Rajya Krishi Utpadan Mandi Paarishad, Lucknow V. ITO II (2), Lucknow

ITA 670/LKW/2011

• Counselvise Citation: 67023714 RSA 2011
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-01-2014
• Assessment Year: misc
• Appeal Filed On: 11-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK MISHRA
• Assessee Lawyers: P K KAPOOR
• Keywords: Principle of natural justice; Difference of opinion

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.670/LKW/2011 A.Y.:2004 - 2005 RAJYA KRISHI UTAPADAN MANDI PARISHAD, KISAN MANDI BHAWAN, VIBHUTI KHAND, GOMTI NAGAR, LUCKNOW. PAN:AAALR0128E VS. INCOME TAX OFFICER - II(2), LUCKNOW. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI P. K. KAPOOR, C.A. RESPONDENT BY SHRI VIVEK MISHRA, CIT, D.R. DATE OF HEARING 27/01/2014 DATE OF PRONOUNCEMENT /01/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT ( A) - I, LUCKNOW DATED 26/08/2011 FOR ASSESSMENT YEAR 2004 - 05. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE THERE WAS INHERENT LACK OF JURISDICTION AT THE END OF ITO - II(2), LUCKNOW TO ACT AS ASSESSING OFFICER AND CONSEQUENTLY THE CIT(A) SHOULD HAVE ANNULLED THE ASSESSMENT ORDER DATED 29.12.2009. 2. BECAUSE IN CASE OF DIFFERENCE OF OPINION ON THE OBJECTION RAISED BY THE 'APPELLANT', TO THE JURISDICTION OF ITO - II(2), LUCKNOW TO ACT AS ASSESSING OFFICER, THE MATTER WAS TO BE NECESSARILY REFERRED BY THE SAID INCOME - TAX AUTHORITY TO THE CHIEF COMMISSIONER OF INCOME TAX/COMMISSIONER OF INCOME - TAX FOR DETERMINATION OF THE QUESTION AND IN THE ABSENCE OF SUCH A REFERENCE HAVING BEEN MADE, THE ITO - II(2), LUCKNOW ACTED WITHOUT JURISDICTION TO MAKE THE ASSESSMENT IN THE CASE OF THE APPELLANT AND CONSEQUENTLY 2 THE ASSESSMENT ORDER DATED 29.12.2009 WAS LIABLE TO BE HELD AS ILLEGAL AND NON - MAINTAINABLE IN THE EYES OF LAW. 3. BECAUSE THE NOTICE UNDER SECTION 143(2), DATED 23.10.2009 ISSUED BY THE INCOME TAX OFFICER - II(2), LUCKNOW WAS BARRED BY LIMITATION, THE 'CIT(A)' SHOULD HAVE DECLARED THE ASSESSMENT ORDER DATED 29.12.2009 AS NULL AND VOID. 4. BECAUSE OTHERWISE ALSO THE NOTICE UNDER SECTION 143(2), DATED 23.10.2009 WAS 'NO NOTICE' IN THE EYES OF LAW AS THE SAME WAS NOT DRAWN AND ADDRESSED IN THE MANNER LAID DOWN IN SECTION 282 OF THE ACT AND CONSEQUENTLY THE ASSESSMENT ORDER DATED 29.12.2009 PASSED IN PURSUANCE THEREOF WAS LIABLE TO BE HELD AS NULL AND VOID. WITHOUT PREJUDICE TO THE CONTENTION RAISED IN THE FOREGOING GROUNDS 5. BECAUSE THE ' CIT ( A)' ON A DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PARTICULARLY THAT; (A) THE 'APPELLANT' IS AN 'AOP TRUST', AS PER CLAUSE (V) OF SECTION 2(31) OF THE ACT; (B) IN THAT STATUS ONLY, IT HAD FILED THE 'RETURN' AND ALL THE ASSESSMENT RELATED PROCEEDINGS HAD BEE N INITIATED AND CONCLUDED ALSO BY ITO - 11(2), LUCKNOW, WITH REFERENCE TO THE SAID 'RETURN' ONLY; (C) THE ASSESSMENT ORDER DATED 29.12.2009 AS WAS IMPUGNED BEFORE THE 'CIT(A)' IN FIRST APPEAL HAD BEEN PASSED ON A 'PERSON' WITH THE STATUS OF 'ARTIFICIAL JURIDICAL PERSON' (AJP), WHOLLY DIFFERENT FROM THE PERSON WHO FILED THE 'RETURN'.; AND THE ' CIT ( A)' SHOULD HAVE HELD THAT THE ASSESSMENT ORDER DATED 29.12.2009 WAS NOT AT ALL ENFORCEABLE AGAINST THE 'APPELLANT'. 6. BECAUSE IN ANY CASE THE AUTHORITIES BELOW SHOULD HAVE HELD THAT LOOKING TO THE FACTS THAT; (A) THE 'APPELLANT' IS A CREATURE OF UTTAR PRADESH KRISHI UTPADAN MANDI ADHINIYAM, 1964; (B) THE STATE GOVERNMENT HAD NOT GIVEN UP ITS RIGHT TO THE PROPERTY CREATED BY THE 'APPELLANT'; AND (C) E VEN AFTER THE LAPSE OF CONSIDER ABLE PERIOD OF TIME, THE OVERALL FUNCTIONING AND AFFAIRS OF 'APPELLANT' CONTINUE TO BE WITHIN THE PURVIEW AND CONTROL OF THE STATE GOVERNMENT, THROUGH ITS OWN CADRE OF CIVIL SERVICES. 3 THE 'APPELLANT' HAS THE STATUS OF A 'STATE' AS PER ARTICLE 12 OF THE CONSTITUTION OF INDIA AND CONSEQUENTLY NO TAX COULD HAVE BEEN LEVIED ON IT IN VIEW OF ARTICLE 289 OF THE CONSTITUTION OF INDIA. 7. BECAUSE THE ORDER APPEARED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLE OF NATURAL JUSTICE. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ONLY GROUND NO. 5 IS PRESSED AND OTHER GROUNDS ARE NOT PRESSED. ACCORDINGLY, OTHER GROUNDS ARE REJECTED AS NOT PRESSED. 4. REGARDING GROUND NO. 5, A QUERY WAS RAISED BY THE BENCH AS TO WHETHER ANY APPEAL EFFECT ORDER HA S BEEN PASSED BY THE ASSESSING OFFICER FOR GIVING EFFECT TO THE ORDER OF LEARNED CIT ( A) DATED 26/08/2011. IN REPLY, THE LEARNED A.R. OF THE ASSESSEE SUBMITTED A COPY OF THE APPEAL EFFECT ORDER PASSED BY THE ASSESSING OFFICER ON 12/10/2011. AS PER THIS A PPEAL EFFECT ORDER, THE INCOME OF THE ASSESSEE WAS ASSESSED AT NIL. ON OBSERVING THIS, IT WAS POINTED OUT BY THE BENCH THAT SINCE THE INCOME OF THE ASSESSEE HAS BEEN ASSESSED AS NIL, HOW THE APPEAL OF THE ASSESSEE HAS NOT BECOME OF ACADEMIC INTEREST ONLY AND HENCE INFRUCTUOUS. IN REPLY, THE LEARNED A.R. HAD NOTHING TO SAY. ACCORDINGLY, THIS GROUND IS ALSO REJECTED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION P AGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 1 / 01/ 2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR