Nimmagadda Prasad, Secunderabad, Hyderabad V. DCIT, Circle-17(2), Hyderabad, Hyderabad

ITA 683/Hyd/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2930 (ITAT-HYDERABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 02-09-2021
• Assessment Year: 2008-2009
• Appeal Filed On: 17-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K A SAI PRASAD
• Section: 143(3); 142(1); 143(2); 192

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO.683/HYD/2017 ASSESSMENT YEAR: 2008-09 SRI PRASAD NIMMAGADDA, SECUNDERABAD [PAN: ABKPN3078N] VS THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-17(2), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI K.A.SAI PRASAD, AR FOR REVENUE : SHRI ROHIT MUJUMDAR, DR DATE OF HEARING : 02-09-2021 DATE OF PRONOUNCEMENT : 25-10-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2008-09 ARISES FROM TH E CIT(A)-5, HYDERABADS ORDER DATED 30-01-2017 PASSED IN CASE NO.0114 / 2015-16 / CIT(A)-5, INVOLVING PROCEEDINGS U/S. 143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961 [IN SHOR T, THE ACT]. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. WE NOTICE AT THE OUTSET THAT THE ASSESSEE HAD FILED HIS PETITION DT.11-10-2019 SEEKING TO RAISE A LEGAL GROUND THAT THE IMPUGNED ASSESSMENT ITSELF IS INVALID IN LAW SINCE FR AMED IN ABSENCE OF A VALID SECTION 143(2) NOTICE ISSUED BY TH E ASSESSING OFFICER. THE REVENUE HAS VEHEMENTLY CONTEN DED THAT ITA NO. 683/HYD/2017 :- 2 -: THE SAME IS NOT LIABLE TO BE ADMITTED SINCE GIVING A NEW TEXTURE TO ALREADY RAISED PLEADINGS. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL PLEADINGS. SUFFICE TO SAY, HON'BLE APEX COURTS LANDM ARK DECISION IN NATIONAL THERMAL POWER CO. LTD., VS., CIT [229 ITR 383] (SC); AS CONSIDERED IN TRIBUNALS SPECIAL BENCH S DECISION ALL CARGO GLOBAL LOGISTICS LTD., VS. DCIT (2012) [1 37 ITD 217](SB) (MUMBAI), HOLDS THAT TRIBUNAL CAN VERY WELL ENTERTAIN A NEW GROUND GOING TO ROOT OF THE MATTER SO AS TO D ETERMINE CORRECT TAX LIABILITY OF A TAXPAYER PROVIDED ALL RE LEVANT DOCUMENTS ARE ALREADY ON RECORD . WE GO BY THE VERY ANALOGY AND ADMIT THE ASSESSEES FOREGOING PETITION RAISING ITS ADDITIONAL SUBSTANTIVE GROUND(S). WE NEXT PROCEED TO DEAL WITH THE ASSESSEES FOREGOING LEGAL GROUND. 4. WE FIND THAT THE LEARNED ASSESSING OFFICER HAS HI MSELF FILED A REMAND REPORT DT.13-07-2021 INTER ALIA MAKING IT CLEAR THAT HE HAD ISSUED 148 NOTICE ON 21-03-2014 FOLLOWED B Y THE ASSESSEES LATTER SUBMISSIONS DT.07-01-2015 SEEKING TO TREAT THE ORIGINAL RETURN FILED ON 31-07-2008 AS THE ONE IN RESPONSE TO RE-OPENING ONLY. LEARNED ASSESSING AUTHORITY FURTHE R STATES THAT IT HAD ISSUED ONLY SECTION 142(1) NOTICE(S) DT.21-0 1-2014 AND 30-12-2014 THUS, A SECTION 143(2) NOTICE IN THE ENTIRE RE-ASSESSMENT PROCESS. WE THUS QUOTE HONBLE APEX COU RTS LANDMARK DECISION IN ACIT VS. HOTEL BLUE MOON (2010) 321 ITR 362 (SC) HOLDING THAT SECTION 143(2) NOTICE HAS TO BE MANDATORILY ISSUED BEFORE FRAMING AN ASSESSMENT. ITA NO. 683/HYD/2017 :- 3 -: 4.1. CASE LAW : I. DCIT VS. MEHTA EMPORIUM JEWELLERS, MUMBAI (2016) 74 TAXMAN.COM 239 (KERALA); II. DCIT VS. SHRI JAI SHIV SHANKAR TRADERS P LTD. 383 IT R 448 (DELHI); III. SAPTHA GIRI FINANCE & INVESTMENTS VS. ITO (2013) 90 DTR 289 (MAD); IV. CIT VS. RAJEEV SHARMA (2010) 192 TAXMANN.COM 197 (ALLAHABAD); V. PCIT VS. URMILA DEVI SHARMA (2018) (II) TMI 874 (RAJ.HC); ALSO HOLDS THAT AN ASSESSEES LETTER SEEKING TO TREAT THE O RIGINAL RETURN AS THAT FILED IN FURTHERANCE TO SECTION 148 NOTICE REQUIRES ISSUANCE OF A VALID SECTION 143(2) NOTICE. W E ACCORDINGLY HOLD IN LIGHT OF THE FOREGOING FACTS THAT TH E IMPUGNED RE-ASSESSMENT FRAME HEREIN ON 31-03-2015 IS NON EST IN LAW. THE SAME STANDS QUASHED THEREFORE. ALL OTHER PLEADINGS ON MERITS ARE RENDERED INFRUCTUOU S. 5. THIS ASSESSEES APPEAL IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 25-10-2021 TNMM ITA NO. 683/HYD/2017 :- 4 -: COPY TO : 1.SRI PRASAD NIMMAGADDA, CH.PARTHASARATHY & CO., 1-1-298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, ST.NO.1, ASHOKNAGAR, HYDERABAD. 2.THE DCIT, CIRCLE-17(2), HYDERABAD. 3.CIT(APPEALS)-5, HYDERABAD. 4.PR.CIT-5, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.