DCIT, New Delhi V. M/s. Elymer International Pvt. Ltd., New Delhi

ITA 6158/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3602 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 10-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KR SHARMA
• Section: 142(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER AND SH. L. P. SAHU, ACCOUNTANT MEMBER ITA NO. 6158/DEL/2014 (ASSESSMENT YEAR: 2007-08) DEPARTMENT BY : SH. ANIL KR. SHARMA, SR. DR ASSESSEE BY : NONE. DATE OF HEARING : 13.11.2017 DATE OF PRONOUNCEMENT : 13.11.2017 O R D E R PER BHAVNESH SAINI, J.M : 1. THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(A)XIII, NEW DELHI, DATED 19.08.2014 FOR AS SESSMENT YEAR 2007-08, ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS. 1,96,49,829/- MADE U/S 80IA OF THE I.T. ACT, IGNORI NG THE FACT THAT THE ASSESSEE HAD INVESTED RS. 11,81,67,73 6/- IN PLANT AND MACHINERY AND CLAIMED DEDUCTION U/S 10A A T RS. 1,96,49,829/-. HOWEVER, AS PER NOTIFICATION DAT ED 24.12.1999 THE CEILING FOR INVESTMENT IN SMALL SCAL E INDUSTRIES U/S 11B OF THE INDUSTRIES ACT WAS RS. 1,00,00,000/- ONLY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSMENT WAS NULL AND VOID WITHOUT CONSIDERING THE PROVISION OF SEC 292BB OF THE IT ACT. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF HEARIN G. DCIT CIRCLE 11(1) NEW DELHI VS. ELYMER IN TERNATIONAL PVT. LTD. 13, RAJPUR ROAD, CIVIL LINES. NEW DELHI GIR/PAN: AAACE3789P (APPELLANT) (RESPONDENT) 2 ITA NO. 6158/DEL/2014 GROUND NO. 1 & 2. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSMENT U/S 14 3(3) WAS COMPLETED IN OCTOBER, 2009, DETERMINING TOTAL INCOM E OF RS. 4.71 CRORES. THE AO AFTER RECORDING REASONS FOR REOPENIN G OF THE ASSESSMENT ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT AND COMPLETED THE ASSESSMENT AT RS. 6.67 CRORES, VIDE O RDER DATED 28.01.2013 U/S 147/143(3) OF THE INCOME TAX ACT. 3. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFOR E LD. CIT (A), IT WAS SUBMITTED THAT REASSESSMENT ORDER IS IN VALID AB INITIO BECAUSE NOTICE U/S 143(2) HAVE NOT BEEN ISSUED AND OBJECTION U/S 147 HAVE NOT BEEN DECIDED BY SPEAKING ORDER. THE AS SESSEE RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE C ASE OF GKN DRIVESHAFS (INDIA) LTD. VS. INCOME TAX OFFICER (259 ITR 19) AND DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS PAWAN GUPTA (318 ITR 322). 4. LD. CIT(A) AFTER VERIFICATION OF ASSESSMENT ORDER RECORD FOUND THAT AO HAS ONLY ISSUED THE NOTICE U/S 142(1) OF TH E INCOME TAX ACT AND NO NOTICE U/S 143(2) OF THE ACT HAS BEEN IS SUED DURING THE ASSESSMENT PROCEEDINGS. LD. CIT(A) RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS HOTEL BLUE MOON REPORTED IN 321 ITR 362 AND OTHERS AND DECISION OF DELHI HIGH COURT IN THE CASE OF ALPINE ELECTORNICS ASIA PVT. L TD., 341 ITR 247 IN WHICH IT WAS HELD THAT SERVICE OF NOTICE U/S 143 (2) WITHIN THE STATUTORY TIME LIMIT IS MANDATORY, LD. CIT(A) HELD THAT THE NOTICE U/S 143(2) OF THE ACT HAS NOT BEEN ISSUED IN THIS C ASE AND OMISSION ON THE PART OF THE AO TO ISSUES NOTICES U/ S 143(2) OF THE ACT CANNOT BE PROCEDURAL IRREGULARITIES AND IS NOT CURABLE. NO ASSESSMENT CAN BE MADE WITHOUT ISSUANCE OF THE NOTI CE U/S 143(2) 3 ITA NO. 6158/DEL/2014 OF THE INCOME TAX ACT. THE ASSESSMENT MADE BY AO IS THEREFORE, NULL AND VOID . LD. CIT(A) BY HOLDING THE ASSESSMENT ORDER TO BE NULL AND VOID DID NOT DECIDE THE APPEAL ON MERIT. 5. WE HAVE HEARD LD. DR, HOWEVER, NONE HAS APPEARED O N BEHALF OF THE ASSESSEE DESPITE THAT SERVICE OF THE NOTICE UPON ASSESSEE. IT IS NOT IN DISPUTE NO NOTICE U/S 143(2) HAVE BEEN ISSUED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. LD. CI T(A) RELIED UPON THE DECISION OF HONBLE SUPREME COURT AND JUR ISDICATIONAL HIGH COURT IN WHICH IT WAS HELD THAT NOTICE U/S 143 (2) OF THE ACT HAS NOT BEEN ISSUED IN THIS CASE AND THE OMISSION O N THE PART OF THE AO TO ISSUE NOTICE U/S 143(2) OF THE ACT CANNOT BE PROCEDURAL IRREGULARITIES AND IS NOT CURABLE. SINCE, IN THE PR ESENT CASE, LD. CIT(A) ON PERUSAL OF RECORD FOUND THAT AO DID NOT I SSUE NOTICE U/S 143(2) BEFORE COMPLETION OF ASSESSMENT ORDER, THERE FORE, THE ASSESSMENT MADE BY THE AO IS NULL AND VOID. LD. CIT (A) DECIDED THE ISSUE IN THE LIGHT OF PROVISIONS OF SECTION 292 BB OF THE IT ACT. SINCE NO NOTICE U/S 143(2) HAS BEEN ISSUED, LD. CIT (A) CORRECTLY DECIDED ISSUED AGAINST REVENUE DEPARTMENT. NO INFIR MITY HAVE BEEN POINTED OUT IN THE ORDER OF THE LD. CIT(A) IN QUASH ING THE RE- ASSESSMENT ORDER. THE DEPARTMENTAL APPEAL HAS NO ME RIT AND THE SAME IS ACCORDINGLY DISMISSED. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.11.2017. SD/- SD/- (L. P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 13.11.2017 @M!T