Urban Improvement Trust, JODHPUR V. Dy. CIT, JODHPUR

ITA 53/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5214 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 24-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO S . 50 TO 53 / JODH /201 5 (ASST. YEAR S : 200 4 - 0 5 TO 2006 - 07 & 2008 - 09 ) URBAN IMPROV E MENT TRUST, TAKEN OVER BY JDA, NEAR RAILWAY HOSPITAL, JODHPUR . VS. DCIT , CIRCLE - 2, JODHPUR. PAN NO. AAAAU 2527 P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI A R . DEPARTMENT BY : S HRI S.K. MADHUK - DR DATE OF HEARING : 1 4 / 0 3 /201 6 . DATE OF PRONOUNCEMENT : 1 4 / 03 /201 6 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , BIKANER (CAMP AT JODHPUR ) , FOR THE ASSESSMENT YEARS 2004 - 05 TO 2006 - 07 & 2008 - 09 ALL DATED 31 / 12 /201 4 . 2. IN COMMON GROUND NO.2 OF THE APPEAL IN ALL THE ASSESSMENT YEARS OF THE ASSESSEE READS AS UNDER: - THE IMPUGNED ORDERS PASSED BY THE LD. CIT(A) AND BY THE LD. AO UNDER SEC. 147 R.W.S. 144 IS PATENTLY VOID, AS THE INITIATION OF THE PROCEEDINGS UNDER SEC. 147 IS WHOLLY WITHOUT JURISDICTION, PATENTLY INVALID AND VOID AB INITIO. THE PROCEEDINGS UNDER SEC. 147 ARE APPARENTLY ILLEGAL AS NO REASONS JUSTIFYING FORMATION OF BELIEF 2 ITA NO S . 50 - 53 / JODH /201 5 UNDER SEC. 147 WERE RECORDED BY THE LD.AO NOR THERE EXISTED ANY MATERIAL TO JUSTIFY FORMATION OF SUCH BELIEF AS CONTEMPLATED IN SEC. 147. 3 . AT THE TIME OF HEARING BOTH THE PARTIES BE FORE US AGREED THAT SINCE THE ASSESSING OFFICER HAS NOT SUPPLIED THE ASSESSEE WITH THE COPY O F THE REASONS RECORDED FOR ISSUANCE OF NOTICE UNDER SEC. 148 OF THE ACT FOR ASSESSING THE INCOME ESCAPED, THEREFORE, IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F G.K.N DRIVESHAFTS (INDIA) LTD. VS. ITO & OTHERS (259 ITR 19) WHERE THE HON'BLE SUPREME COURT HAD HELD THAT WHEN A NOTICE UNDER SEC. 148 IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICE E IS TO FILE THE RETURN AND , IF HE SO DESIRE S , TO SEEK REASONS FOR ISSUING NOTICE . T HE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME . ON RECEIPT OF REASONS, THE NOTIC E E IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE INSTANT CASE , AS THE REASONS HAVE NOT BEEN GIVEN IN THESE PROCEEDINGS, THE ASSESSING OFFICER HAS TO FIRST GIVE REASONS AND THEN DISPOSE OF THE OBJECTIONS IF ANY RAISED BY THE ASSESSEE BY PASSING A SPE AKING ORDER . THEREFORE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT AFTER SUPPLYING COPIES OF REASONS FOR REOPENING OF THE ASSESSMENT TO THE ASSESSEE. 4 . IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT AFTER SUPPLYING COPY OF REASONS FOR REOPENING OF THE ASSESSMENT AND AFTER ALLOWING REASONABLE AND PRO PER OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN VIEW OF OUR ABOVE FINDING IN GR O UND NO.2 OF THE APPEAL OF THE ASSESSEE, THE OTHER GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN THESE APPEALS ON MERITS OF THE ADDITIONS HAVE BECOME INFRUCTUOUS AND ARE NOT BEING ADJUDICATED UPON BY US. 3 ITA NO S . 50 - 53 / JODH /201 5 6 . IN THE RESULT, ALL THE APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON MONDAY , THE 1 4 TH DAY OF MARCH , 201 6 AT JODHPUR . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER D ATED : 1 4 TH MARCH , 201 6 . VR/ - COPY TO: 1. THE ASSESS E E. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R . 6. GUARD FILE. BY ORDER