ITO, UDAIPUR V. Shri Deepa Makim, UDAIPUR

ITA 6/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5288 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 02-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Section: 148

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE: SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO.6, 7 AND 8/JODH/2015 ASSESSMENT YEAR: 2-008-09, 2009-10 AND 2010-11 THE INCOME TAX OFFICER, WARD 2 (2), NEW FATEHPURA, UDAIPUR, RAJASTHAN VS. SHRI DEEPAK MAKIM, 67- ADINATH NAGAR, FATEHPURA, UDAIPUR RAJASTHAN. PAN :AHXPM2285K APPELLANT RESPONDENT APPELLANT BY SHRI S. L. MOURYA, DR RESPONDENT BY NONE DATE OF HEARING: 11.03.2016 DATE OF PRONOUNCEMENT: 11.03.16 O R D E R PER: GEORGE MATHAN, J.M. : THESE ARE THREE APPEALS FILED BY THE REVENUE AGAIN ST THE DIFFERENT ORDERS OF THE LEARNED CIT (A), UDAIPUR ALL DATED 15 -10-2014 PASSED IN APPEALS NO.175/IT/UDR/2013-14 FOR ASSESSMENT YEAR 2 008-09, NO.176/IT/UDR/2013-14 FOR ASSESSMENT YEAR 2009-10 A ND NO.173/IT/UDR/2013-14 FOR ASSESSMENT YEAR 2010-11 R ESPECTIVELY. 2. NONE REPRESENTED ON BEHALF OF THE ASSESSEE. THE ASSESSEE HAS SOUGHT FOR ADJOURNMENT WITHOUT GIVING ANY VALID REA SONS. CONSEQUENTLY, ADJOURNMENT REQUEST IS REJECTED AND THE APPEAL IS H EARD. 2 ITA NO.6, 7 AND 8/JODH/2015 3. SHRI S. L. MOURYA, LEARNED DR REPRESENTED ON BEH ALF OF THE REVENUE. IT WAS SUBMITTED BY THE LEARNED DR THAT THE MAIN IS SUE IN THE REVENUES APPEALS WAS AGAINST THE ACTION OF THE LEANED CIT (A ) IN HOLDING THAT THE NOTICE U/S 148 OF THE IT ACT CANNOT BE VALIDLY ISSU ED TO ASSESS ANY CASE ON PROTECTIVE BASIS BY FOLLOWING THE DECISION OF THE C O-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI TRAYAMBAKLAL PANDYA (H UF) IN ITA NO.129 & 130/JU/2014 FOR ASSESSMENT YEAR 1985-86 & 1986-87 I GNORING THE FACT THAT THE SAID DECISION IS CHALLENGED BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF TH E AO. 4. WE HAVE CONSIDERED THE SUBMISSIONS. IT IS NOTICE D THAT THE LEARNED CIT (A) HAS FOLLOWED JUDICIAL DISCIPLINE BY FOLLOWING T HE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI TRAYAMBA KLAL PANDYA IN ITA NO.129 & 130/JU/2014 DATED 25-09-2014 WHEREIN IT HA S BEEN CATEGORICALLY HELD IN PARA 4 OF THE ORDER AS UNDER:- 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAV E FOUND THAT A NOTICE U/S 148 CANNOT BE VALIDLY ISSUED TO ASSESS ANY CASE ON PROTECTIVE BASIS. THE A.O. IS BOUND TO MAKE HIS FI RM OPINION REGARDING ESCAPEMENT OF INCOME OF AN ASSESSEE WHEREAS THE AS SESSMENT ON PROTECTIVE BASIS IS ONLY IN THE NATURE OF HIT AND TRIAL. THE FRAMING OF A PROTECTIVE ASSESSMENT IS ANTI-THESES OF FORMING AN OPINION BY THE A. O. OF ESCAPEMENT OF INCOME ON AN ASSESSEE, AS SUCH AC TION IS TAKEN ONLY TO PROTECT THE INTEREST OF THE REVENUE. THUS, IN V IEW OF THE ABOVE WE FIND THAT THE NOTICE (S) ISSUED U/S 148 OF THE ACT IN BOTH THE YEARS ARE INVALID AND RESULTANTLY THE ASSUMPTION OF JURISDIC TION BY THE A. O U/S 148 IS ALSO INVALID. ANY ORDER MADE ON SUCH A JURI SDICTION IS BOUND TO FALL BEING ILLEGAL. THEREFORE, WE QUASH THE ASSESS MENT ORDER MADE IN BOTH THE YEARS AND ALLOW BOTH THE APPEALS. THE DEC ISIONS ON WHICH THE 3 ITA NO.6, 7 AND 8/JODH/2015 LD. A. R. HAS RELIED ARE NOT ONLY DIRECTLY APPLICA BLE TO THE FACTS OF THESE CASES BUT ALSO HAVE A BINDING EFFECT. ACCORDINGLY, BOTH THE APPEALS OF THE ASSESSEE STAND ALLOWED. AS IT IS NOTICED THAT THE LEARNED CIT (A) HAS FOLLO WED JUDICIAL DISCIPLINE, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE L EARNED CIT (A). CONSEQUENTLY, WE UPHOLD HIS ORDER. 5. IN THE RESULT, ALL THE THREE APPEALS FILED BY TH E REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.03.2016. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, DATED: 11 TH MARCH, 2016 LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. CIT CONCERNED 4. CIT (A) CONCERNED 5. DR, ITAT, JODHPUR 6. GUARD FILE BY ORDER, SR. PRIVATE SECRETARY DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 11.03.16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 11.03.16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 11.03.16 JM/AM 4. DRAFT DIS CUSSED/APPROVED BY SECOND MEMBER 14 .03.16 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 14.03.16 SR.PS 6. DATE OF PRONOUNCEMENT NA SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER