Dhandia Jewellers, Delhi V. ITO, Ward- 30(5), New Delhi

ITA 5628/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4568 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 30-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 143(3); 292BB; 143(2); 147; 148

Judgement Text

1 , , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI !' BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT $ / ITA NO.5628/DEL/2018 % & & / ASSESSMENT YEAR 2008-09 DHANDIA JEWELLERS, C/O KAPIL GOEL ADV F-26/124 SECTOR 7 ROHINI, DELHI PAN-AABFD1767E .......... '( /APPELLANT VS ITO, WARD-30(5), NEW DELHI . )*'( / RESPONDENT '(+,- / APPELLANT BY : SH. KAPIL GOEL, ADVOCATE )*'(+,- / RESPONDENT BY : SH. PRADEEP SINGH GAUTAM, SR. D R +./ / DATE OF HEARING : 14.01.2020 01 +./ / DATE OF PRONOUNCEMENT: 21.02.2020 -2 / ORDER PER SUSHMA CHOWLA, VP THE PRESENT APPEAL FILED BY ASSESSEE IS AGAINST ORD ER OF CIT(A)-10, NEW DELHI DATED 31.07.2018 RELATING TO ASSESSMENT YEAR 2008-09 AGAINST ORDER PASSED UNDER SECTION 143(3)/147 OF THE ACT. 2. THE ASSESSEE, DURING THE COURSE OF HEARING HAS R AISED ADDITIONAL GROUND OF APPEAL WHICH READS AS UNDER:- ITA NO.5628/DEL/2018 2 THAT LD.AO ERRED IN PASSING IMPUGNED ORDER U/S 143 (3)/148 OF THE ACT WITHOUT MANDATORY ISSUE OF JURISDICTIONAL NOTICE U/ S 143(2) OF THE ACT WHEN RETURN IN RESPONSE TO NOTICE U/S 148 IS VALIDL Y FILED ACCORDINGLY ASSESSMENT FRAMED U/S 143(3) AND ORDER OF LD. CIT- APPEALS MAY PLEASE BE QUASHED BEING VOID AB INITIO. 3. THE LEARNED AR FOR THE ASSESSEE POINTS OUT THAT THE ADDITIONAL GROUNDS GOES TO THE ROOT OF JURISDICTION BY THE ASS ESSEE AND DOES NOT REQUIRE ANY ADJUDICATION OF FACTS, HENCE THE SAME B E ADMITTED FOR ADJUDICATION. 4. THE ASSESSEE IS AGGRIEVED BY THE NON ISSUE OF NO TICE OF NOTICE UNDER SECTION 143(2) OF THE ACT, AFTER REOPENING OF THE A SSESSMENT UNDER SECTION 147/148 OF THE ACT. THE ISSUE RAISED VIDE ADDITIONA L GROUNDS OF APPEAL DO NOT REQUIRE ANY INVESTIGATION INTO FACTS, HENCE THE SAME IS ADMITTED FOR ADJUDICATION. 5. THE LEARNED AR FOR ASSESSEE POINTED OUT THAT AFT ER REOPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE ACT, NOTICE UND ER SECTION 148 OF THE ACT WAS ISSUED ON 27.3.2015. THE RETURN OF INCOME W AS FILED ON 25.4.2015. THE ASSESSEE CLAIMS THAT THEREAFTER NO N OTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE. HENCE THE ASSESSMENT FRAMED IN THE CASE WAS BASELESS. 6. THE LEARNED DR FOR THE REVENUE PRODUCES THE ASSE SSMENT RECORD AND ADMITTEDLY NO NOTICE UNDER SECTION 143(2) OF TH E ACT IS AVAILABLE ON RECORD. THE LEARNED DR FOR THE REVENUE PLACES RELIA NCE ON THE DECISION OF HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE O F JOSH BUILDERS & DEVELOPERS (P) LTD. VS. PCIT (2016) 389 ITR 314 (P& H). WHEREIN THE RATIO ITA NO.5628/DEL/2018 3 LAID DOWN WAS THAT NON SERVICE OF NOTICE CANNOT BE CHALLENGED WHEN ASSESSEE PARTICIPATED IN THE ASSESSMENT PROCEEDINGS . 7. THE LEARNED AR FOR THE ASSESSEE ON THE OTHER HAN D RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F COMMISSIONER OF INCOME TAX VS. LAXMAN DAS KHANDELWAL, 417 ITR 325 ( SC) THAT IN THE ABSENCE OF ANY NOTICE ISSUED UNDER SECTION 143(2) O F THE ACT, PROVISIONS OF SECTION 292BB WERE NOT AVAILABLE. THE LEARNED AR FOR THE ASSESSEE PLACED RELIANCE ON THE DECISION OF DELHI BENCH OF T HE TRIBUNAL IN THE CASE OF M/S SOLAR TURBINES INTERNATIONAL CO., VS. ASSTT. DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION, DEHRADUN IN ITA NO.198 5/DEL/2014 & OTHERS ORDER DATED 02.04.2019. 8. ON THE PERUSAL OF THE RECORD AND AFTER HEARING B OTH THE AUTHORIZED REPRESENTATIVES, THE FIRST ISSUE WHICH NEEDS ADJUDI CATION IS THAT IN THE ABSENCE ANY NOTICE ISSUED UNDER SECTION 143(2) OF T HE ACT CAN THE RE- ASSESSMENT PROCEEDINGS BE UPHELD. ADMITTEDLY, IN TH E FACTS OF THE PRESENT CASE, THE PROCEEDINGS WERE REOPENED UNDER S ECTION 147/148 OF THE ACT. THE AO ISSUED NOTICE UNDER SECTION 148 OF THE ACT ON 27.03.2015. IN RESPONSE THERETO, RETURN OF INCOME W AS FILED BY THE ASSESSEE ON 25.04.2015. THE REQUIREMENT OF LAW THER EAFTER IS TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT IN ORDER TO START THE ASSESSMENT PROCEEDINGS AGAINST THE ASSESSEE. 9. HOWEVER, ON PERUSAL OF THE ASSESSMENT RECORDS, I T TRANSPIRES THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED TO THE AS SESSEE. IN SUCH FACTS AND CIRCUMSTANCES, IN THE ABSENCE OF ANY NOTICE BEI NG ISSUED UNDER ITA NO.5628/DEL/2018 4 SECTION 143(2) OF THE ACT, THE ASSESSMENT PROCEEDIN GS INITIATED AGAINST THE ASSESSEE CANNOT STAND IN THE EYES OF LAW. SUCH IS THE PROPOSITION LAID DOWN BY THE HONBLE SUPREME COURT IN COMMISSIONER O F INCOME TAX VS. LAXMAN DAS KHANDELWAL (SUPRA). IN THE TOTAL ABSENCE OF ISSUE OF ANY NOTICE UNDER SECTION 143(2) OF THE ACT EVEN IF THE ASSESSEE HAD PARTICIPATED IN THE ASSESSMENT PROCEEDINGS, NO RESO RT CAN BE MADE TO THE PROVISIONS OF SECTION 292BB OF THE ACT BY THE REVEN UE. ACCORDINGLY, IT IS SO HELD. 10. THE LEARNED DR FOR THE REVENUE ON THE DECISION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT IN JOSH BUILDERS & DE VELOPERS (P) LTD. VS. PCIT (2016) 389 ITR 314 (P&H). THE RATIO OF THE SAID DECISION IS THAT NON SERVICE OF THE NOTICE ISSUED CANNOT BE CHALLENG ED BY THE ASSESSEE WHEN THERE WAS PARTICIPATION DURING ASSESSMENT PROC EEDINGS. 11. WE FIND THAT HONBLE APEX COURT HAS DECIDED THE ISSUE IN COMMISSIONER OF INCOME TAX VS. LAXMAN DAS KHANDELWA L (SUPRA) AND HELD THAT WHERE THERE IS TOTAL ABSENCE OF ISSUE OF NOTICE U/S 143(2) OF THE ACT, THEN THE ASSESSMENT PROCEEDINGS THOUGH PARTICI PATED IN BY THE ASSESSEE, IS INVALID IN LAW. THE SHELTER OF PROVIS ION OF SECTION 292BB OF THE ACT WAS HELD TO BE NOT CORRECT. 12. APPLYING THE SAID RATIO TO THE FACTS OF THE PRE SENT CASE WHEREIN THERE WAS TOTAL ABSENCE OF ISSUE OF NOTICE UNDER SE CTION 143(2) OF THE ACT, THE ASSESSMENT FRAMED IN THE CASE OF THE ASSESSEE I S HELD TO BE INVALID AND BAD IN LAW. THE ADDITIONAL GROUND OF APPEAL RAI SED BY THE ASSESSEE IS ITA NO.5628/DEL/2018 5 THUS ALLOWED. SINCE THE ASSESSMENT PROCEEDINGS HAV E BEEN HELD TO BE INVALID, THERE IS NO NEED TO ADJUDICATE THE ISSUE O N MERITS. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEBRUARY, 2020. SD/- (SUSHMA CHOWLA) !' / VICE PRESIDENT / DATED : 21 ST FEB, 2020 SH/AMIT KUMAR -2+)%.345-4.6 COPY OF THE ORDER IS FORWARDED TO : 1. '( / THE APPELLANT 2. )*'( / THE RESPONDENT 3. 7. 8 9 / THE CIT(A) 4. : 7. / THE PR. CIT 5. 6. 4;<)%.% / DR, ITAT, DELHI <=&>6 GUARD FILE. -2 / BY ORDER , *4.)%. // TRUE COPY // ? @ABC , ASSISTANT REGISTRAR, ITAT, DELHI