Jafar Khan, Lucknow V. Income Tax Officer-2(1), Lucknow

ITA 738/LKW/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3959 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-10-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 08-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 142(1); 147; 144

Judgement Text

I.T.A. NOS.738 TO 740/LKW/15 ASSESSMENT YEAR:2010-2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI P. K. BANSAL, ACCOUNTANT MEMBER AND SHRI ABY T. VARKEY, JUDICIAL MEMBER ITA NOS.738 TO 740/LKW/2015 ASSESSMENT YEAR:2010-2011 SHRI ZAFAR KHAN, C-4/8, PAPER MILL COLONY, NISHATGANJ, LUCKNOW. PAN:AHFPK4995E VS. INCOME TAX OFFICER-2(1), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER P. K. BANSAL, A.M. ALL THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF CIT(A)-1, LUCKNOW ALL DATED 31/08/2015 RE LATING TO ASSESSMENT YEAR 2010-2011. 2. THE APPEAL IN I.T.A. NO.740/LKW/2015 IS AGAINST THE SUSTENANCE OF ADDITION MADE IN THE ASSESSMENT ORDER PASSED U/S 14 4 OF THE ACT THEREFORE, WE DECIDED TO DISPOSE OF THIS APPEAL FIRST. IN THI S APPEAL THE ASSESSEE HAS TAKEN THE GROUND BEING GROUND NO. 2 WHICH GOES TO T HE ROOT OF THE VALIDITY OF THE ASSESSMENT THEREFORE, WE DECIDED TO DISPOSE OF GROUND NO. 2 WHICH READS AS UNDER: APPELLANT BY SHRI M. P. MISHRA, ADVOCATE SHRI SHAILENDRA MISHRA, ADVOCATE ASSESSEE BY SHRI AMIT NIGAM, D. R. DATE OF HEARING 18/10/2016 DATE OF PRONOUNCEMENT 19 /10/2016 I.T.A. NOS.738 TO 740/LKW/15 ASSESSMENT YEAR:2010-2011 2 2. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AS WEL L AS ON FACTS IN FAILING TO APPRECIATE THAT E-FILED RETURN OF INCOME WAS ON RECORD AND THE IMPUGNED ASSESSMENT ORDER PASSED U/S 144/147 OF THE I.T. ACT IS INVALID, SINC E NO NOTICE U/S 143(2) OF THE I.T. ACT WAS ISSUED BY THE ASSESSING OFFICER. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, CAREFULLY C ONSIDERED THE SAME ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. WHEN WE ASKED LEARNED D. R. TO PRODUCE THE COPY OF THE ASSESSMENT RECORD SO THAT IT CAN BE ASCERTAINED WHETHER ANY NOTICE U/S 143(2) OF THE AC T HAS BEEN ISSUED ON THE ASSESSEE OR NOT, LEARNED D. R. PRODUCED THE ASSESSM ENT RECORD AND WAS FAIR ENOUGH TO CONCEDE THAT NO NOTICE U/S 143(2) HA S BEEN ISSUED TO THE ASSESSEE. SINCE NO NOTICE U/S 143(2) HAS BEEN ISSU ED TO THE ASSESSEE BUT ONLY THE NOTICE U/S 142(1) HAS BEEN ISSUED THEREFOR E, AN ILLEGALITY HAS CREPT INTO THE ASSESSMENT ORDER PASSED BY THE ASSESSING O FFICER U/S 144 READ WITH SECTION 147 OF THE ACT. THE ISSUE INVOLVED IS DULY COVERED BY THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF U. P. HOTELS LTD. IN WHICH THE HON'BLE HIGH COURT HAS CLEARLY HELD THAT IN CASE TH E NOTICE U/S 143(2) IS NOT ISSUED TO THE ASSESSEE, THE ASSESSMENT FRAMED WITHO UT ISSUING THE NOTICE U/S 143(2) WITHIN THE PERMISSIBLE TIME WILL BE THE NULLITY. WHILE DECIDING THE ISSUE IN THE CASE OF U.P. HOTELS LTD., HON'BLE HIGH COURT HAS RELIED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CI T & ANOTHER VS. HOTEL BLUE MOON AS REPORTED IN [2010] 321 ITR 362 (SC). SINCE IN THIS CASE NO NOTICE U/S 143(2) HAS BEEN ISSUED OR SERVED ON THE ASSESSEE THEREFORE, WE QUASH THE ASSESSMENT. THUS, GROUND NO. 2 IS ALLOWE D. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 5. I.T.A. NO.739 AND 738 RELATE TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT(1)(C) AND 271B OF THE ACT. SINCE WE HAVE ALREA DY QUASHED THE ASSESSMENT THEREFORE, NO QUESTION OF LEVYING THE PE NALTY ON THE ASSESSEE I.T.A. NOS.738 TO 740/LKW/15 ASSESSMENT YEAR:2010-2011 3 EITHER U/S 271(1)(C) OF THE ACT(1)(C) OR U/S 271B W ILL ARISE. THE ORDER PASSED U/S 271(1)(C) OF THE ACT(1)(C) AND 271B LEVY ING THE PENALTY ON THE ASSESSEE SHALL STAND INVALID. WE ACCORDINGLY QUASH BOTH THE ORDERS AND ALLOW BOTH THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE S TAND ALLOWED. SD/. SD/. ( ABY T. VARKEY ) ( P. K. BANSAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:10/10/2016 *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