ITO 3(1)(1), MUMBAI V. ARUNKUMAR D. BAJAJ, MUMBAI

ITA 6406/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83984 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 19-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SACHIDANAND DUBE
• Keywords: Procedural lapse
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI D. KARUNAKARA RAO, ACCOUNTAT MEMBER I.T.A.NO. 6406/M/2011 (AY: 2008 - 2009) INCOME TAX OFFICER, WARD - 3(1)(1), MUMBAI. VS. SHRI ARUNKUMAR D. BAJAJ, A - 801, 802, MUKTA ANGAN CHS, KAILASH PURI ROAD, UPPER GOVIND NAGAR, MALAD (E), MUMBAI - 97. PAN: AAAPB6188N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SACHIDANAND DUBE RESPONDENT BY : NONE DATE OF HEARING: 1.10.2014 DATE OF ORDER: 29 .10.2014 O R D E R PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE REVENUE ON 19.9.2011 AGAINST THE ORDER OF THE CIT (A) - 7, MUMBAI DATED 8.6.2011 FOR THE ASSESSMENT YEAR 2008 - 2009. 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN ANNULLING THE ASSESSMENT BY TREATING IT AS BAD IN LAW WITHOUT APPRECIATING THE FACT THAT NOTICE U/S 143(2) WAS GENERATED FROM ITD SYSTEM ON THE BASIS OF PAN DATA SUPPLIED BY THE ASSESSEE WHO HAS FAILED TO GET HIS PAN DETAILS CORRECTED ON THE SYSTEM. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN ANNULLING TH E ASSESSMENT WITHOUT APPRECIATING THE FACT THAT THE DEFECT IN NOTICE U/S 143(2) WAS PROCEDURAL IN NATURE AND THE SAME IS COVERED BY SECTION 292B OF THE ACT. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED THE RETU RN OF INCOME DECLARING THE TOTAL INCOME O F RS. 9,31,604/ - . THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND AIR INFORMATION. THE STATUTORY NOTICE U/S 143(2) OF THE ACT WAS ISSUED IN THE NAME OF KUM. RACHANA A. BAJAJ. OF COURSE, THE SAID NOTICE CONTAINS PAN OF THE ASSESSEE AAAPB6188N. THE ASSESSEE RECEIVED THE SAID NOTICE AND FILED OBJECTIONS AGAINST THE ISSUANCE OF THE SAID NOTICE IN THE NAME OF KUM. RACHANA A. BAJAJ INSTEAD OF SHRI ARUNKUMAR DEVIDUTTA BAJAJ. ASSESSEE CONTENDED THAT THE SAID NOTICE W AS ISSUED TO THE WRONG PERSONS AT THE WRONG ADDRESS AND THEREFORE, THE SAME IS INVALID. AO REJECTED THE SAME STATING THAT THE 2 ASSESSEES OBJECTIONS ARE NOT SUSTAINABLE AS THE SAME WERE FILED AFTER A GAP OF MORE THAN ONE YEAR FROM THE DATE OF FILING OF THE RETURN OF INCOME. AO RELIED ON THE PROVISIONS OF SECTION 143(2) OF THE ACT AND MENTIONED THAT THE SAID NOTICE WHICH WAS SERVED ON OR BEFORE 30.9.2009 IS A VALID NOTICE. AGGRIEVED, ASSESSEE FILED AN APPEAL BEFORE THE CIT (A). 4. DURING THE FIRST APPELLAT E PROCEEDINGS, ASS ESSEE FILED WRITTEN SUBMISSIONS. CIT (A) CONSIDERED THE SAME AND DISCUSSED THE PROVISIONS OF SECTION 143(2) OF THE ACT. CIT (A) ALSO EXTRACTED THE IMPUGNED NOTICE U/S 143(2) DATED 13.8.2009, WHICH WAS SERVED ON THE ASSESSEE ON 22.9.2009 AND FOUND THAT THE SAID NOTICE WAS ISSUED IN THE NAME OF KUM. RACHANA A. BAJAJ, ADDRESSED TO HER INSTEAD TO THE ASSESSEE SHRI ARUNKUMAR DEVIDUTTA BAJAJ. CIT (A) ALSO DISCUSSED THE DIFFERENCE IN THE ADDRESS OF THE ASSESSEE AS WELL AS KUM. RACHANA A. BAJA J. HE ALSO DISCUSSED THE NEXT NOTICE SEND BY THE AO U/S 142(1) OF THE ACT AND FOUND THE SAME WAS ALSO SENT TO KUM . RACHANA A. BAJAJ TO THE WORLI ADDRESS INSTEAD TO SHRI ARUNKUM AR DEVIDUTTA BAJAJ TO THE MALAD - ADDRESS. RELYING ON THE JUDGMENT OF THE HONBL E SUPREME COURT IN THE C ASE OF ACIT VS. HOTEL BLUE MOON ( 35 DTR 1 ) , IT WAS ARGUED THAT WHEN AN ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S 158BC, NOTICE U/S 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND THEREFORE, THE REQUIREMENT OF NOTICE U/S 143(2) CANNOT BE DISPENSES WITH. ASSESSEE ALSO RELI ED ON VARIOUS DECISIONS IN SUPPORT OF HIS CLAIM THAT THE ASSESSEE HAS NOT RECEIVED ANY PROPER NOTICE U/S 143(2) OF THE ACT WITHIN THE DUE DATE. CIT (A) CONSIDERED THE ABOVE ARGUMENTS OF THE ASSESSEE AND HELD THAT THE NOTICE DATED 13.8.2009 ISSUED U/S 143( 2) OF THE ACT IN THE NAME OF THE DAUGHTER OF THE ASSESSEE AND NOT ADDRESSED TO THE ASSESSEE , CANNOT BE A VALID NOTICE. FURTHER, THE CIT (A) AS PER THE DISCUSSION GIVEN IN PARA 5.6 MENTIONED THAT THE DEPARTMENT IS FULLY AWARE OF THE SEPARATE IDENTITY OF TH E ASSESSEE AS WELL AS KUM. RACHANA A. BAJAJ AND HELD THAT THE AO DID NOT DISCHARGE THE STATUTORY OBLIGATION IN THE MATTERS OF ISSUANCE OF STATUTORY NOTICE IN A PROPER PERSPECTIVE AND WITHIN DUE DATES SPECIFIED IN THE ACT. HE ANALYZED THE IMPORTANCE OF ISS UANCE AND SERVING OF THE STATUTORY NOTICE U/S 143(2) OF THE ACT AND RELIED ON THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA). FINALLY, CIT (A) ANNULLED THE ASSESSMENT MADE BY THE AO. AGGRIEVED WITH THE SAME, REVENUE IS IN A PPEAL BEFORE THE TRIBUNAL. 3 5. DURING THE PROCEEDINGS BEFORE US, LD DR AGREED TO THE FACT OF ISSUANCE OF STATUTORY NOTICE U/S 143(2) OF THE ACT TO KUM. RACHANA A. BAJAJ, THE DAUGHTER OF THE ASSESSEE. HE ALSO AGREED TO THE FACT THAT THE ASSESSEE BEARS THE P AN NO. AAAPB6188N AND THE ADDRESS GIVEN IN THE RETURN OF INCOME REFERS TO A - 801, 802, MUKTA ANGAN CHS,KAILASH PURI ROAD, UPPER GOVIND NAGAR, MALAD (E), MUMBAI - 400 097, WHEREAS THE NOTICE DATED 13.8.2009 WAS SENT TO KUM. RACHANA A. BAJAJ, 6 TH FLOOR, LALIT K UNJ, 70,POCHKHANWALA ROAD, WORLI, MUMBAI - 400025. THE NOTICE WAS SENT TO THE WRONG ADDRESS DESPITE CORRECT ADDRESS MENTIONED BY THE ASSESSEE IN THE RETURN OF INCOME. NO DISPUTE ON THE FACT THAT THE SUBSEQUENT NOTICE U/S 142(1) OF THE ACT WAS ALSO ISSUED I N THE NAME OF THE ASSESSEES DAUGHTER KUM. RACHANA A. BAJAJ. HOWEVER, LD DR RELIED HEAVILY ON THE ORDER OF THE AO AND MENTIONED THAT THE MISTAKES APPEARED ON THE NOTICE ARE CURABLE AND THE ASSESSMENT COULD NOT BE ANNULLED. 6 . PER CONTRA, NONE APPEARED FOR THE ASSESSEE. HOWEVER, CONSIDERING THE FACTS OF THE CASE AND THE COVERED NATURE OF THE ISSUE BY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA), WE PROCEED TO ADJUDICATE THE APPEAL. THE UNDISPUTED FACTS INCLUDE THE ISSUANCE OF NOTICE U/S 143(2) IN THE NAME OF KUM. RACHANA A. BAJAJ FOR MAKING ASSESSMENT OF SHRI ARUNKUMAR DEVIDUTTA BAJAJ , SENDING OF THE SAID NOTICE T O THE WORLI ADDRESS WHERE THE ASSESSEES DAUGHTER RESIDES , THE FACT OF ISSUANCE OF ANOTHER NOTICE U/S 142(1) OF T HE ACT AGAIN TO THE SAME PERSON AND CERTAINLY NOT TO THE ASSESSEE ETC . IT IS THE SUBMISSION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES THAT MERE EXISTENCE OF ASSESSEE S PAN ON THE SAID NOTICE IS NO JUSTIFICATION FOR THE FATAL MISTAKE COMMITTED BY THE REVENUE. THE STATUTORY NOTICES SHOULD BE PERFECT IN ALL RESPECTS , OTHERWISE, THE ASSESSMENT MADE BASED ON SUCH WRONG NOTICES SHOULD BE ANNULLED AS RIGHTLY DONE BY THE CIT (A) IN THE PRESENT CASE. 7 . WE HAVE HEARD LD DR AND PERUSED THE OR DERS OF THE REVENUE AUTHORITIES AND THE FACTS RELEVANT TO DECIDE WHETHER THE NOTICE ISSUED U/S 143(2) OF THE ACT IS VALID AND SUSTAINABLE IN THE SIGHT OF THE LAW. WE AGREE WITH THE SUBMISSIONS MADE BY THE ASSESSEE IN THIS REGARD. THEREFORE, WE FIND, THE D ECISION TAKEN BY THE CIT (A) IN ANNULLING THE ASSESSMENT MADE BY THE AO IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 8 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 4 ORDER PRONOU NCED IN THE OPEN COURT ON 29 TH OCTOBER, 2014. SD/ - SD/ - (H.L. KARWA) (D. KARUNAKARA RAO) PRESIDENT ACCOUNTANT MEMBER DATE: 29 .10.2014. AT :MUMBAI OKK COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT (A), CONCERNED. 4. THE CIT CONCERNED. 5. THE DR A, BENCH, ITAT, MUMBAI. 6. GUARD FILE. // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI