ACIT 11(1), MUMBAI V. SHIVENDRA SAMAR SINGH, MUMBAI

ITA 5600/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93161 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 08-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 05-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Validity of assessment; Competent authority
• Section: 143(3); 148

Judgement Text

VIJAY S SONPATKI ITA NO. 5 66 0 /M/201 1 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F , MUMBAI . . , , BEFORE SHRI G S PANNU , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIA L MEMBERITA ITA NO. : 5 66 0 /MUM/20 1 1 ( ASSESSMENT YEAR: 200 0 - 0 1 ) VIJAY S SONPATKI , 202, TULSI VILLA, PLOT NO. 12, POSTAL COLONY, CHEMBUR, MUMBAI - 400 071 .: PAN : AA K PS 8654 A VS ITO - 26(1)(2) , MUMBAI (APPELLANT) (RES PONDENT) APPELLANT BY : SHRI NISHANT THAKKAR RESPONDENT BY : SHRI YOGESH KUMAR /DATE OF HEARING : 14 - 05 - 2015 / DATE OF PRONOUNCEMENT : 08 - 07 - 2015 ORDER PER AMIT SHU KLA , J.M. : THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 23 . 02 .201 1 , PASSED BY CIT(A) - 28 , MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) R.W.S. 147 FOR THE ASSESSMENT YEAR 2000 - 01. 2. IN THE GROUNDS OF APPEAL R EAD WITH ADDITIONAL GROUNDS, THE ASSESSEE HAS CHALLENGED , FIRSTLY THE VALIDITY OF ASSESSMENT PASSED U/S 143(3) R.W.S. 147(B) ON THE GROUND THAT INITIATION OF ASSESSMENT PROCEEDINGS U/S 147 /148 IS BAD IN LAW IN LAW ; SECONDLY, NO NOTICE U/S 143(2) HAS BEEN I SSUED AFTER SERVING THE NOTICE U/S 148 AND BEFORE COMPLETING OF THE ASSESSMENT ; AND L ASTLY, THE MERIT OF ADDITION OF RS. 3,10,000/ - MADE BY THE AO ON ACCOUNT OF DONATION PAID TO RAMRAO ADIK INSTITUTE OF TECHNOLOGY FOR THE ADMISSION OF THE ASSESSEES SON FR OM UNACCOUNTED SOURCES. VIJAY S SONPATKI ITA NO. 5 66 0 /M/201 1 2 3 . AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT HAD OBTAINED INFORMATION UNDER RTI ACT, 2005 FROM THE DEPARTMENT ON 14.01.2013 , TO THE EFFECT THAT FIRSTLY, THERE WAS AN ABSENCE OF NOTICE U/S 143(2) ; SE CONDLY, NO REASONS RECORDED U/S. 14 8 (2) WERE AVAILABLE ON RECORD ; AND LASTLY, THERE IS ABSENCE OF ANY APPROVAL OF ADDITIONAL CIT U/S 151, VIDE ORDER SHEET NOTING DATED 16.01.2015. THE BENCH ALSO GAVE OPPORTUNITY TO THE REVENUE TO VERIFY THE CONTENTS OF THE RTI I NFORMATION, IN THE FOLLOWING MANNER : IN ITA NO. 5660/M/2011 IN THE CASE OF VIJAY S. SONPATKI VS. ITO THE LD. REPRESENTATIVE SUBMITTED THAT IN THIS CASE THE ASSESSEE HAD OBTAINED INFORMATION UNDER RTI ACT, 2005, ON 14.01.2013 TO THE EFFECT THAT T HERE WAS ABSENCE OF NOTICE ISSUED U/S 143(2); REASONS RECORDED U/S 148(2); ABSENCE OF APPROVAL FROM ADDITIONAL CIT U/S 151. THE LD. REPRESENTATIVE POINTED OUT THAT ON THE BASIS OF AFORESAID, ASSESSEE HAS BEEN CONSISTENTLY SUBMITTING THAT THE IMPUGNED ORDER S LACKED JURISDICTION. THE LD. COUNSEL FURTHER SUBMITTED THAT IN THE PAST ON SE VE RAL OCCASIONS, THE DR WAS REQUIRED TO RESPOND BUT THE DEPARTMENT HAS BEEN SEEKING TIME. THE SUBMISSIONS OF THE LD. REPRESENTATIVE WERE BORNE OUT OF THE RECORD AND THE LD. DR F AIRLY CONCEDED BUT PLEADED THAT FURTHER OPPORTUNITY BE ALLOWED TO HIM TO SEEK APPROPRIATE REPORT FROM THE FIELD OFFICE. THE LD. DR WAS GRANTED TIME TILL 14.05.2015 AS A FINAL OPPORTUNITY AND ON FAILURE TO RESPOND IT WAS MADE CLEAR THAT ADVERSE VIEW SHALL B E TAKEN OF THE MATTER. ACCORDINGLY, THE MATTER WAS ADJOURNED FOR 14.05.2015. ABOVE PROCEEDINGS, WERE ANNOUNCED IN THE COURT IN THE PRESENCE OF BOTH THE PARTIES . VIJAY S SONPATKI ITA NO. 5 66 0 /M/201 1 3 4 . THE LD. DR ON THE BASIS OF LETTER GIVEN BY THE ITO ADMITTED THAT THE INFORMATION GIVEN I N TH E ORDER U/S 7(1) OF RIGHT TO INFORMATION ACT IS CORRECT IN SO FAR AS THESE DOCUMENTS ARE NOT AVAILABLE IN THE CASE RECORDS. THE LD. DR IN SUPPORT HAS ALSO FILED THE COPY OF THE LETTER FILED BY THE AO WHEREIN, HE HAS SUBMITTED THAT ALREADY INFORMATION UND ER RTI HAS BEEN GIVEN THAT THE SAID DOCUMENTS ARE NOT AVAILABLE IN THE CASE RECORDS. 5 . NOW IN WAKE OF THIS ADMITTED POSITION THAT THERE IS NO REASONS RECORDED WHICH IS A MANDATORY REQUIREMENT U/S 148(2) BEFORE ISSUING THE NOTICE U/S 148 AND NEITHER THE RE IS ANY APPROVAL FROM THE A DDITIONAL CIT FOR ISSUING THE NOTICE U/S 148 AS REQUIRED U/S 151, THE ENTIRE INITIATION OF REOPENING U/S 147 VIDE NOTICE DATED 16.3.2007 U/S 148 IS BAD IN LAW AS IT LACKS JURISDICTION TO REOPEN THE CASE . EVEN IN THE IMPUGNED AS SESSMENT ORDER THERE IS NOT WHISPER ABOUT THE REASONS RECORDED AND ALSO THE APPROVAL BY THE COMPETENT AUTHORITY. ACCORDINGLY, THE ASSESSMENT ORDER DATED 31.12.2007 PASSED U/S 143(3) R.W.S. 147 IS QUASHED AS NULL AND VOID , BEING WITHOUT JURISDICTION. ACCO RDINGLY, THE GROUNDS OF APPEAL FILED BY THE ASSESSEE ARE TREATED AS ALLOWED. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JULY , 2015. SD/ - SD/ - ( . . ) ( ) ( G S PANNU ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 8 TH JU LY , 2015 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 28 , MUMBAI 4 ) THE CIT 26 , MUMBAI . VIJAY S SONPATKI ITA NO. 5 66 0 /M/201 1 4 5 ) , , / THE D.R. F BENCH, MUMBAI. 6 ) COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS