Smt B.M.Dignum, Lucknow V. Income Tax Officer-2(2), Lucknow

ITA 497/LKW/2012

• Counselvise Citation: 49723714 RSA 2012
• Duration Of Justice: 2 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-01-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 14-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reassessment proceedings
• Section: 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.497/LKW/2012 ASSESSMENT YEAR:2004 - 05 INCOME TAX OFFICER - 2(2), LUCKNOW. VS SMT. B. M. DIGNUM, C/O S. D. SETH, ADVOCATE, 90 - PIRPUR SQUARE, NARHI, LUCKNOW. PAN:ABLPD5605J (RESPONDENT) (APPELLANT) SHRI S. K. GARG, ADVOCATE APPELLANT BY SHRI AMIT NIGAM, D. R. RESPONDENT BY 07/01/2015 DATE OF HEARING 13 /02/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, LUCKNOW DATED 88/06/2012 FOR THE ASSESSMENT YEAR 2004 - 2005. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT IN THE FACTS AND LEGAL ASPECTS OF THE CASE THE REASSESSMENT PROCEEDINGS INITIATED U/S 147 IS BAD IN LAW. 2. THAT WITHOUT PROPER SERVICE OF NOTICE U/S 148 THE ORDER PASSED IS BAD IN LAW. 3. WITHOUT ISSUING NOTICE U/S 143 ( 2) ORDER PASSED U/S 143 IS BAD IN LAW. 4. THAT IN VIEW OF EXISTENCE OF ALL MATERIAL ON RECORD ISSUE OF IMPUNGED NOTICE WAS CASE OF SECOND THOUGHT ON SAME MATERIAL ON RECORD, THEREFORE, LIABLE TO BE QUASHED. 2 5. THAT NOTICE SERVED BY AFFIXTURE WITHOUT FOLLOWING THE PRESC RIBED PROCEDURES IS BAD IN LAW AND ORDER PASSED THEREON IS AB - INITIO ILLEGAL. 6. THAT IN THE FACTS OF THE CASE THE PROPERTY WAS SOLD ON THE PREVAILING MARKET VALUE HENCE ADDITION MADE IS BAD IN LAW. 7. THAT THE ORDER PASSED IS AGAINST THE MERIT, CIRCUMSTANCES AND LEGAL ASPECTS OF THE CASE. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT NOTICE U/S 148 IS SAID TO BE SERVED ON THE ASSESSEE BY AFFIXTURE ON THE SOLD OUT PROPERTY AND THEREFORE, IT CANNOT BE SAID THAT THIS IS VALID SERVICE OF NOTICE. HE ALSO SUBMITTED THAT SERVICE OF NOTICE U/S 143(2) IS ON THE LEARNED A.R. OF THE ASSESSEE OF THE ASSESSEE, WHICH IS ALSO NOT A VALID SERVICE OF NOTICE. IN SUPPORT OF THIS CONTENTION, RELIANCE WAS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS : ( I ) HON'BLE ALLAHABAD HIGH COURT JUDGMENT RENDERED IN THE CASE OF LAXMI NARAIN ANAND PRAKASH VS. COMMISSIONER OF SALES TAX [1980] 46 STC 71 ( II ) CIT VS. SHITAL PRASAD KHARAG PRASAD [2006] 280 ITR 541 (ALL) ( III ) HARSINGAR GUTKHA PVT. LTD. VS. CIT [2011] 336 ITR 90 (ALL) 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE COPY OF NOTICE ISSUED BY THE ASSESSING OFFICER U/S 148 IS AVAILABLE ON PAGE NO. 29 OF THE PAPER BOOK AND TH E REPORT OF THE INCOME - TAX INSPECTOR DATED 18/07/2006 REGARDING SERVICE OF NOTICE U/S 148 DATED 06/07/2006 BY AFFIXTURE IS AVAILABLE ON PAGE NO. 30 OF THE PAPER BOOK. IN BOTH THESE DOCUMENTS I.E. NOTICE U/S 148 AND THE REPORT OF THE INCOME TAX INSPECTOR, THE ADDRESS MENTIONED IS 3 R.F. BAHADUR JI MARG, LUCKNOW. AS PER PAGE NO. 3 OF THE ASSESSMENT ORDER ALSO, THE DISPUTE IS REGARDING SALE OF RESIDENTIAL HOUSE AT 3 R.F. BAHADUR JI MARG, LUCKNOW AND HENCE, THIS CONTENTION OF LEARNED A.R. OF THE ASSESSEE IS C ORRECT THAT NOTICE U/S 148 HAS BEEN SERVED BY ASSESSING OFFICER BY WAY OF 3 AFFIXTURE ON THE SOLD OUT PROPERTY. WHEN THE ASSESSING OFFICER IS AWARE THAT THE PROPERTY, ON WHICH HE IS SERVING THE NOTICE BY AFFIXTURE, HAS ALREADY BEEN SOLD OUT BY THE ASSESSEE, HOW SUCH SERVICE OF NOTICE BY WAY OF AFFIXTURE ON THE SOLD OUT PROPERTY CAN BE CONSIDERED AS VALID NOTICE. THIS WAS THE ARGUMENT OF LEARNED D.R. OF THE REVENUE THAT ONLY THIS ADDRESS WAS AVAILABLE WITH THE ASSESSING OFFICER ON RECORD . I T MAY BE TRUE BUT EVEN IN SUCH A SITUATION, THERE ARE OTHER PERMISSIBLE MODE OF SERVICE OF NOTICE AVAILABLE, SUCH AS BY WAY OF PUBLICATION ETC. THE ASSESSING OFFICER HAS NOT RESORTED TO SUCH PROPER MODE OF SERVICE OF NOTICE TO THE ASSESSEE IN THE FACTS OF THE PRESENT CASE AND THEREFORE, WE FIND FORCE IN THE SUBMISSIONS OF LEARNED A.R. OF THE ASSESSEE THAT THE NOTICE U/S 148 WAS NOT VALIDLY SERVED ON THE ASSESSEE AND THEREFORE, THE ASSESSMENT ORDER FRAMED BY THE ASSESSING OFFICER IS VOID AB INITIO. HENCE, WE HOLD THAT IN TH E FACTS OF THE PRESENT CASE, THERE WAS NO VALID SERVICE OF NOTICE ON THE ASSESSEE U/S 148 AND THEREFORE, THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER IS VOID AB INITIO AND WE QUASH THE SAME. 6. IN VIEW OF OUR DECISION AS PER ABOVE PARA, THE OTHER GROUND S RAISED BY THE ASSESSEE DO NOT CALL FOR ANY ADJUDICATION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13 /02/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR