S.148(2) OF THE ACT. THE AO ALSO FAILED TO ISSUE AND SERVE MANDATORY NOTICE U/S.143(2) OF THE ACT BEFORE PROCE EDING TO ITA NO.476/PUN/2015 SMT. SURESH GOVIND KARAN 3 ASSESSMENT. THE ASSESSMENT BEING ILLEGAL AND WITHO UT JURISDICTION BE ANNULLED. 6. FROM THE ABOVE, IT IS EVIDENT THAT THE SAID GROUND HA S TWO LIMBS (1) RELATING TO FAILURE TO RECORD THE REASONS BEFORE TH E ISSUE OF NOTICE U/S.148 OF THE ACT AND NON-FURNISHING OF THE SAME T O THE ASSESSEE; AND (2) AOS FAILURE TO ISSUE AND SERVE MANDATOR Y SERVICE U/S.143(2) OF THE ACT. 7. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AND PARTLY CONFIRMED THE ADDITIONS MADE BY THE AO. WHEN IT COMES TO THE LEGAL ISSUE RELATING TO NON RECORDING AND NON-FURNISHING OF THE R EASONS, RELEVANT GROUND IS DISMISSED AS PER THE DISCUSSION GIVEN IN PARA NOS. 5 AND 6 OF THE CIT(A)S ORDER. HOWEVER, WHEN IT COMES TO THE SECOND LIMB RELATING TO ISSUE OF NOTICE U/S.143(2) OF THE ACT, THE C IT(A) IS SILENT ABOUT THIS PART OF THE LEGAL ISSUE RAISED BY THE ASS ESSEE IN THE APPEAL VIDE GROUND NO.2 FILED BEFORE HIM. 8. IN THE BACKGROUND FACTS OF THE ABOVE OMISSION AND NO N- SPEAKING ORDER OF THE CIT(A) IN CONNECTION WITH GROUND NO.3 APART FROM OTHERS RAISED BY THE ASSESSEE BEFORE US AND THE FAILURE OF THE CIT(A) IN NOT ADJUDICATING THE LEGAL ISSUE RELATING TO THE S AID ISSUE OF NOTICE U/S.143(2) OF THE ACT ALONG WITH OTHER ISSUES RELAT ING TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, WE FIND THERE IS PRI MA-FACIE NEED FOR REMANDING THE ISSUES TO THE FILE OF THE CIT(A). 9. ON CONSIDERING THE FACT THAT THE HEARING NOTICE WAS P ROPERLY SERVED ON THE ASSESSEE BY THE TRIBUNAL AND ASSESSEE IS AWARE OF HEARING OF THE CASE TODAY BEFORE THE TRIBUNAL, WE ARE O F THE OPINION THAT THE MATTER SHOULD BE ADJUDICATED WITH THE HELP OF T HE LD. DR FOR THE REVENUE. BEFORE US, LD. DR FOR THE REVENUE EXPLAINED THE ABOVE FACTS OF THE CASE AND THE WAY THE REASSESSMENT WAS CO MPLETED AND ITA NO.476/PUN/2015 SMT. SURESH GOVIND KARAN 4 PART RELIEF GRANTED BY THE CIT(A) TO THE ASSESSEE. HOWEV ER, WHEN IT COMES TO THE FAILURE OF THE CIT(A) IN NOT ADJUDICATING THE S AID LEGAL ISSUE RELATING TO ISSUE OF NOTICE U/S.143(2) OF THE ACT, LD. DR FOR THE REVENUE VEHEMENTLY ARGUED STATING THAT THERE IS NO SUCH REQUIR EMENT UNDER THE STATUTE WHEN IT COMES TO THE REASSESSMENT PROCEEDINGS U/S.147 OF THE ACT AND THE ASSESSEES FAILURE TO FILE THE R ETURN OF INCOME AS PER THE PROVISIONS OF SECTION 139(1)/142(1) OF THE ACT. THIS IS THE CASE WHERE ASSESSEE NEVER FILED THE RETURN OF INCO ME AS PER THE STATUTE U/S.139(1) AND IN RESPONSE TO THE NOTICE U/S.142(1 ) OF THE ACT. HOWEVER, THE FACT OF CIT(A) FAILED TO ADJUDICATE THIS P ART OF THE GROUND IS UNDISPUTED. CONSIDERING THE ABOVE OMISSION OF TH E CIT(A) AND ABSENCE OF SPEAKING ORDER ON THE ISSUE RAISED BY TH E ASSESSEE IN THE APPEAL, WE ARE OF THE VIEW THAT ALL THE ISSUES RAISED B OTH LEGAL AS WELL AS ON MERITS SHOULD BE REMANDED TO THE FILE OF CIT(A) FOR WANT OF SPECIFIC ADJUDICATION ON THE ABOVE REFERRED LEGAL ISSUES. C IT(A) SHALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE IN ACCORDANCE WITH SET PRINCIPLES OF NATURAL JUSTICE WHILE RE- ADJUDICATING THE GROUNDS RAISED BY THE ASSESSEE BEFORE HIM. ACCORDIN GLY, ALL THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE S. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF DECEMBER, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 13 TH DECEMBER, 2017. ITA NO.476/PUN/2015 SMT. SURESH GOVIND KARAN 5 / COPY OF THE ORDER FORWARDED TO : BY ORDER // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE THE APPELLANT THE RESPONDENT THE CIT(A) - 1 &2, KOLHAPUR CIT - 1 &2, KOLHAPUR % , , A BENCH PUNE; / GUARD FILE.