Shri.K.Nagesh, Bangalore V. Deputy Commissioner of Income-Tax, Bangalore

ITA 61/BANG/2017

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8584 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-03-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAMALADHAR
• Assessee Lawyers: VINUTHA H G
• Section: 153A; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH B, BANGALORE BEFORE SHRI AK GARODIA, ACCOUNTANT MEMBER & ITA NO.61/BANG/2017 - ASST. YEAR 200 7-08 ITA NO.62/BANG/2017 - ASST. YEAR 2008-09 ITA NO.63/BANG/2017 - ASST. YEAR 2010-11 ITA NO.64/BANG/2017 - ASST. YEAR 2011-12 SHRI K NAGESH, NO.487, 1S FLOOR, 5 TH CROSS, PWD ROAD, BANASHANKARI 3 RD STAGE, 3 RD PHASE, KATHRIGUPPE, BENGALURU. . APPELLANT PAN NO. ABMPN9499B. VS. THE DY. COMMISSIONER OF INCOME-TAX, CIRCLE-7(2)(1), BANGALORE. RESPONDENT APPELLANT BY : MS. VINUTHA H.G, C.A RESPONDENT BY : SHRI A.R.V SREENIVASAN, JCIT & SHRI KAMALADHAR, ADVOCATE DATE OF HEARING : 16-3-2017 DATE OF PRONOUNCEMENT : 17-3-2017 O R D E R PER SHRI AK GARODIA, ACCOUNTANT MEMBER : THIS BUNCH OF 4 APPEALS IS FILED BY THE ASSESSEE A ND THESE APPEALS ARE DIRECTED AGAINST THE COMBINED ORDER OF LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) 7, BANGALOR E DATED ITA NOS.61 64/B/17 2 31/10/2016 FOR ASSESSMENT YEARS 2007-08, 2008-09, 2010-11 AND 2011-12. 2. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BE ING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONNIVA NCE. 3. IT WAS SUBMITTED BY THE LD AR OF THE ASSESSEE T HAT GROUND NO.1 IS GENERAL IN ALL THE 4 YEARS AND AS PER GROUND NOS . 2 TO 6, WHICH ARE ALSO COMMON IN ALL THE 4 YEARS, THIS IS THE GRIEVAN CE OF THE ASSESSEE THAT NOTICE U/S 143(2) WAS NOT SERVED ON THE ASSESSEE WI THIN THE PRESCRIBED TIME IN ANY OF THESE 4 YEARS AND HENCE, THE ASSESSM ENT ORDER IN ALL THESE FOUR YEARS IS BAD LAW AND IN SUPPORT OF THIS, RELIA NCE HAS BEEN PLACED ON THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF ACIT VS. HOTEL BLUE MOON AS REPORTED IN 188 TAXMAN 113. 4. IT WAS SUBMITTED BY THE LD DR OF THE REVENUE IN REPLY THAT NOTICE U/S 142(2) WAS ISSUED IN THE MONTH OF NOVEM BER 2013 ITSELF WHERE AS THE RETURN WAS FILED BY THE ASSESSEE ON 13 /11/2013. IN REJOINDER, IT WAS SUBMITTED BY LD AR OF THE ASSESSE E THAT NOTICE HAS BEEN ISSUED BUT THE SAME WAS SERVED ON THE ASSESSEE IN F EB, 2015 ONLY. THEREFORE, SERVICE OF NOTICE IS NOT WITHIN THE PRES CRIBED TIME AND HENCE, THESE ASSESSMENT ORDERS SHOULD BE QUASHED. ITA NOS.61 64/B/17 3 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIN D THAT IT IS NOTED BY THE LD CIT(A) ON PAGE NO.17 OF HIS ORDER T HAT IT WAS SUBMITTED BEFORE HIM THAT THE ASSESSEE WAS INTIMATED OVER UPO N PHONE TO APPEAR ON 24/2/2015 AND ON 24/2/2015, WHEN THE REPRESENTAT IVE OF THE ASSESSEE APPEARED, A NOTICE U/S 143(2) OF THE INCOME-TAX ACT DATED 19/11/2013 WITH THE DATE OF HEARING AS 26/11/2013 WAS SERVED. AFTER CONSIDERING THESE FACTS, IT IS HELD BY THE LD CIT(A) THAT PROVI SIONS OF SECTION 153A OF THE INCOME-TAX ACT ARE DIFFERENT FROM THE PROVIS IONS OF SEC. 158BC OF THE INCOME-TAX ACT AND THEREFORE, THIS JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF HOTEL BLUE MOON (SUPR A) IS NOT APPLICABLE. HENCE, IT IS ADMITTED POSITION THAT NO TICE U/S 143(2) WAS NOT SERVED ON THE ASSESSEE WITHIN THE PRESCRIBED TIME. WE FIND THAT AS PER SUB SEC. 1 OF SEC. 153A OF THE INCOME-TAX ACT, IT I S SPECIFIED THAT NOTWITHSTANDING ANYTHING CONTAINED IN SECTIONS. 139 , 147, 149, 151 AND 153 WHERE A SEARCH HAS TAKEN PLACE, AO SHALL ISSUE NOTICE TO THE CONCERNED PERSON REQUIRING HIM TO FURNISH RETURN OF INCOME IN RESPECT OF EACH OF THESE 6 ASSESSMENT YEARS AND THE PROVISI ON OF THIS ACT SHALL SO FAR AS MAY BE APPLIED ACCORDINGLY AS IF SUCH RET URN WERE A RETURN REQUIRED TO BE FURNISHED U/S 139 OF THE INCOME-TAX ACT. 6. IN VIEW OF THIS CLEAR PROVISION OF THE ACT, I F IND NO MERIT IN THE STAND OF THE LD CIT(A) THAT WHERE THE PROCEEDINGS A RE INITIATED U/S 153A OF THE INCOME-TAX ACT, NOTICE U/S 143(2) IS NOT REQ UIRED TO BE ISSUED. IN ITA NOS.61 64/B/17 4 MY CONSIDERED VIEW, THIS JUDGMENT OF HONBLE APEX C OURT RENDERED IN THE CASE OF HOTEL BLUE MOON (SUPRA) IS APPLICABLE I N THOSE CASES ALSO WHERE ASSESSMENT IS BEING COMPLETED U/S 153A AND TH EREFORE, BY RESPECTFULLY FOLLOWING THIS JUDGMENT OF HONBLE APE X COURT, I HOLD THAT THE ASSESSMENT ORDERS PASSED BY THE AO IN THESE 4 Y EARS ARE NOT VALID BECAUSE NOTICE US 143(2) WAS NOT SERVED ON THE ASSE SSEE WITHIN THE PRESCRIBED TIME. THESE ASSESSMENT ORDERS ARE QUASHE D. 7. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CAL LED FOR ON MERIT ON VARIOUS ADDITIONS MADE BY THE AO WHICH ARE DISPU TED IN THE APPEALS. 8. IN THE RESULT, ALL THE FOUR APPEALS OF THE ASSE SSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH MARCH, 2017. SD/- (AK GARO DIA) ACCOUNTANT ME MBER VMS. BANGALORE DATED : 17/03/2017 COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER ASST. REGISTRAR, IT AT, BANGALORE.