M/s. SHREE GEBI ENTERPRISE, MUMBAI V. ITO - 25(3)(3), MUMBAI

ITA 6703/MUM/2006

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1606 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 21-10-2009
• Assessment Year: 1992-1993
• Appeal Filed On: 11-12-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR U ANJANEYULU
• Keywords: Principle of natural justice
• Section: 143(3); 143(1); 139(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH: MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI V D RAO, JUDICIAL MEMBER ITA NO 6703/MUM/2006 (ASSESSMENT YEAR: 1992-93) SHREE GEBI ENTERPRISE , 107/108, SUPER SHOPPING COMPLEX, 1ST FLOOR, BAJAJ CROSS ROAD, KANDIVLI (W), MUMBAI -400 067 PAN: AABFS 3279 A VS ITO-25(3)(3) , C-11, PRATYAKSHAKAR BHAVAN, THIRD FLOOR, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI -400 051 APPELLANT RESPONDENT APPELLANT BY: SHRI PRAMOD KUMAR PARIDA RESPONDENT BY: DR U ANJANEYULU ORDER PER PRAMOD KUMAR 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CHALLENG ED CORRECTNESS OF CIT (A)S ORDER DATED 12TH OCTOBER 2006 ON THE FOLLOWING GROU NDS:- 1. NOTICES ISSUED U/S 148 DATED 28.03.2000 SERVED FOR THE ASSESSMENT YEAR 1992-1993 IS NOT JUSTIFIED FOR THE REASON THAT THE NOTICE IS TIME BARRED AND DEFECTIVE AS THE VALID RETURN FILED U/S 139(1) ON 03.11.1992 AND THE SAME HAS BEEN PROCESSED U/S 143(1) ON 19.04.1993 AND THE CHEQUE FOR THE REFUND HAVE BEEN ISSUED AND FURTHER TO THIS THE CASE HAS B EEN SCRUTINIZED AND NOTICE U/S 148 DATED 21.01.1997 WAS SERVED AND THE ASSESSM ENT WAS COMPLETED U/S 143(3). SECOND TIME THE NOTICE IS ISSUED U/S 148 D ATED 28.03.2000 IS NOT JUSTIFIED FOR THE REASON THAT ALL THE DETAILS WERE AVAILABLE AND ALL THE MATERIAL WERE ALREADY IN POSSESSION WITH THE ASSESSING OFFIC ER WHILE PASSING AN ORDER U/S 143(3) ON 07.03.1997. SECOND NOTICE ISSUED U/S 148 IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE. 2. NO VALID REASON HAS BEEN COMMUNICATED INSPITE OF THE RETURN REQUEST SUBMITTED BEFORE THE ASSESSING OFFICER. 3. THE CIT (A)XXV HAS CONFIRM CERTAIN ADDITIONS IS NOT JUSTIFIED AS EVIDENCE PRODUCE BEFORE HER HAS NOT BEEN CONSIDERED AND ADDI TIONS TO THE TUNE OF RS 4,00,000/- HAS BEEN CONFIRMED VIZ 1,25,000/- 75,000 /-, AND RS 2,00,000/- THESE TRANSACTIONS ARE NOT RELATED TO THE APPELLANT FIRM AND EVIDENCE IGNORE. SHREE GEBI ENTERPRISE 2 4. THE APPELLANT FIRM IS AN EXPORTER. THE BENEFITS PROVIDED U/S 80 HHC HAS NOT BEEN OFFERED ON THE ADDITIONS SUSTAINED BY THE ASSESSING OFFICER AND BY THE CIT (A) XXV. 5. PENALTY LEVIED U/S 234(A), 234(B) 234(C) ARE NOT JUSTIFIED WITH REFERENCE TO THE CIRCUMSTANCES THOUGH IT IS CONSEQUENTIAL IN NATURE. 2. DURING THE COURSE OF HEARING, IT WAS NOTICED THA T THE REASONS OF REOPENING THE ASSESSMENT ARE NOT AS YET SUPPLIED TO THE ASSESSEE. LEARNED DEPARTMENTAL REPRESENTATIVES DOES NOT DISPUTE THIS FACTUAL POSIT ION. HE, HOWEVER, PINTS OUT THAT THE CIT (A) HAS, IN PARAGRAPH 4 OF THE IMPUGNED ORD ER, INDICATED THE REASONS OF REOPENING. 3. WE HAVE NOTICED THAT, AS EVIDENT FROM THE STATEM ENT OF FACTS, FITTED BEFORE THE CIT (A), IT HAS ALL ALONG BEEN ASSESSEES CASE THAT DESPITE HIS SPECIFIC REQUISITIONS, THE REASONS OF REOPENING THE ASSESSMENT HAVE NOT BE EN FURNISHED TO HIM. LEARNED COUNSEL HAS ALSO STATED AT THE BAR THAT THE REASONS OF REOPENING ARE YET TO RECEIVED BY THE ASSESSEE. 4. IN THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING H ONBLE SUPREME COURTS JUDGMENT IN THE CASE OF G K N DRIVESHAFTS (INDIA) L TD VS ITO (259 ITR 19), WE DIRECT THE ASSESSING OFFICER TO FURNISH THE REASONS OF REO PENING THE ASSESSMENT TO THE ASSESSEE, AND ASSESSEES OBJECTIONS, IF ANY, TO SUC H REOPENING PROCEED TO FRAME THE ASSESSMENT. WITH THESE DIRECTIONS, THE MATTER STAN DS RESTORED TO THE FILE OF THE AO. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 26TH OCT OBER 2009. SD/- (V D RAO) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATE: 26TH OCTOBER 2009 SHREE GEBI ENTERPRISE 3 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-XXV, MUMBAI. 4) THE CIT XXV, MUMBAI. 5) THE D.R. E BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR CHAVAN* I.T.A.T., MUMBAI SHREE GEBI ENTERPRISE 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 26.10.09 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 26.10.09 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER