ITO 23(1)(2), MUMBAI V. ASHOK C. SHAH, MUMBAI

ITA 766/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88342 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Department
• Bench Allotted: I
• Next Hearing Date: 28-01-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 27-01-2011
• Court: TRIBUNAL
• Department Lawyers: SACHCHIDANAND DUBE
• Keywords: Assessment record
• Section: 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ./I.T.A. NO. 766/M/2011 ( AY: 2005 - 2006 ) ITO - 23(1)(2), BLDG. NO.103, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051. / VS. SHRI ASHOK C. SHAH, M/S. ANAMIKA MENS WEAR, 1, LAKADWALA CHAWL, STATION ROAD, BHANDUP (W), MUMBAI - 78. ./ PAN : AAEPS1476Q ( / APPELLANT) .. ( / RESPONDENT ) ./I.T.A. NO. 1704/M/2011 ( AY: 2005 - 2006 ) SHRI ASHOK C. SHAH, M/S. ANAMIKA MENS WEAR, 1, LAKADWALA CHAWL, STATION ROAD, BHANDUP (W), MUMBAI - 78. / VS. ITO - 23(1)(2), BLDG. NO.103, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051. / A SSESSEE BY : SHRI NISHIT GANDHI / REVENUE BY : SHRI SACHCHIDANAND DUBE, DR / DATE OF HEARING : 29 .1.2015 / DATE OF PRONOUNCEMENT 20 .2 .2015 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION AND THEY ARE CROSS APPEALS. BOTH THESE APPEALS ARE FILED AGAINST THE ORDER OF THE CIT (A) - 33, MUMBAI DATED 29.11.2010 FOR THE ASSESSMENT YEAR 2005 - 2006. SINCE, THE ISSUES RAISED IN BOTH THE APPEALS ARE CONNECTED, THEREFORE, BOTH THESE APPEALS ARE HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE SUCCEEDING PARAGRAPHS OF THIS ORDER. 2. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RETAILER OF HOSIERY MENS WEAR. ASSESSEE FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 1,30,100/ - . ASSESSING OFFICER COMPLETED THE 2 ASSESSMENT U/S 143(3) OF THE ACT DETERMINING THE TOTAL INCOME OF RS. 23,87,140/ - . IN THE ASSESSMENT ASSESSING OFFICER MADE CERTAIN DISALLOWANCES AND RS. 15,15,758/ - IS ONE OF THEM MADE ON ACCOUNT OF UNE XPLAINED INVESTMENT IN STOCK. ON APPEAL, CIT (A) GRANTED PART RELI EF TO THE ASSESSEE. AGGRIEVED WITH THE DECISION OF THE CIT (A), BOTH THE ASSESSEE AND THE REVENUE ARE IN APPEAL BEFORE THE TRIBUNAL. 3. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ADDITIONAL GROUND AND THE APPLICATION WITH THE PRAYER FOR ADMITTING THE SAID ADDITIONAL GROUND. IN THIS REGARD, LD COUNSEL MENTIONED THAT THE SAID ADDITIONAL GROUND CONSTITUTES A LEGAL GROUND AND IT RELATES TO THE SERVICE OF STATUTORY NOTICE AND THE SAME IS REQUIRED TO BE ADMITTED. THE SAID ADDITIONA L GROUND READS AS UNDER: IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT FRAMED IS BAD, ILLEGAL, VOID AND WITHOUT JURISDICTION, AS THE SAME IS FRAMED WITHOUT ISSUING AND SERVING ON THE APPELLANT THE MANDATORY NOTICE U/S 143(2) OF THE ACT WITHIN THE STATUTORY TIME LIMIT AS PROVIDED IN THE INCOME TAX ACT, 1961. 4. IN CONNECTION WITH THE SAID ADDITIONAL GROUNDS LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE GROUNDS AND THE ASSESSMENT ORDER IN QUESTION IS 2005 - 06 AND THE RETURN OF INCOME FOR THE AY WAS FILED ON 27.2.2005. AS PER THE PROVISIONS OF SECTION 14 3(2)(II) OF THE ACT, THE STATUTORY NOTICE U/S 143(2) IS REQUIRED TO BE ISSUED WITHIN 12 MONTHS FROM THE END OF THE FY IN WHICH THE RETURN OF INCOME IS FILED. THOUGH THE DUE DATE FOR ISSUE OF NOTICE IS THE END OF DECEMBER 2006 AS PER THE ASSESSMENT ORDER T HE NOTICE U/S 142 (2) IS DATED 26.7.2007 AND THE SAME WAS SERVED ON THE ASSESSEE. OTHER NOTICE U/S 143(1) WAS ALSO DATED 28.7.2007. THUS, THE NOTICE WAS ISSUED MUCH BEYOND THE DUE DATE PROVIDED IN THE SAID PROVISO. FOR WANT OF VERIFICATION OF THESE RECOR DS, THE CASE WAS ADJOURNED NUMBER OF TIMES. EVENTUALLY, ASSESSING OFFICER INFORMED THE SR. AR, ITAT VIDE HIS LETTER DATED 28.1.2015 THAT THE RELEVANT FILES WERE NOT RECEIVABLE DESPITE THE EFFORTS MADE BY THE ASSESSING OFFICER. THUS, NOTHING IS BROUGHT BEF ORE US TO DEMONSTRATE THAT THE IMPUGNED STATUTORY NOTICE WAS ISSUED BEFORE THE DUE DATES SPECIFIED IN THE STATUTE. THIS BEING THE OLD APPEAL, WE FIND THERE IS NO POINT TO KEEP THE DISPOSAL OF THIS APPEAL PENDING FOR WANT OF UNTRACEABLE ASSESSMENT RECORDS. OTHERWISE, ASSESSMENT ORDER IS VERY CRITICAL IN SPECIFYING THAT THE STATUTORY NOTICE DATED 26.7.2007. RELEVANT LINES FROM THE ASSESSMENT ORDER READ AS UNDER: 3 RETURN OF INCOME WAS FILED ON 27.12.2005 DECLARING INCOME OF RS. 1,30,100/ - ALONG WITH COMPUTAT ION OF TOTAL INCOME, PROFIT AND LOSS ACCOUNT, BALANCE SHEET AND OTHER ANNEXURES. THE RETURN WAS PROCESSED U/S 143(1) AND THEREAFTER SELECTED FOR SCRUTINY. ACCORDINGLY, NOTICE U/S 143(2) DATED 26.7.2007 WAS ISSUED AND SERVED ON THE ASSESSEE. THEREAFTER, NOTICE 143(1) DATED 28.7.2007 ALONG WITH QUESTIONNAIRE WERE ISSUED AND SERVED ON THE ASSESSEE. 5. THUS, THE ISSUE OF STATUTORY NOTICE DATED 26.7.2007 IS MUCH BEYOND THE DUE DATE. CONSIDERING THE ABOVE FACTS, WE ARE OF THE OPINION THAT THE ADDITIONAL GRO UND FILED BY THE ASSESSEE IS ADMITTED AND ADJUDICATED IN FAVOUR OF THE ASSESSEE. 6. CONSIDERING OUR DECISION ON THE LEGAL ISSUE OF THE VALIDITY OF THE ASSESSMENT, THE ADJUDICATION OF THE GROUNDS RAISED IN BOTH THE APPEALS OF THE ASSESSEE AS WELL AS THE REV ENUE BECOME ACADEMIC. ACCORDINGLY, ALL THE GROUNDS RAISED IN BOTH THE APPEALS ARE DISMISSED. 7. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE AS WELL AS THE REVENUE ARE DISMISSED. ORDER PRONOU NCED IN THE OPEN COURT ON 20 TH FEBRUARY, 2015. SD/ - SD/ - (AMIT SHUKLA) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 20.2 .2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI