ITO, UDAIPUR V. Shri Sajjan Singh Chouhan, UDAIPUR

ITA 491/JODH/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5258 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 29-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Section: 148

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE: SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO.491 AND 492/JODH/2014 ASSESSMENT YEAR: 2010-11 THE INCOME TAX OFFICER, WARD 1(1), 6, NEW FATEHPURA, UDAIPUR, RAJASTHAN VS. SHRI. SAJJAN SINGH CHOUHAN, S/O. SHRI. HAMER SINGH CHOUHAN, VILL.BAMBORA, TEHSIL. GIRWA, UDAIPUR, PAN :AEYPC8957J APPELLANT RESPONDENT APPELLANT BY SHRI S. L. MOURYA, D.R. RESPONDENT BY NONE DATE OF HEARING: 08.03.2016 DATE OF PRONOUNCEMENT: 08.03.16 O R D E R PER: GEORGE MATHAN, J.M. : THE APPEAL IN ITA NO.491/JODH/2014 IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT (A), UDAIPUR DATED 22- 07-2014 PASSED IN APPEAL NO. 267/IT/UDR/2013-14 FOR ASSESSMENT YEAR 2010-11 AGAINST QUASHING THE RE-ASSESSMENT INITIATED U/S147 OF THE IT ACT AND I TA NO.492/JODH/2014 IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARN ED CIT (A), UDAIPUR DATED 22.07.2014 IN APPEAL NO.258/IT/UDR/2013-14 FOR ASSE SSMENT YEAR 2010 AGAINST CANCELLATION OF PENALTY U/S 271 (1) (C) OF THE IT ACT. 2 ITA NO.491 & 492/JODH/2014 2. NONE APPEARED ON BEHALF OF THE ASSESSEE AND MR. S. L. MOURYA REPRESENTED ON BEHALF OF THE REVENUE. 3. IN ITA NO.491/JODH/2014, THE REVENUE HAS CHALLEN GED THE ACTION OF THE LEARNED CIT(A) IN QUASHING THE RE-ASSESSMENT PR OCEEDINGS ON THE GROUND THAT NOTICE U/S148 OF THE ACT WAS NOT SERVED ON THE ASSESSEE. IT WAS A SUBMISSION THAT IN GROUND NO.2 THE REVENUE HAS CH ALLENGED THE ACTION OF THE LEARNED CIT (A) IN DELETING THE ADDITION ON MER ITS. IT WAS A SUBMISSION THAT THE NOTICE U/S 148 OF THE ACT WAS ISSUED ON 19 -03-2013 AT THE ASSESSEES ADDRESS BUT THE SAME WAS RETURNED. SUBSE QUENTLY, ON 11-02- 2013 A SHOW-CAUSE NOTICE ISSUED BY THE ASSESSING OF FICER WAS ALSO RETURNED. IT WAS A SUBMISSION THAT EVEN THE ASSESSM ENT ORDER WHICH WAS SENT BY REGISTERED POST ON 05-03-2013 ALSO RETURNED BACK ON THE GROUND THAT THE RECEIVER IS OUT OF STATION. IT WAS SUBSEQUENTLY ON 29-10-2013 THAT THE ASSESSMENT ORDER ITSELF WAS MANUALLY SERVED. IT WAS A SUBMISSION THAT THE NOTICE U/S 148 OF THE ACT HAD BEEN ISSUED WELL WITH IN TIME, THE ORDER OF THE LEARNED CIT (A) QUASHING THE RE-ASSESSMENT WAS LIAB LE TO BE QUASHED. HE VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. 4. WE HAVE CONSIDERED THE SUBMISSION OF THE LEARNED D.R. ON PERUSAL OF THE PROVISIONS OF SECTION 148 OF THE ACT CLEARLY SH OWS THAT THE WORD USED IS SERVED AND IT IS NOT ISSUED. CONSEQUENTLY, THE SERVICE OF THE NOTICE U/S 148 OF THE ACT IS ONE OF THE MAIN CRITERIONS FOR A PROP ER RE-ASSESSMENT TO BE DONE WITH THE CORRECT JURISDICTION. IN THE PRESENT CASE, ADMITTEDLY, NOTICE U/S 148 OF 3 ITA NO.491 & 492/JODH/2014 THE ACT WAS ISSUED ON 19.03.2012 BUT HAS NOT BEEN S ERVED ON THE ASSESSEE. METHODOLOGY FOR SERVICE OF NOTICE IS PRESCRIBED IN THE INCOME TAX ACT IN SECTION 282 AND EVEN IN SECTION 282(1) OF THE ACT T HE WORD USED IS DELIVERED. JUST BY TRANSMITTING COPY THEREOF WOUL D NOT BE DEEMED SERVICE, ESPECIALLY WHEN SUCH NOTICE IS RETURNED BACK BY THE POSTAL AUTHORITY, IN ANY CASE, THE ASSESSING OFFICER HAS MANAGED TO SERVE TH E ASSESSMENT ORDER SUBSEQUENTLY AND IT WAS AT THE ASSESSEES ADDRESS PROVIDED. IN THE CIRCUMSTANCES, AS IT IS NOTICED THAT THE ASSESSING OFFICER HIMSELF ADMITTED THAT THE NOTICE U/S148 OF THE ACT HAS NOT BEEN SERV ED UPON THE ASSESSEE AND HAS BEEN RETURNED BACK, WE ARE OF THE OPINION THAT THE FINDING OF THE LEARNED CIT (A) IN QUASHING THE RE-ASSESSMENT ON ACCOUNT OF NON-SERVICE OF NOTICE U/S 148 OF THE ACT IS ON RIGHT FOOTING AND DOES NOT CALL FOR OUR INTERFERENCE. CONSEQUENTLY, THE APPEAL OF THE REVENUE IN ITA NO.4 91/JODH/2014 STANDS DISMISSED. 5. AS THE RE-ASSESSMENT ITSELF HAS BEEN QUASHED AND THE SAME HAS BEEN UPHELD BY US IN ITA NO.491/JODH/2014 ((SUPRA)), THE PENALTY LEVIED U/S 271 (1) (C) OF THE ACT ON THE ASSESSEE WOULD NO MORE SU RVIVE. CANCELLATION OF PENALTY BY THE LEARNED CIT (A) WHICH HAS BEEN CHALL ENGED BY THE REVENUE IN ITA NO.492/JODH/2014 IS ALSO DISMISSED AND THE FIND ING OF THE LEARNED CIT (A) CANCELLING THE PENALTY LEVIED U/S 271 (1) (C) S TANDS UPHELD. 4 ITA NO.491 & 492/JODH/2014 6. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE ST ANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.03.2016. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, DATED: 08 TH MARCH, 2016 LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1 . THE APPELLANT 2. THE RESPONDENT 3. CIT CONCERNED 4. CIT (A) CONCERNED 5. DR, ITAT, JODHPUR 6. GUARD FILE BY ORDER, SR. PRIVATE SECRETARY DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 08.03.16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 08.03.16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 08.03.16 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 08.03. 16 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 09.03.16 SR.PS 6. DATE OF PRONOUNCEMENT NA SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER