RAJENDRA KUMAR GODHIKA HUF, Jaipur V. ITO, Jaipur

ITA 664/JPR/2014

• Counselvise Citation: 66423114 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 26-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA
• Keywords: Period of limitation
• Section: 147; 148

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. 664/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2003-04 RAJENDRA KUMAR GODHIKA HUF, 607 ROSHAN SADAN, BORDIA KA RASTA, KISHANPOLE BAZAR, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 1(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AAGHR 2830 B VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : NONE (NOTICE RETURNED UNSERVED) JKTLO DH VKSJ LS @ REVENUE BY : SHRI O.P. BHATEJA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/11/2015 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 05/11/2015 VKNS'K @ ORDER PER P.K. BANSAL, A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 27/06/2014 PASSED BY THE LD CIT(A)-I, JAIPUR FOR A.Y . 2003-04. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE, I, THER EFORE, DECIDED TO DISPOSE OFF THE APPEAL AFTER HEARING THE LD DR. ITA 664/JP/2014_ RAJENDRA KUMAR GODHIKA HUF VS ITO 2 3. THE ONLY ISSUE INVOLVED IN THIS APPEAL FILE D BY THE ASSESSEE IS WHETHER THE REASSESSMENT MADE BY THE ASSESSING OFFIC ER IS VALID OR NOT. AFTER HEARING THE LD DR AND GOING THROUGH THE ORDER OF THE TAX AUTHORITIES BELOW, I NOTED THAT IN THIS CASE, THE ASSESSMENT HAS BEEN FRAMED IN THE STATUS OF HUF BUT THE PROCEEDINGS U/S 147 OF THE IN COME TAX ACT, 1961 (IN SHORT THE ACT) HAS BEEN INITIATED AGAINST RAJEN DRA KUMAR GODIKA AS THE NOTICE DATED 29/03/2010 IS IN THE NAME OF SHRI RAJENDRA KUMAR, 607, BORDI KA RASTA, JAIPUR, WHICH WAS DULY SERVED THROUGH THE NOTICE SERVER ON 30/03/2010. NO PERMANENT ACCOUNT NUMBER (PAN) WAS MENTIONED ON THE NOTICE. IT IS A FACT THAT NO NOTICE INITIATED T HE PROCEEDINGS U/S 148 OF THE ACT HAS BEEN ISSUED IN THE STATUS OF HUF. INDIV IDUAL AS WELL AS HUF BOTH ARE THE DIFFERENT ASSESSEES. THE NOTICE PRESCRI BED BY SECTION 148 OF THE ACT CANNOT BE REGARDED AS A MERE PROCEDURE REQU IREMENT IF NO NOTICE IS ISSUED TO THE ASSESSEE AND IF THE NOTICE IS SHOWN TO BE INVALID THEN THE PROCEEDINGS TAKEN BY THE ASSESSING OFFICER WOULD B E ILLEGAL, ISSUANCE OF NOTICE WITHIN THE PERIOD OF LIMITATION GIVE JURISDIC TION TO THE ASSESSING OFFICER TO PROCEED TO MAKE REASSESSMENT. WHEN THE S IMILAR QUESTION HAS ARISEN BEFORE THE HONBLE ALLAHABAD HIGH COURT IN T HE CASE OF CIT VS. ASHOK KUMAR BHARTI AND VIJAY KUMAR GOYAL [2006] 282 ITR 496 (ALL) TOOK ITA 664/JP/2014_ RAJENDRA KUMAR GODHIKA HUF VS ITO 3 THE VIEW THAT THE REASSESSMENT IS NOT VALID. IN THA T CASE THE ASSESSING OFFICER ISSUED NOTICE U/S 148 OF THE ACT TO A.V. & G AS THE MEMBERS OF THE ASSOCIATION OF PERSONS. HOWEVER THE REASSESSMENT WAS MADE ON THE ASSOCIATION OF PERSONS COMPRISING OF TWO PERSONS NAM ELY A&V, THE NAME OF G THOUGH DULY MENTIONED IN THE ASSESSMENT ORDER AS A MEMBER OF ASSOCIATION OF PERSON, IT WAS SCORED OUT. WHEN THE M ATTER TRAVELLED TO THE HON'BLE HIGH COURT, THE HONBLE COURT HELD THAT THE NOTICE ON THE BASIS OF WHICH THE ASSESSMENT ORDER WAS MADE, WAS ISSUED IN THE NAMES OF THREE PERSONS NAMELY A, V & G IN THE STATUS OF AOP, WHICH COULD NOT BE MADE THE BASIS FOR MAKING ASSUMPTION IN THE NAMES OF A&V IN THE STATUS OF AOP. THE HON'BLE HIGH COURT HELD ASSESSMENT TO BE IN VALID. THE NOTICE U/S 148 IS A JURISDICTIONAL NOTICE. IT IS NOT A NOT ICE FOR REGULAR ASSESSMENT AND ON THE ISSUE OF NOTICE U/S 148 OF THE ACT, THE ASSESSING OFFICER HAS ASSUMED THE JURISDICTION TO PROCEED AND PASS THE AS SESSMENT ORDER. THEREFORE, THE ISSUE AND SERVICE OF THE VALID NOTICE U/S 148 OF THE ACT TO THE ASSESSEE AGAINST WHOM ACTION IS BEING PROPOSED T O BE TAKEN AND FINALLY THE ASSESSMENT ORDER IS BEING PASSED IS ESS ENTIAL. IT IS SETTLED LAW THAT NONE OF THE PARTIES CAN PROVIDE ANY JURISDICTI ON TO THE AUTHORITY AND EVEN WAIVER ON THE PART OF THE ASSESSEE TO ISSUE OR SERVICE OF NOTICE ITA 664/JP/2014_ RAJENDRA KUMAR GODHIKA HUF VS ITO 4 WOULD NOT CONFIRM JURISDICTION TO PROCEED AND MY SAI D VIEW IS DULY SUPPORTED BY THE DECISION OF THE HON'BLE SUPREME CO URT IN THE CASE OF Y. NARAYANA CHETTY AND ANOTHER VS. INCOME-TAX OFFICER, NELLORE, AND OTHERS [1959] 35 ITR 388 (SC). 4. I ALSO NOTED THAT IN THE CASE OF GOKUL CHAND VS INCOME-TAX OFFICER [1995] 211 ITR 738 (ALL), THE DIVISION BENCH OF THE HONBLE ALLAHABAD HIGH COURT HAS HELD THAT WHERE A PERSON H AS DUAL CAPACITY AS AN INDIVIDUAL AS WELL AS KARTA OF HUF, IT IS NECESSA RY TO SPECIFICALLY MENTIONED IN THE NOTICE OF REASSESSMENT, THE CAPACI TY IN WHICH THE ASSESSEE IS SOUGHT TO BE REASSESSED. IN ABSENCE OF STATUS BEING MENTIONED IN THE NOTICE, IT WAS HELD INVALID. SIMILA R VIEW HAS BEEN TAKEN BY THE HON'BLE HIGH COURT IN THE CASE OF CIT VS. ISH WAR SINGH & SONS, IN THIS CASE, THE NOTICE U/S 148 OF THE ACT WAS ISSUED IN THE STATUS OF INDIVIDUAL, RETURNED WAS FILED BY THE BROTHER OF IND IVIDUAL AS KARTA OF HUF. THE ASSESSMENT IN THE STATUS OF HUF HAS BEEN HELD IN VALID FOR WANT OF VALID NOTICE U/S 148 OF THE ACT. I ALSO NOTED THAT THE SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE KERALA HIGH COURT IN THE CASE OF P. N. SASIKUMAR AND OTHERS VS. COMMISSIONER OF INCOME-TAX [1988] 170 ITR 80 (KER) IN WHICH IT WAS HELD THAT THE NOTICE U/S 148 IS A ITA 664/JP/2014_ RAJENDRA KUMAR GODHIKA HUF VS ITO 5 CONDITION PRECEDENT TO THE VALIDITY OF THE REASSESS MENT, THE NOTICE FOR REASSESSMENT ISSUED TO INDIVIDUAL (S) NOT SPECIFIED WHETHER IT WAS ISSUED TO PRINCIPAL OFFICER OR A PRINCIPAL OF AN AOP CONSI STING OF (5) AND OTHERS. THE ASSESSMENT ORDER MADE IN THE STATUS OF AOP CONSI STING OF (5) AND OTHERS HAS BEEN HELD INVALID. NONE ISSUANCE OF A VA LID NOTICE IS AN ILLEGALITY AND CANNOT BE CURED. THE PROVISION OF SE CTION 292BB WILL NOT IN MY OPINION ASSIST THE REVENUE AS THESE PROVISIONS A RE FOR REGULARIZING THE SERVICE OF THE NOTICE. THE CASE OF THE ASSESSEE RELA TE TO ISSUANCE OF NOTICE, WHICH GIVES THE JURISDICTION FOR INITIATING THE PROCEEDINGS U/S 147. I, THEREFORE, QUASH THE ORDER PASSED BY THE ASSESSI NG OFFICER. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/11/2015. SD/- IH-DS-CALY (P.K. BANSAL) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 05 TH NOVEMBER, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- RAJENDRA KUMAR GODHIKA HUF, JAIPUR. ITA 664/JP/2014_ RAJENDRA KUMAR GODHIKA HUF VS ITO 6 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 1(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 664/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR