ITO 2(2)(3) , MUMBAI V. NAVSTAR METALS PVT. LTD., MUMBAI

ITA 5874/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6996 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 14-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHARTI SINGH
• Keywords: Assessment record
• Section: 148

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , JM & HONBLE SH. G. MANJUNATHA, A M ./ I.T.A. NO . 5874 /MUM/2017 ( / ASSESSMENT YEAR: 20 09 - 10 ) ITO 2(2)(3), 5 TH FLOOR, ROOM NO. 542, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 / VS. M/S NAVSTAR METALS PVT. LTD. C/O - D. C. BOTHRA & CO. (CA), 297, TARDEO ROAD, 1 ST FLOOR, WILLIE MANSION, MUMBAI - 400007 ./ ./ PAN NO. AA B CN4990Q ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : MS. BHARTI SINGH , DR / RESPONDENTBY : SHR I RAJ KUMAR SINGH , AR / DATE OF HEARING : 07 .01 .201 9 / DATE OF PRONOUNCEMENT : 08.01.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX (APPEALS) - 5, MUMBAI, DATED 08.06 .17 FOR AY 2009 - 10 . 2 I.T.A. NO. 5874 / MUM/201 7 M/S NAVSTAR METALS PVT. LTD. 2 . THE ONLY GROUND RAISED IN THE PRESENT APPEAL FILED BY THE REVENUE IS CHALLENGING THE ORDER OF LD. CIT(A) IN QUASHING THE ASSESSMENT ON THE GROUND THAT STATUTORY NOTICE U/S 143(2) OF THE I.T. ACT WAS NOT ISSUED /SERVED BEFORE COMPLETION OF RE - ASSESSMENT PRO CEEDING UNDER THE I.T. ACT. 3 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD, JUDGMENT CITED BY THE PARTIES AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND FROM THE RECORDS T HAT LD. CIT(A) HAS CATEGORICALLY DEALT WITH THIS OBJECTION IN PARA NO. 11 OF ITS ORDER WHEREIN THE ASSESSMENT RECORDS WERE CALLED FROM THE AO AND AFTER VERIFYING THE SAME, IT WAS SPECIFICALLY NOTICED BY LD. CIT(A) THAT NO NOTICE WAS ISSUED U/S 143(2) AFTER ISSUING THE RE - OPENING NOTICE U/S 148 OF THE ACT. IN THIS ASPECT, WE CONCUR WITH THE FINDINGS RECORDED BY LD. CIT(A) AS WELL AS JUDICIAL PRONOUNCEMENTS TO THE EFFECT THAT ISSUANCE OF NOTICE U/S 143(2) IS MANDATORY AND NOT MERELY PROCEDURAL AND IF THE NOTI CE I S NOT 3 I.T.A. NO. 5874 / MUM/201 7 M/S NAVSTAR METALS PVT. LTD. ISSUED/SERVED BY THE AO WITHIN THE PRESCRIBED PERIOD, THEN IN THAT EVENTUALITY, THE ASSESSMENT ORDER STANDS INVALID. 4. WE HAVE ALSO CONSIDERED THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF ACIT & ANR. VRS . HOTEL BLUE MOON (2010) 321 ITR 0362 (SC), ACIT VRS. GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY (2015) 379 ITR 0014 (ALLAHABAD HC) AND TRAVANCORE DIAGNOSTICS PVT. LTD. VRS. ACIT (2017) 390 ITR 0167 (KERALA HC), ETC , WHEREIN THE HONBLE COURTS HAVE TAK EN A CONSISTENT VIEW THAT IN RE - ASSESSMENT PROCEEDINGS, IF NOTICES ARE NOT ISSUED U/S 143(2), THEN IN THAT EVENTUALITY, THE ASSESSMENT ORDER STANDS INVALID. 5 . MOREOVER, N O NEW FACTS OR CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD BEFORE US I N ORDER TO CONTROVERT OR REBUT THE FINDINGS SO RECORDED BY LD CIT (A) . THEREFORE, THERE ARE NO REASON S FOR US TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD. CIT (A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CI T (A) ARE 4 I.T.A. NO. 5874 / MUM/201 7 M/S NAVSTAR METALS PVT. LTD. JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THIS GROUND RAISED BY THE REVENUE STANDS DISMISSED . 6 . IN THE NET RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JAN, 2019 . SD/ - SD/ - ( G. MANJUNATHA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 08 . 01 .201 9 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI