SURESH KUMAR GUPTA, Hindaun City V. ITO, Sawai Madhopur

ITA 655/JPR/2013

• Counselvise Citation: 65523114 RSA 2013
• Duration Of Justice: 2 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 09-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA CIT DHK
• Assessee Lawyers: G C JAIN ITP
• Keywords: Question of law; Procedural lapse; Revised return
• Section: 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH IH-DS-CALY] YS[KK LNL; DS LE{K BEFORE: SHRI P.K. BANSAL, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 655/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06. SHRI SURESH KUMAR GUPTA, PROP. M/S. ANKUR INDUSTRIES, RIICO IND. AREA, HINDAUN CITY. CUKE VS. THE INCOME TAX OFFICER, WARD 3, SAWAI MADHOPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABNPG 3179 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI G.C. JAIN, ITP JKTLO DH VKSJ LS@ REVENUE BY : SHRI O.P. BHATEJA, ADDL. CIT LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/11/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 4/11/2015 VKNS'K@ ORDER PER P.K. BANSAL, A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT (A) DATED 30.04.2013. THE GROUND NO. 1 RELATES TO THE ISSUAN CE OF SERVICE OF NOTICE UNDER SECTION 143(2) WHEN THE ASSESSEE FILED THE REVISED RETURN O F INCOME. 3. IN THIS CASE, AFTER HEARING THE RIVAL SUBMISSION S IT WAS NOTICED THAT THE ASSESSEE FILED THE RETURN ORIGINALLY ON 31.10.2005 WHEN THE NOTICE UNDER SECTION 143(2) WAS ISSUED ON 9.5.2006. THIS FACT IS NOT DISPUTED BY EI THER OF THE PARTIES. DURING THE COURSE OF HEARING THE ASSESSEE FILED REVISED RETURN ON 18. 1.2007 AND BY WHICH HE RECTIFIED 2 ITA NO. 655/JP/2013 A.Y. 2005-06. SURESH KUMAR GUPTA VS. ITO SOME OF THE MISTAKES IN THE ORIGINAL RETURN. SUBSEQ UENT TO THIS, THE ASSESSEE PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND SOUG HT THE ADJOURNMENT VIDE HIS LETTERS DATED 22.5.2007 AND 5.7.2007. THE ASSESSEE ASKED T HE ADJOURNMENT AS ACCORDING TO THE ASSESSEE THE FILE WHICH CONTAINS THE INFORMATIO N AS DEMANDED BY THE DEPARTMENT GOT LOST. ON 5.7.2007 THE SON OF THE ASSESSEE APPEA RED AND ASKED FOR THE ADJOURNMENT FOR 10 TO 15 DAYS. THUS IT IS A CASE WHERE THE ASSE SSEE HAD DULY PARTICIPATED IN THE ASSESSMENT PROCEEDINGS. 4. NOW THE QUESTION ARISES WHETHER THE AO IS REQUIR ED TO ISSUE FRESH NOTICE UNDER SECTION 143(2) OF THE IT ACT. ON THE SIMILAR ISSUE , WHEN THE REVISED RETURN WAS FILED IN THE COURSE OF ASSESSMENT PROCEEDINGS IN RESPECT OF THE QUESTION RELATING TO THE ISSUE OF NOTICE UNDER SECTION 143(2), I NOTED THE JUDGMENT O F HONBLE DELHI HIGH COURT IN THE CASE OF INTARCRAFT INDIA VS. CIT, 154 ITR 662 AS RE LIED ON BY THE LD. A/R. WHEN THE QUESTION RELATING TO THE MANDATORY REQUIREMENT OF I SSUING NOTICE UNDER SECTION 143(2) AFTER FILING OF THE REVISED RETURN AROSE, THE HONB LE HIGH COURT HAS HELD AS UNDER :- HELD, THAT ASSUMING THAT THE ASSESSMENT WAS MADE AFTER PROCEDURAL IRREGULARITY IN GIVING THE NOTICE, IT WA S OPEN TO THE AAC TO SET ASIDE THE ORDER AND REMAND THE CASE UNDER SE C. 251(1)(A). NO QUESTION OF LAW AROSE FROM THE ORDER OF THE TRIB UNAL. NO CONTRARY DECISION WAS BROUGHT TO MY NOTICE BY TH E LD. A/R EXCEPT TO RELY ON THE DECISION WHICH RELATES TO WHETHER THE ISSUE OF NOTI CE UNDER SECTION 143(2) IS MANDATORY IN CASE OF FILING OF ORIGINAL RETURN/RETURN UNDER S ECTION 147. IN VIEW THESE FACTS, I DISMISS THIS GROUND. THUS THE GROUND NO. 1 STANDS DISMISSED. 3 ITA NO. 655/JP/2013 A.Y. 2005-06. SURESH KUMAR GUPTA VS. ITO 5. GROUND NO. 2 RELATES TO THE SUSTENANCE OF ORDER UNDER SECTION 144 BY LD. CIT (A) WITHOUT AFFORDING SUFFICIENT AND REASONABLE OPPORTU NITY TO THE ASSESSEE. 6. I HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONS IDERED THE SAME ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. I NOTED THAT IN THIS CASE THE ASSESSMENT HAS BEEN FRAMED UNDER SECTION 144 AND THIS IS A FACT THAT AF TER THE FILING OF THE REVISED RETURN BY THE ASSESSEE THE CASE HAS BEEN FIXED FOR HEARING TW O TIMES AND WHEN THE ADJOURNMENT WAS SOUGHT FOR FROM ASSESSEE SIDE. THE CASE WAS LA ST FIXED FOR HEARING ON 6.7.2007 AND ULTIMATELY WAS FIXED FOR 17.10.2007 FOR WHICH T HE ASSESSEE WAS INFORMED VIDE LETTER DATED 10.10.2007. IT IS NOT BROUGHT ON RECORD WHET HER THE SAID NOTICE HAD DULY BEEN SERVED ON THE ASSESSEE OR NOT. EVEN NO SUCH EVIDENCE WAS BROUGHT TO MY KNOWLEDGE BY THE LD. D/R. THUS I FEEL THAT THE ORDER HAS BEEN P ASSED UNDER SECTION 144 ULTIMATELY ON 2.11.2007 EX PARTE WITHOUT GIVING THE PROPER AND SU FFICIENT OPPORTUNITY TO THE ASSESSEE. I AM, THEREFORE, OF THE VIEW THAT IT WILL MEET THE ENDS OF JUSTICE IF THE ASSESSMENT IS SET ASIDE AND THE AO IS DIRECTED TO MAKE A FRESH ASSESS MENT DENOVO. I, ACCORDINGLY SET ASIDE THE ASSESSMENT AND DIRECT THE AO TO MAKE A FR ESH ASSESSMENT IN ACCORDANCE WITH LAW AFTER GIVING THE PROPER AND SUFFICIENT OPPORTUN ITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE AO AND SUBMIT ALL THE NECESSARY INFORMATION AND EVIDENCE ON WHICH HE MAY RELY BEFORE THE AO. IN CA SE THE ASSESSEE FAILS TO COMPLY WITH THE NOTICES, AS MAY BE SERVED BY THE AO, THE A O SHALL BE FREE TO MAKE THE ASSESSMENT IN A MANNER AS STATED UNDER SECTION 144 DETERMINING THE TOTAL INCOME OF THE ASSESSEE. THUS THIS GROUND IS STATISTICALLY ALL OWED. 4 ITA NO. 655/JP/2013 A.Y. 2005-06. SURESH KUMAR GUPTA VS. ITO 7. GROUND NOS. 3 & 4, IN MY OPINION DO NOT REQUIRE ANY ADJUDICATION AS I HAVE ALREADY SET ASIDE THE ASSESSMENT AND DIRECT THE AO TO MAKE A FRESH ASSESSMENT IN ACCORDANCE WITH LAW. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY STATISTICALLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4/11/2015. SD/- IH-DS-CALY ( P.K. BANSAL ) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 4/11/ 2015 DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SURESH KUMAR GUPTA, HINDAUN CIT Y. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO WARD-3, SAWAI MADHOPUR. 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 655/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 655/JP/2013 A.Y. 2005-06. SURESH KUMAR GUPTA VS. ITO