Astt. Commissioner of Income Tax-5, Kanpur V. Shri Rajesh Singh Yadav, Kanpur

ITA 588/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4652 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-02-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 04-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SWARN SINGH
• Keywords: Invalid notice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 588/LKW/2015 ASSESSMENT YEAR: 2011 - 12 ASSTT. CIT - 5 KANPUR V. SHRI. RAJESH SIN GH YADAV BUNGALOW NO.1 LAXMAN BAGH KANPUR T AN /PAN : AASPY4418Q (APP ELL ANT) (RESPONDENT) C.O. NO. 47/LKW/2015 [IN ITA NO. 588/LKW/2015] ASSESSMENT YEAR: 2011 - 12 SHRI. RAJESH SIN GH YADAV BUNGALOW NO.1 LAXMAN BAGH KANPUR V. ASSTT. CIT - 5 KANPUR T AN /PAN : AASPY4 418Q ( CROSS - OBJECTOR ) (RESPONDENT) DEPARTMENT BY: SHRI. AMIT NIGAM, D.R. ASSESSEE BY: SHRI. SWARN SINGH, FCA DATE OF HEARING: 25 02 201 6 DATE OF PRONOUNCEMENT: 17 03 201 6 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVE NUE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - : - 2 - : 1. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN ANNULLING THE ASSESSMENT DATED 26.03.2014 WITHOUT APPRECIATING THE FACTS AND MERITS OF THE CASE BRO UGHT ON RECORD BY THE AO IN THE ASSESSMENT ORDER UNDER REFERENCE. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN ANNULLING THE ASSESSMENT DATED 26.03.2014 WITHOUT APPRECIATING THE PROVISIONS OF SECTION 292BB AND SECTION 129 OF THE INCOME TAX ACT, 1961 ESPECIALLY IN THE LIGHT OF THE FACT] THAT THE NOTICE U/S 143(2) OF THE ACT WAS TIMELY & CORRECTLY ISSUED ON 27.08.2012 BY THE IT05(4) AS THE JURISDICTION OVER THE PAN WAS LYING WITH ITO - 5(4) AT THAT TIME AND SUBSEQUENT NOTICE U/S 143(2) DATED 20.05.2013 WAS ISSUED BY THE DCIT - 5, KANPUR ONLY TO ASSUME THE CONCURRENT JURISDICTION OVER THE CASE. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN ANNULLING THE ASSESSMENT DATED 26.03.2014 WITHOUT OFFERING ANY O PPORTUNITY TO THE ASSESSING OFFICER WHILE ACCEPTING ADDITIO NAL GROUNDS DURING THE COURSE OF APPELLATE PROCEEDINGS. 4. THE LD. CIT(A) HAS TOTALLY IGNORED THE PROVISION AS CONTAINED U/S 292BB OF THE IT. ACT, 1961. NOTICE U/S 143(2) OF IT. ACT DATED 27.08.201 2 ISSUED BY THE ITO - 5(4), KANPUR IS DEEMED TO VALID IN CERTAIN CIRCUMSTANCES. 5. THE ORDER OF THE CIT (A), KANPUR BEING ERRONEOUS, UNJUST AND BAD IN LAW BE VACATED AND THE ORDER OF THE AO BE RESTORED. 2 . IN SUPPORT OF THE ORDER OF THE LD. CIT(A), THE ASSESSE E HAS FILED CROSS OBJECTION. 3 . SINCE THE APPEAL AND CROSS OBJECTION WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER. : - 3 - : 4 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT TH E ASSESSING OFFICER , WHO HAS ISSUED NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT' ) , WAS NOT HAVING JURISDICTION OVER THE ASSESSEE . T HEREFORE, THE ASSUMPTION OF JURISDICTION TO FRAME THE ASSESSMENT IS NOT PR OPER. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT BY THE INCOME TAX OFFICER , WHICH IS APPEARING AT PAGE 9 OF THE COMPILATION OF THE ASSESSEE. THEREAFTER AGA IN NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED ON 20.5.2013. AT THE RELEVANT POINT OF TIME , THE INCOME TAX OFFICER, WHO HAS ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT TO THE ASSESSEE, WAS NOT HAVING JURISDICTION OVER THE ASSESSEE. THE INCOME DEC LARED IN THE RETURN OF INCOME WAS RS.12,81,680/ - , THEREFORE, THE JURISDICTION LIES WITH THE ASSTT. COMMISSIONER OF INCOME TAX (ACIT) AND NOT THE INCOME TAX OFFICER. THE SECOND NOTICE ISSUED BY THE ACIT IS BARRED BY TIME, THEREFORE, THE ASSESSMENT IS NOT V ALID, AS THE JURISDICTION WAS NOT PROPERLY ASSUMED BY THE ASSESSING OFFICER. HE HAS ALSO INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) , WHO HA S CALLED A REMAND REPORT FROM THE ASSESSING OFFICER AND IN THE REMAND PROCEEDINGS THE ASSESSING OFFICER HA S ADMITTED THAT IN VIEW OF INSTRUCTION NO.6/2011, DATED 8.4.2011, THE CASES UPTO THE RETURNED INCOME OF RS.10 LAKHS IN NON - CORPORATE AND UPTO THE RETURNED INCOME OF RS.15 LAKHS IN CORPORATE HAVE BEEN ASSIGNED TO THE INCOME TAX OFFICER AND ABOVE THIS LIMIT HAVE BEEN ASSIGNED TO THE ACIT/DCIT. THEREFORE, AT THE RELEVANT POINT OF TIME THE INCOME TAX OFFICER WAS HAVING JURISDICTION OVER THE ASSESSEE WHOSE RETURNED INCOME WAS UPTO RS.10 LAKHS. BUT IN THE INSTANT CASE, THE ASSESSEES RETURNED INCOME WAS MORE TH AN RS.10 LAKHS, THEREFORE, THE INCOME TAX OFFICER WAS NOT HAVING JURISDICTION OVER THE ASSESSEE. : - 4 - : IN SUCH A CIRCUMSTANCE, THE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT IS NOT A VALID NOTICE AND THE ASSESSING OFFICER HA S NOT ASSUMED VALID JURISDICTION O VER THE ASSESSEE TO COMPLETE THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT. THE SECOND NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT WAS IN FACT BARRED BY TIME, AS IT WAS ISSUED ON 20.5.2013. THEREFORE, IN THE LIGHT OF THESE FACTS, THE ASSESSMENT FRAMED CONSEQUENT TO INVALID NOTICE IS NOT A VALID ASSESSMENT AND DESERVES TO BE QUASHED AND THE LD. CIT(A) HAS RIGH TLY KNOCKED DOWN THE ASSESSMENT. 5 . THE LD. D.R. HAS SIMPLY PLACED RELIANCE UPON THE ORDER OF THE ASSESSING OFFICER. 6 . HAVING CAREFULLY EXAMINED THE OR DERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY THE FIRST NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED BY THE INCOME TAX OFFICER AND AT THE RELEVANT POINT OF TIME , IN VIEW OF THE INSTRUCTION OF THE CBDT, THE INCOME TAX OFFICER WAS NOT HAVING JURISDICTION OVER THE ASSESSEE, AS THE ASSESSEES RETURNED INCOME IS MORE THAN RS.10 LAKHS AND THE JURISDICTION OVER THE ASSESSEE LIES WITH THE ACIT/DCIT. THE SECOND NOTICE ISSUED BY THE ACIT IS ADMITTEDLY BARRED BY L IMITATION. THEREFORE, THE JURISDICTION WAS ASSUMED TO COMPLETE THE ASSESSMENT OVER THE ASSESSEE THROUGH AN INVALID NOTICE BY AN INCOMPETENT OFFICER. 7 . IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT THE ASSESSMENT FRAMED CONSEQUENT TO AN INVALID NOTI CE IS NOT A VALID ASSESSMENT AND DESERVES TO BE QUASHED. WE ACCORDINGLY FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND WE CONFIRM THE SAME. 8 . SINCE THE APPEAL OF THE REVENUE IS DISMISSED, THE CROSS OBJECTION OF THE ASSESSEE BECOMES INFRUCTUOUS AND WE ACCORDINGLY DISMISS THE SAME. : - 5 - : 9 . IN THE RESULT, APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT I ONED ON THE CAPTION ED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] A CCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17 TH 1 . APPELLANT MARCH , 2016 JJ: 2502 COPY FORWARDED TO: 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR