SHARIFABAI MOHD. YUSUF MEMON, MUMBAI V. ITO 13(1)(4), MUMBAI

ITA 5480/MUM/2011

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7130 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 12-02-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 25-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Assessment record
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI JOGINDER SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 5480/MUM/2011 ASSESSMENT YEAR: 2006 - 07 SHARIFABAI MODH. YUSUF MEMON 501/502, A1 KHATIJA APARTMENTS, 366 SANE GURUJI MARG, AGRIPADA, MUMBAI - 400011 VS. INCOME TAX OFFICER - 13(1)(4) MUMBAI PAN NO. AANPI8393M APPELLANT RESPONDENT ASSESSEE BY : MR. DEEPAK TRALSHAWALA, AR REVENUE BY : MR. V. JUSTIN, DR DATE OF HEARING : 2 8 /05/2018 DATE OF PRONOUNCEMENT : 31/05/2018 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2006 - 07. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS) - 24, MUMBAI [IN SHORT CIT(A)]AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). 2. WE FIND THAT HEARING TOOK PLACE BEFORE THE TRIBUNAL ON 10.02.2016 AND 25.07.2017 ALSO. AS PER THE ORDER SHEET NOTING DATED 10.02.2016, THE BENCH DIRECTED THE LD. DR TO PRODUCE THE RECORD INCLUDING PROOF OF SERVICE OF NOTICE U/S 143(2) OF THE ACT. AGAIN WHEN THE HEARING TOOK PLACE ON 25.07.2017, IT WAS SEEN THAT IN SPITE OF SHARIFABAI MODH. YUSUF ITA NO. 5480/MUM/2011 2 DIRECTION OF THE BENCH, THE L D. DR COULD NOT PRODUCE THE ASSESSMENT RECORD AND SOUGHT FURTHER TIME. CONSIDERING HIS REQUEST, A LAST OPPORTUNITY WAS GIVEN TO THE LD. DR TO PRODUCE THE SAID ASSESSMENT RECORD. THE HEARING TOOK PLACE ON 28.05.2018, BUT THE LD. DR EXPRESSED HIS INABILITY T O PRODUCE THE ASSESSMENT RECORD ALONG WITH PROOF OF SERVICE OF NOTICE U/S 143(2) AND SUBMITTED THAT THE CASE MAY BE DECIDED ON MERIT. 3. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE APPELLANT HAS NOT BEEN SERVED WITH NOTICE U/S 143( 2), WHICH HAS BEEN MENTIONED WRONGLY BY THE ASSESSING OFFICER (AO) AS ISSUED ON 31.07.2017 AND DULY SERVED ON THE ASSESSEE AT PARA 2 OF THE ASSESSMENT ORDER DATED 29.12.2008. THE LD. COUNSEL SUBMITS THAT THE APPELLANT HAD SOUGHT INFORMATION VIDE APPLICATION DATED 11.09.2015 UNDER THE RIGHT TO INFORMATION ACT ON (I) DATE OF SERVICE OF NOTICE ISSUED U/S 143(2) AND 142(1) FOR THE ASSESSMENT YEAR 2006 - 07 AND (II) PHOTOCOPIES OF SERVICES OF THE ABOVE NOTICES. IN RESPONSE TO IT, THE APPELLANT RECEIVED A REPLY DATED 13.10.2015 FROM THE INCOME TAX OFFICER - 17(3)(3) AND CENTRAL PUBLIC INFORMATION OFFICER, MUMBAI STATING: 3. IN THIS CONNECTION, I HAVE TO STATE THAT THE INFORMATION SOUGHT PERTAINS TO AY 2006 - 07. THE CASE WAS ASSESSED IN THE CHARGE OF CIT - 13, MUMBAI (ERSTWHILE). VIDE BOARDS ORDER DATED 15.11.2014 RESTRUCTURING OF THE I.T. DEPARTMENT TOOK PLACE WHERE CIT - 12 AND CIT - 13, CHARGES WERE MERGED TOGETHER AND FORMED A NEW CITY I.E. PR. CIT - 17, MUMBAI. HENCE, THE WHEREABOUTS OF THE SAID RECORDS IS BEIN G LOCATED AND ON RECEIPT OF THE SAME, THE REQUIRED INFORMATION WOULD BE SUPPLIED TO THE APPLICANT. SHARIFABAI MODH. YUSUF ITA NO. 5480/MUM/2011 3 THE LD. COUNSEL FURTHER SUBMITS THAT THE APPELLANT AGAIN REMINDED THE JOINT COMMISSIONER OF INCOME TAX, RANGE 17(3), MUMBAI REQUESTING HIM TO FURNISH THE A BOVE INFORMATION SO THAT THE SAME COULD BE FILED BEFORE THE ITAT. HOWEVER, THE APPELLANT HAS NOT YET RECEIVED INFORMATION ON THE DATE OF SERVICE OF NOTICES U/S 143(2) AND 142(1) FOR THE IMPUGNED ASSESSMENT YEAR FROM THE ABOVE AUTHORITY. ALSO THE LD. COUN SEL RELIES ON THE DECISION IN CIT V. CEBON INDIA LTD . (2012) 347 ITR 583 (P&H) AND ACIT V. HOTEL BLUE MOON (2010) 321 ITR 362 (SC). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE ISSUE HERE IS THE SERVICE OF NOTIC E U/S 143(2) AS MENTIONED AT PARA 2 OF THE ASSESSMENT ORDER DATED 29.12.2008 PASSED BY THE AO. AS MENTIONED HEREINBEFORE , THE BENCH DIRECTED THE LD. DR TO PRODUCE THE ASSESSMENT RECORD INCLUDING PROOF OF SERVICE OF NOTICE U/S 143(2) OF THE ACT. THE LD. DR FAILED TO PRODUCE IT AS MENTIONED EARLIER. ALSO THE CENTRAL PUBLIC INFORMATION OFFICER, MUMBAI FAILED TO GIVE THE ABOVE INFORMATION TO THE APPELLANT UNDER THE RIGHT TO INFORMATION ACT, 2005. IN HOTEL BLUE MOON (SUPRA), THE HONBLE SUPREME COURT HAS HELD INTER ALIA THAT (I) THE ASSESSING OFFICER MUST NECESSARILY ISSUE NOTICE U/S 143(2) OF THE ACT WITHIN THE TIME PRESCRIBED I N THE PROVISO TO SECTION 143(2), (II) OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE U/S 143(2) CANNOT BE A PROCEDURA L IRREGULARITY AND IS NOT CURABLE, AND THE REQUIREMENT OF NOTICE U/S 143(2) CANNOT BE DISPENSED WITH. SHARIFABAI MODH. YUSUF ITA NO. 5480/MUM/2011 4 IN CEBON INDIA LTD . (SUPRA), THE HONBLE PUNJAB AND HARYANA HIGH COURT HAS HELD THAT ABSENCE OF NOTICE U/S 143(2) IS NOT CURABLE U/S 292BB OF THE ACT. IN THE INSTANT CASE, THE LD. DR FAILED TO PRODUCE THE RELEVANT RECORD INCLUDING PROOF OF SERVICE OF NOTICE U/S 143(2) THOUGH SPECIFICALLY ASKED BY THE TRIBUNAL ON 10.02.2016 AND 25.07.2017. ALSO THE CENTRAL PUBLIC INFORMATION OFFICER, MUMBAI COULD NOT GIV E INFORMATION REGARDING DATE OF SERVICE OF NOTICE U/S 143(2) FOR THE AY 2006 - 07 UNDER THE RIGHT TO INFORMATION ACT, 2005 TO THE APPELLANT. IN VIEW OF THE FACTUAL SCENARIO, WE FOLLOW THE RATIO LAID DOWN IN HOTEL BLUE MOON (SUPRA) AND CEBON INDIA LTD . (SUPR A) AND SET ASIDE THE ORDER OF THE LD. CIT(A). 5 . IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/05/2018 . SD/ - SD/ - (JOGINDER SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 31/05/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI