Sajan Kumar Jain, Delhi V. DCIT,Central circle-25, New Delhi

ITA 6793/DEL/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0375 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2016-2017
• Appeal Filed On: 26-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 132; 143(3); 142(1); 143(1); 143(2); 139(1); 22

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI G BEN CH, NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 6793/DEL/2018 [ASSESSMENT YEAR: 2016-17] SAJAN KUMAR JAIN VS. THE DY. C.I.T C/O KAPIL GOEL, ADV CENTRAL CIRCLE- 25 F-26/124, SECTOR 7, NEW DELHI ROHINI, DELHI PAN: ACSPJ 6904 A [APPELLANT] [RESPONDENT] DATE OF HEARING : 15.03.2021 DATE OF PRONOUNCEMENT : 16.03.2021 ASSESSEE BY : SHRI KAPIL GOEL, ADV REVENUE BY : SHRI AMITABH KUMAR SINHA, CIT-DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEAL S]-29, NEW DELHI DATED 10.09.2018 PERTAINING TO ASSESSMENT YEAR 2016 -17. 2 2. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE CHAL LENGED THE JURISDICTION OF THE ASSESSING OFFICER BY RAISING TH E FOLLOWING ADDITIONAL GROUND OF APPEAL: THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, ID CIT-A ERRED IN SUSTAINING THE ORDER PASSED BY LD AO U/S 143(3) WITHOUT APPRECIATING THAT AS STATED IN OPENING PORT ION OF IMPUGNED ASSESSMENT ORDER REGULAR RETURN U/S 139(1) OF THE A CT WAS SUBMITTED ON 20.03.2017 AND NOTICE U/S 143(2) IS AD MITTEDLY ISSUED ON 16/10/2017 AS NOTED AT SECOND PAGE OF ASSESSMENT ORDER, WHICH IS MANIFESTLY TIME BARRED AS LAST DATE FOR ISSUANCE OF NOTICE U/S 143(2) AS RECKONED FOR PERIOD UNDER CONSIDERATION ( WHICH IS SEARCH YEAR) FROM 31.03.2017 WOULD BE 30.09.2017 AND SO NO TICE U/S 143(2) ISSUED ON 16/10/2017 IS TIME BARRED AND ACCO RDINGLY ASSESSMENT FRAMED U/S 143(3) AND ORDER OF CIT-A MAY PLEASE BE QUASHED. 3. ADMITTEDLY, THIS ISSUE WAS NEVER RAISED BEFORE T HE LOWER AUTHORITIES. BUT SINCE THE CHALLENGE TO THE JURISD ICTION OF THE ASSESSING OFFICER GOES TO THE ROOT OF THE MATTER, IN LIGHT OF THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF NTPC 229 ITR 383, THE SAME DESERVES TO BE ADMITTED AND ADJUDICATED. ACCO RDINGLY, THE ADDITIONAL PLEA RAISED FOR THE FIRST TIME IS ADMITT ED, SINCE IT REQUIRES 3 NO VERIFICATION OF FACTS AND THE FACTS ARE VERY MUC H IN THE BODY OF THE ASSESSMENT ORDER IN THE FIRST PAGE ITSELF. 4. THE CHALLENGE IS IN RESPECT OF VALIDITY OF NOTIC E ISSUED U/S 143(2) OF THE ACT, WHICH ACCORDING TO THE ASSESSEE, IS BAR RED BY LIMITATION. 5. FACTS ON RECORD SHOW THAT THE ORIGINAL RETURN OF INCOME U/S 139(1) OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REF ERRED TO AS 'THE ACT'] WAS FILED ON 20.03.2017 DECLARING INCOME OF R S. 6.22 CRORES. THE SAID RETURN OF INCOME WAS PROCESSED U/S 143(1) OF T HE ACT ON 20.05.2017. SUBSEQUENTLY, PURSUANT TO SEARCH AND S EIZURE OPERATION U/S 132 OF THE ACT, WHICH WAS CARRIED OUT ON 18.11. 2015, THE CASE OF THE APPELLANT WAS CENTRALISED FROM CIRCLE -1 FARIDA BAD TO CENTRAL CIRCLE 25, NEW DELHI. 6. CONSEQUENTLY, THE NOTICE U/S 142(1) OF THE ACT W AS ISSUED ON 22.09.2017 ASKING THE ASSESSEE TO FILE RETURN WITHI N 15 DAYS OF RECEIPT OF NOTICE. THE SAID NOTICE READS AS UNDER: 4 OFFICE OF THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 25,ROOM NO. 322, 3 RD FLOOR, E-2, ARA CENTER, JHANDEWALAN EXTENSION, NE W DELHI. NOTICE UNDER SECTION 142(1) OF THE INCOME TAX ACT, 1961 FAN: ACSPJ6904A SIT. SAJAN KUMAR JAIN, H.NO. 1443-1446, SECTOR-14, FARIDABAD, HARYANA IN CONNECTION WITH THE ASSESSMENT FOR THE ASSESSMEN T YEAR 2016-17 YOU ARE REQUIRED TO: - (A) PREPARE A TRUE AND CORRECT RETURN OF YOUR INCO ME/ THE FIRMS INCOME/ FAMILYS INCOME/ THE LOCAL AUTHORITYS INCOME/ THE COMPANYS INCOME/ INCOME OF THE A.O.P./ INCOME OF THE BODY OF INDIVIDUALS/ INCOME OF A.Y. 2016-17 IN RESPECT OF WHICH YOU ARE ASSESSABLE UNDE R THE INCOME TAX ACT, 1961, FOR THE PREVIOUS YEAR REL EVANT TO THE ASSESSMENT YEAR MENTIONED ABOVE. THE RETURN SHOULD BE IN THE APPROPRIATE FORM AS PRESCRIBED IN RULE 12 OF. THE INCOME TAX RULES, 1962. IT SHOULD BE DULY VERIFIED AND SIG NED IN ACCORDANCE WITH THE' PROVISIONS OF SECTION 140 OF THE INCOME TAX ACT, 1961 AND SHOULD BE DELIVERED AT MY OFFICE ON OR BEFORE 09-10-2017. (B) PRODUCE OR CAUSE TO PRODUCE BEFORE ME AT MY OFFICE AT NEW DELHI ON 09-10- 2017 AT 11:00 AM, THE ACCOUNTS AND OR DOCUMENTS AS SPECIFIE D IN THE LETTER ANNEXED HEREWITH. (C) . FURNISH IN WRITING AND VERIFIED IN THE PRESCRIBED MANNER, INFORMATION CALLED FOR AS PER COMBINED QUESTIONNAIRE FOR ................. MA Y BE FILED WHICH ARE RELEVANT TO THE ASSESSMENT YEAR 2016-17 DATED - AND ON THE POINT OR MATTERS S PECIFIED THEREIN, BEFORE ME AT MY OFFICE AT NEW DELHI ON 09-10-2017 AT 11:00 AM. YOURS FAITHFULLY (RAMESH KUMAR) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-25, NEW DELHI CERTIFIED TRUE COPY RAMESH KUMAR DY.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-25, NEW DELHI DATED: 22 - 09 - 2017 5 7. A PERUSAL OF THE AFOREMENTIONED NOTICE SHOWS THA T THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO FURNISH HIS RETURN OF INCOME. AS MENTIONED ELSEWHERE, THE ASSESSEE HAD ALREADY FILED RETURN OF INCOME ON 20.03.2017 WHICH WAS PROCESSED U/S 143(1) OF THE ACT ON 20.05.2017. THESE GLARING FACTS ARE VERY MUCH AVAI LABLE ON THE FACE OF THE ASSESSMENT ORDER WHICH HAVE BEEN TOTALLY IGNORE D BY THE ASSESSING OFFICER WHILE ISSUING NOTICE U/S 142(1) OF THE ACT DATED 22.09.2017. 8. SUBSEQUENTLY, NOTICE U/S 143(2) OF THE ACT WAS I SSUED ON 16.10.2017. ONCE AGAIN, THE ASSESSING OFFICER COMP LETELY IGNORED THE FACT THAT NOTICE U/S 143(2) OF THE ACT WAS TO BE IS SUED AND SERVED UPON THE ASSESSEE WITHIN SIX MONTHS FROM THE END OF THE F.Y. IN WHICH THE RETURN OF INCOME WAS FILED, I.E. 20.03.2017. THIS MAKES THE NOTICE ISSUED U/S 143(2) OF THE ACT BARRED BY LIMITATION. 9. IN OUR CONSIDERED OPINION, ONCE A VALID RETURN O F INCOME WAS AVAILABLE ON RECORD, WHICH WAS ALREADY PROCESSED IS SUING NOTICE U/S 142(1) OF THE ACT ASKING THE ASSESSEE TO FURNISH FR ESH NOTICE IN ITSELF IS INVALID MAKING SUBSEQUENTLY PROCEEDINGS VOID AB INI TIO. 6 10. CONSIDERING THE FACTS OF THE CASE IN TOTALITY I N LIGHT OF THE RELEVANT PROVISIONS OF THE ACT DISCUSSED HEREINABOV E, WE ARE INCLINED TO QUASH THE ASSESSMENT ORDER DATED 29.12.2017 FRAM ED U/S 143(3) OF THE ACT FOR WANT OF JURISDICTION AS NOTICE ISSUED U /S 143(2) OF THE ACT IS BARRED BY LIMITATION. SINCE WE HAVE QUASHED THE ASS ESSMENT ORDER ON THE VALIDITY OF JURISDICTION, WE DO NOT FIND IT NEC ESSARY TO DWELL INTO THE MERITS OF THE CASE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IN ITA NO. 6793/DEL/2018 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.03. 2021. SD/- SD/- (BHAVNESH SAINI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16 TH MARCH, 2021. VL/ 7 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT, NEW DELHI 5. DR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER