RAMNIRANJAN KEDIA TOURISM SERVICES P.LTD, MUMBAI V. ITO CIR 7(2)(1), MUMBAI

ITA 71/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75409 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-02-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 04-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SUTARIYA
• Assessee Lawyers: SHANKARLAL JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIJAY PAL RA O, JM ./ I.T.A. NO. 71/MUM/2012 ( / ASSESSMENT YEAR: 2002-03) RAMNIRANJAN KEDIA TOURISM SERVICES PVT. LTD. C/O. SHANKARLAL JAIN & ASSOCIATES, 12, ENGINEER BUILDING, 265, PRINCESS STREET, MUMBAI-400 002 / VS. ITO, CIRCLE 7(2)(1), MUMBAI ./ ./PAN/GIR NO. AAACR 2573 G ( ! /APPELLANT ) : ( '#! / RESPONDENT ) ! $ % / APPELLANT BY : SHRI SHANKARLAL JAIN '#! $ % / RESPONDENT BY : SHRI DEEPAK SUTARIYA & ' ( $ ) * / DATE OF HEARING : 06.02.2014 +,- $ ) * / DATE OF PRONOUNCEMENT : 06.02.2014 . / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-13, MUMBAI (CIT(A) FOR SH ORT) DATED 12.09.2011, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSES SMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMEN T YEAR (A.Y.) 2002-03 VIDE ORDER DATED 29.12.2009. 2. THOUGH THE ASSESSEES APPEAL RAISES SEVERAL GROU NDS (TEN), THE LD. AUTHORIZED REPRESENTATIVE (AR), ITS COUNSEL, WOULD AT THE VER Y OUTSET SUBMIT THAT THE ASSESSEE IS NOT PRESSING ITS GROUND NOS. 1 AND 2 AND, FURTHER, THAT ITS GROUND NO.3 RELATES TO THE NON- 2 ITA NO. 71/MUM/2012 (A.Y. 2002-03) RAMNIRANJAN KEDIA TOURISM SERVICES PVT. LTD. VS. IT O DISPOSAL OF ITS ADDITIONAL GROUND BEFORE THE LD. CI T(A), CHALLENGING THE VALIDITY OF THE ASSESSMENT INASMUCH AS NO NOTICE U/S.143(2) OF THE ACT STOOD ISSUED TO THE ASSESSEE BY THE ASSESSING OFFICER (A.O.) PRIOR TO THE COMPLETIO N OF THE IMPUGNED ASSESSMENT. THE BENCH HAD ON AN EARLIER OCCASION, ON THIS BEING POI NTED OUT THERETO, SOUGHT A REPLY FROM THE REVENUE THROUGH THE LD. DEPARTMENTAL REPRESENTA TIVE (DR). THE LD. DR, ON BEING ENQUIRED IN THE MATTER, WOULD PLACE ON RECORD A LET TER DATED 18.10.2013 BY THE LD. CIT(A) CONFIRMING THAT AN ADDITIONAL GROUND, READING AS UN DER, WAS TAKEN UP BY THE ASSESSEE BEFORE HER VIDE ITS LETTER DATED 08.09.2011, READIN G AS UNDER: 1. LD. ASSESSING OFFICER ERRED IN COMPLETING THE ASSES SMENT WITHOUT ISSUING ANY NOTICE U/S. 143(2) AND THEREBY NOT FOLL OWING LEGAL PROVISIONS IN ASSESSMENTS PROCEEDINGS AND HENCE ASSESSMENT MADE I S BAD IN LAW AND REQUIRES TO BE CANCELLED . IT IS FURTHER STATED THEREIN THAT THIS GROUND ALSO APPEARS AS GROUND NO.3, AND WHICH HAS BEEN DEALT WITH AT PARAS 2.1 AND 2.2 OF THE IMP UGNED ORDER. A COPY OF THE ORDER-SHEET, (DATED 08.12.2009 AND 29.12.2009) FROM THE ASSESSME NT FOLDER, DEEMED RELEVANT BY THE LD. CIT(A), HAS ALSO BEEN ENCLOSED ALONG-WITH. TIME WAS GRANTED TO THE LD. DR TO PLACE THE SAID MATERIAL ON RECORD AND THE MATTER POSTED F OR 06.02.2014, WHEREAT THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND, WHICH READS AS UN DER: LD. ASSESSING OFFICER ERRED IN COMPLETING THE ASSES SMENT WITHOUT ISSUING ANY NOTICE U/S. 143(2) AND THEREBY NOT FOLLOWING LE GAL PROVISIONS IN ASSESSMENTS PROCEEDINGS AND HENCE ASSESSMENT MADE I S BAD IN LAW AND REQUIRES TO BE CANCELLED . 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE ASSESSEES GROUND NO.3 AND ITS ADDITIONAL GROUND NO.1 NOW ASSU MED BEFORE US RAISE IN SUBSTANCE THE SAME ISSUE, I.E., THE VALIDITY IN LAW OF THE IMPUGN ED ASSESSMENT IN THE ABSENCE OF THE ISSUE OF NOTICE U/S.143(2), CLAIMED TO HAVE NOT BEEN ISSU ED, UNDER THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. THE SAME RAISES A LEGAL QUESTION, GOING TO THE ROOT OF THE MATTER, I.E., THE VALIDITY OR OTHERWISE OF THE IMPU GNED ASSESSMENT IN LAW, AND IS THEREFORE ADMITTED. FURTHER, THE MATTER HAVING BEEN ADMITTEDL Y RAISED EVEN BEFORE THE LD. CIT(A), WHO HAS HOWEVER NOT DISPOSED OFF THE SAME, WE ONLY CONSIDER IT FIT AND PROPER UNDER THE CIRCUMSTANCES TO RESTORE THE ASSESSEES APPEAL BACK TO THE FILE OF THE LD. CIT(A) FOR AN 3 ITA NO. 71/MUM/2012 (A.Y. 2002-03) RAMNIRANJAN KEDIA TOURISM SERVICES PVT. LTD. VS. IT O ADJUDICATION OF THE ASSESSEES ADDITIONAL GROUND BE FORE HER, I.E., VIDE LETTER DATED 08.09.2011 (SUPRA). WE ARE NOT IN AGREEMENT WITH TH E LD. CIT(A) WHEN SHE SAYS THAT THE SAME RAISES THE SAME QUESTION AS RAISED BY THE ASSE SSEE PER ITS GROUND NO. 3 BEFORE HER; PER THE SAME (REPRODUCED AT PG.1 OF THE IMPUGNED OR DER) THE ASSESSEE CHALLENGING THE REOPENING OF THE ASSESSMENT BY THE ISSUE OF NOTICE U/S.148 INASMUCH AS NO NOTICE U/S.143(2) HAD BEEN ISSUED PRIOR THERETO. THE SAME RAISES AN ALTOGETHER DIFFERENT ISSUE, AND WHICH STANDS CONSIDERED AND ADJUDICATED UPON BY THE LD. CIT(A) VIDE PARA 2 OF HER ORDER, ADVERTING TO THE DECISION BY THE APEX COURT IN THE CASE OF ASST. CIT V. RAJESH JHAVERI STOCK BROKERS (P.) LTD . [2007] 291 ITR 500 (SC). THE LD. CIT(A) SHALL DEC IDE THE ASSESSEES ADDITIONAL GROUND BEFORE HER PER A SPEAK ING ORDER AFTER HEARING BOTH THE PARTIES. THE APPEAL IS ACCORDINGLY RESTORED BACK TO HIS FILE FOR THE PURPOSE. THIS SHALL BE WITHOUT PREJUDICE TO THE ASSESSEES CASE ON OTHER I SSUES, WHICH THOUGH WE DO NOT CONSIDER NECESSARY TO DECIDE AT THIS STAGE AND ARE, THEREFOR E, LEFT OPEN. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. /- )0 '1 2/) $ 3$ 456 7 8 9 ) $ ) :; ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 06, 2014 SD/- SD/- (VIJAY PAL RAO) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER & <( MUMBAI; =' DATED : 11.02.2014 .'../ ROSHANI , SR. PS 4 ITA NO. 71/MUM/2012 (A.Y. 2002-03) RAMNIRANJAN KEDIA TOURISM SERVICES PVT. LTD. VS. IT O !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT 3. & >) ( ) / THE CIT(A) 4. & >) / CIT CONCERNED 5. A B ')'C1 , * C1- , & <( / DR, ITAT, MUMBAI 6. B D2 E ( / GUARD FILE !' ) / BY ORDER, */)+ , (DY./ASSTT. REGISTRAR) , & <( / ITAT, MUMBAI