M/s. Tawi Tractors, Jammu V. The Income-tax Officer, Jammu

ITA 649/ASR/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76974 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 30-06-2014
• Assessment Year: 1992-1993
• Appeal Filed On: 04-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARSEM LAL
• Assessee Lawyers: NEERAJ NAGPAL CAS; SSH D L NAGPAL
• Keywords: Competent authority
• Section: 147; 148; 43B; 142(1); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER I.T.A. NO. 649(ASR)/2013 ASSESSMENT YEAR: 1992-93 PAN: ALRPS3889F M/S TAWI TRACTORS, VS, INCOME TAX OFFICER, DIGIANA, JAMMU WARD 1(2), JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: S/SH D.L. NAGPAL AND NEERAJ NAGPAL, CAS RESPONDENT BY: SH. TARSEM LAL, DR DATE OF HEARING: 30.06.2014 DATE OF PRONOUNCEMENT: 30.06.2014 ORDER 1. THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 1992-93, RAISING THE FOLLOWING GROUNDS: I. THE LD. CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE IS NOT CONSIDERING THE CONTENTION OF THE ASSESSEE THAT THE APPROVAL FROM COMPETENT AUTHORITY FOR ISSUE OF NOTICE U/S 14 8 WAS WRONGLY OBTAINED U/S 151(1) INSTEAD OF SECTION U/S 151(2) A ND CONFIRMED BY THE ASSESSING OFFICER IN THE REMAND REPORT AND AS S UCH THE NOTICE ISSUED U/S 148 WAS INVALID AB INITIO AND ASSESSMENT MADE U/S 144/147 OF THE INCOME TAX ACT, 1961 IS ALSO INVALID AND ILLEGAL AND NEEDS TO BE CANCELLED. II. THE LD. CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE IS NOT CONSIDERING THE CONTENTION OF THE ASSESSEE PROP ERLY THAT NOTICE U/S 148 WAS NOT SERVED UPON THE ASSESSEE AS PER THE PROCEDURE AND MODE OF SERVICE OF NOTICE PRESCRIBED UNDER SECTION 282 OF THE INCOME TAX ACT AND WITHOUT ANY RECORD OF ORDER SHEE T ENTRIES AND THE ASSESSMENT SO MADE U/S 144/147 OF THE INCOME TA X ACT, 1961 IS INVALID AND NEEDS TO CANCELLED. III. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON TH E FACTS OF THE CASE IS NOT CONSIDERING THE CONTENTION OF THE ASSES SEE PROPERLY THAT NOTICE U/S 142(1) WAS NOT SERVED ON THE ASSESSEE AS PER THE 2 I.T.A. NO. 649(ASR)/2013 ASSESSMENT YEAR: 1992-93 PROCEDURE AND MADE IF SERVICE OF NOTICE PRESCRIBED U/S 282 OF THE INCOME TAX ACT BUT WAS ALLEGEDLY SERVED TO THE STRA NGER S. SURJEET SINGH NOT KNOWN TO THE ASSESSEE AND EVEN WITHOUT IS SUE OF NOTICE U/S 142(2) OF THE INCOME TAX ACT AND THE ASSESSMENT SO MADE U/S 144/147 WITHOUT PROOF OF SERVICE OF NOTICE U/S 142( 1) ON THE ASSESSEE AND WITHOUT ANY RECORD OF ORDER SHEET ENTR IES IS INVALID AND NEEDS TO BE CANCELLED. IV. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FA CTS OF THE CASE IN NOT CONSIDERING THE FACTS OF THE CASE PROPERLY T HAT THE NOTICE ISSUED U/S 148 WAS INVALID AND NOTICE ISSUED U/S 14 2(1) WAS NOT SERVED UPON THE ASSESSEE AND THE ASSESSMENT SO MADE IS INVALID AND THE ADDITION MADE OF RS. 1,68,057/- U/S 43B OF THE INCOME TAX ACT NEEDS TO BE DELETED. V. THE LD. CIT(APPEALS) HAS ERRED IN LAW AND ON THE FA CTS OF THE CASE IN NOT CONSIDERING THE FACTS OF THE CASE PROPERLY A ND IN NOT DELETING THE INTEREST CHARGED U/S 234A RS. 28,274/- AND RS. 1,92,605/- U/S 234B OF THE INCOME TAX ACT, 1961 AS THE RE-ASSESSME NT SO MADE U/S 144/147 IS INVALID AND NEEDS TO BE DELETED. 2. APROPOS GROUND NO.1, THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE LEARNED CIT(A) HAS NOT DECIDED T HIS ISSUE, EVEN THOUGH IT WAS SPECIFICALLY TAKEN BEFORE HIM. 3. ATTENTION HAS BEEN DRAWN TO PARA 2, PAGE 8 TO PAR A IV(IV) AT PAGE 9 OF THE CIT(A)S ORDER. 4. IN THIS REGARD, IT IS SEEN THAT VIDE WRITTEN SUBM ISSION DATED 15.12.2010 {CIT(A)S ORDER, PAGE 2 PARA 3 ONWARDS}, THE ASSESS EE HAD RAISED THE FOLLOWING SPECIFIC SUBMISSIONS BEFORE THE LEARNED C IT(A): 2. THE PROVISIONS OF SUB-SECTION(1) AS TO THE ISSUE OF NOTICE SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 151. III. SECTION 151 FOR OBTAINING SANCTION FOR ISSUE OF NOTICE U/S 148 READS AS UNDER :- 3 I.T.A. NO. 649(ASR)/2013 ASSESSMENT YEAR: 1992-93 1. IN A CASE WHERE AN ASSESSMENT UNDER SUB-SECTION 3 O F SECTION 143 OR SECTION 147 HAS BEEN MADE FOR THE RELEVANT ASSES SMENT YEAR, NO NOTICE SHALL BE ISSUED U/S 148. (NOT APPLICABLE TO ASSESSEE CASE). 2. IN A CASE OTHER THAN A CASE FALLING UNDER SUB SECTI ON (1) NO NOTICE SHALL BE ISSUED U/S 148 BY AN ASSESSING OFFICER WHO IS BELOW THE RANK OF DEPUTY COMMISSIONS, AFTER THE EXPIRY OF FOU R YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS THE DEPUTY COMMISSIONER IS SATISFIED ON THE REASONS RECORDED B Y SUCH ASSESSING OFFICER, THAT IT IS A FIT CASE FOR THE IS SUE OF SUCH NOTICE. IV. I) IN THIS CASE THE ASSESSEE FILED ITS RETURN OF INCOME U/S 139(1) FOR THE ASSTT. YEAR 1992-93 ON 31.08.1992 WITHIN TIME W HICH WAS PROCESSED U/S 143(1)(A) ON THE RETURNED INCOME ITSE LF ON 22.02.1993. II) REASONS WERE RECORDED BY THE LEARNED ASSESSING OFFICER ON 7.2.2000 BEFORE ISSUE OF THE NOTICE U/S 148 AND THE APPROVAL TO ISSUE NOTICE U/S 148 OBTAINED FROM COMPETENT AUTHOR ITY U/S 151(1) OF THE INCOME TAX ACT (BUT DESIGNATION OF TH E SANCTIONING AUTHORITY AND DATE HAS NOT BEEN MENTION ED IN APPROVAL SHEET) III) THE WORDING THAT THIS NOTICE IS BEING ISSUED AFTER OBTAINING THE NECESSARY SATISFACTION OF THE COMMISSIONER OF I NCOME TAX/THE CENTRAL BOARD OF DIRECT TAXES HAVE BEEN CRO SSED AS IF NO APPROVAL HAS BEEN OBTAINED. IV) APPROVAL FOR ISSUE OF THE NOTICE U/S 148 WAS R EQUIRED U/S 151(2) BUT THE SAME WAS OBTAINED UNDER WRONG SECTION 151(1 ) WHICH IS NOT APPLICABLE TO ASSESSEES CASE AND AS SUCH THE N OTICE ISSUED U/S 148 ASKING THE ASSESSEE TO FILE RETURN OF INCOM E IS NOT VALID NOTICE AND THE ASSESSMENT MADE ON THE BASIS OF INVA LID NOTICE IS NOT A VALID ASSESSMENT AND NEEDS TO BE CANCELLED. V) 5. A COPY OF THE REASONS RECORDED BY THE ASSESSING OF FICER ON 07.02.2000 BEFORE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE INCOME- TAX ACT, 1961 (IN SHORT THE ACT) IS AT PAGE 3 OF THE ASSESSEES PAPER BOOK. THE LAST SENTENCE THEREOF (APB-3) READS AS FO LLOW: 4 I.T.A. NO. 649(ASR)/2013 ASSESSMENT YEAR: 1992-93 IT IS THEREFORE, REQUESTED THAT PERMISSION UNDER S ECTION 151(1) MAY KINDLY BE ACCORDED TO ISSUE NOTICE UNDER SECTION 14 8 OF THE ACT IN THE ABOVE NOTED CASE. 6. THE FORM FOR RECORDING THE REASONS FOR INITIATING PROCEEDINGS UNDER SECTION 148 OF THE ACT, AND FOR OBTAINING THE APPRO VAL OF THE COMMISSIONER OF INCOME TAX/THE CENTRAL BOARD OF DIR ECT TAXES IS AT APB-2. ON A PERUSAL OF THIS COPY, IT APPEARS THAT T HE DESIGNATION OF THE SANCTIONING AUTHORITY HAS NOT BEEN MENTIONED. 7. A COPY OF THE NOTICE UNDER SECTION 148 OF THE ACT ISSUED TO THE ASSESSEE ON 14.02.2000 IS APPENDED AT APB-4. THEREI N, THE LAST SENTENCE READS AS FOLLOW: THIS NOTICE IS BEING ISSUED AFTER OBTAINING THE NE CESSARY SATISFACTION OF THE COMMISSION OF INCOME TAX/THE CENTRAL BOARD OF D IRECT TAXES. FROM A PERUSAL OF THIS COPY, THE RELEVANT PORTION S THEREOF APPEAR TO HAVE BEEN CROSSED. 8. THE AFORE-DISCUSSED INFIRMITIES, AS POINTED OUT BY THE ASSESSEE BEFORE THE LEARNED CIT(A), HAVE , HOWEVER, NOT BEEN DISCUSSED, MUCH LESS DECIDED BY THE LEARNED CIT(A). THESE POINTS GO TO T HE ROOT OF THE MATTER AND THEY ARE JURISDICTIONAL ISSUES. THEREFORE, THEY OUGHT TO HAVE BEEN DECIDED BY THE LEARNED CIT(A) WHILE PASSING THE IMP UGNED ORDER. NON- DECISION THEREOF RENDERS THE ORDER UNDER APPEAL A N ON-SPEAKING ORDER. 5 I.T.A. NO. 649(ASR)/2013 ASSESSMENT YEAR: 1992-93 9. ACCORDINGLY, I REMIT THIS ISSUE TO THE FILE OF L EARNED CIT(A), TO BE DECIDED IN ACCORDANCE WITH LAW, ON AFFORDING ADE QUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 10. SINCE THE FILE IS BEING REMITTED, AS ABOVE, TO T HE LEARNED CIT(A) FOR DECISION, ALL THE OTHER ISSUES RAISED BY THE AS SESSEE BEFORE ME BY WAY OF GROUND NOS. 2 TO 5, BECOME CONSEQUENTIAL AND THE LEARNED CIT(A) SHALL DECIDE ALL OF THEM IN THE LIGHT OF THE DECISION TO BE TAKEN BY HIM QUA GROUND NO. 1. HELD ACCORDINGLY. 11. IN THE RESULT, FOR THE STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JUNE, 2014 SD/- (A.D. JAIN) JUDICIAL MEMBER DATED: 30 TH JUNE, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S TAWI TRACTORS, DIGIANA, JAMMU 2. ITO, WARD 1(2), JAMMU 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.