Smt. Nina T.Sepai, Ahmedabad V. The Income tax Officer,Ward-10(3), Ahmedabad

ITA 564/AHD/2010

• Counselvise Citation: 56420514 RSA 2010
• Duration Of Justice: 3 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 19-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Assessee Lawyers: TUSHAR HEMANI

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . . . . , , , , ! ! ! ! ' #$ ' #$ ' #$ ' #$ , , , , % % % % BEFORE S/SHRI N.S. SAINI, ACCOUNTANT MEMBER AND KUL BHARAT, JUDICIAL MEMBER) ITA NO.564/AHD/2010 [ASSTT.YEAR : 2006-2007] SMT. NINA T. SEPAI C/O. SAMIR A. SHAH RAMANLAL G. SHAH & CO. 4 TH FLOOR, SHREEJI HOUSE B/H. M.J. LIBRARY, ELLISBRIDGE PAN : ABJPS 1447 H /VS. THE ITO, WARD-10(3) AHMEDABAD. ( (( ('( '( '( '( / APPELLANT) ( (( ()*'( )*'( )*'( )*'( / RESPONDENT) +$ , - / ASSESSEE BY : SHRI TUSHAR HEMANI / , - / REVENUE BY : SHRI K.C. MATHEWS, SR.DR '0 , $1/ DATE OF HEARING : 21 ST NOVEMBER, 2013 234 , $1/ DATE OF PRONOUNCEMENT : 29-11-2013 5 / O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT( A)-XVI, AHMEDABAD DATED 15.12.2009. 2. THE FIRST GROUND OF APPEAL OF THE ASSESSEE TAKEN IN THIS APPEAL IS THAT THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS OF THE ITA NO.564/AHD/2010 -2- CASE BY CONFIRMING THE ACTION OF AO IN FRAMING ASSE SSMENT U/S.143(3) OF THE ACT EVEN THOUGH AS A MATTER OF FA CT NOTICE U/S.143(2) HAS BEEN SERVED ON THE ASSESSEE AFTER TH E EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH TH E RETURN IS FURNISHED, AND THEREFORE, ENTIRE ASSESSMENT IS REQU IRED TO BE QUASHED AND TREATED AS NULL AND VOID. 3. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 23.4.2007 AND NOTICE UNDER SECTION 143(2) IN RESPECT OF THE SAID RETURN OF INCOME WAS SERVED UPON THE AS SESSEE ON 24.7.2008. THE CONTENTION OF THE ASSESSEE IS THAT THE NOTICE BEING SERVED AFTER EXPIRY OF 12 MONTHS FROM THE END OF MO NTH IN WHICH THE RETURN OF INCOME WAS FILED, IS BARRED BY LIMITA TION AND THE PROVISION TO PROVISO OF SECTION 143(2), WHICH BEING EFFECTIVE FROM 1.4.2008, WILL BE APPLICABLE FOR THE ASSESSMEN T YEAR 2008- 2009 AND SUBSEQUENT YEARS ONLY, AS THESE PROVISIONS ARE ON JURISDICTIONAL ISSUE. THE ASSESSEE RELIED UPON THE DECISION OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF SHRI BIPIN KISHORE TONDON VS. ITO, ITA NO.2487/AHD/2010 DATED 13.5.2011 AND OF THE HONBLE ALLAHABAD HIGH COURT I N THE CASE OF TULSI FOOD PRODUCTS VS. DCIT (MISC.BENCH NO.3505 OF 2009 DATED 3.4.2012. 4. ON THE OTHER HAND, THE LEARNED DR CONTENDED THAT THE AMENDMENT IN PROVISION OF PROVISO TO SECTION 143(2) WILL BE ITA NO.564/AHD/2010 -3- APPLICABLE IN THE INSTANT CASE AS THE ASSESSMENT PR OCEEDINGS WERE PENDING ON 1.4.2008. HE RELIED UPON THE DECISION O F THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF AMARJIT SINGH TUT. V. UNION OF INDIA, 347 ITR 585 (P&H). 5. WE FIND THAT THE DECISION OF THE ALLAHABAD HIGH COURT SUPPORTS THE CASE OF THE ASSESSEE, WHEREAS, THE DEC ISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT SUPPORTS THE CA SE OF THE REVENUE. THE HONBLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS VEGETABLE PRODUCTS LT D., 88 ITR 192 (SC) HAS HELD THAT WHEN THE DECISIONS OF TWO HI GH COURTS ARE CONFLICTING AND NONE OF THE HIGH COURTS IS JURISDIC TIONAL HIGH COURT, THEN THE DECISION IN FAVOUR OF THE ASSESSEE SHOULD BE FOLLOWED. WE, THEREFORE, FOLLOWING THE DECISION O F THE ALLAHABAD HIGH COURT IN THE CASE OF TULSI FOOD PROD UCTS (SUPRA) DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE, ALLOW T HE GROUND OF THE APPEAL OF THE ASSESSEE, AND CONSEQUENTLY, SET SIDE THE ORDER OF THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE AFORESA ID NOTICE, WHICH IS BARRED BY LIMITATION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( ' #$ ' #$ ' #$ ' #$ /KUL BHARAT /JUDICIAL MEMBER . .. . . . . . /N.S. SAINI /ACCOUNTANT MEMBER