JAGGANATH CHANDU SHETTY, MUMBAI V. ITO WD 3(2), THANE

ITA 7783/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101212 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: J
• Next Hearing Date: 11-02-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 31-12-2012
• Court: TRIBUNAL
• Department Lawyers: SAMBIT MISHRA
• Keywords: Reopening of assessment; Assessment record; Block assessment
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER I.T.A. NO. 7783/M/2012 (AY: 2004 - 2005 ) SHRI JAGGANATH CHANDU SHETTY, C/O. M/.S HOTEL SHILAJA BAR & RESTAURANT, GANDHI NAGAR, BALI BAZAR, KALYAN (W), 421 202. / VS. ITO WARD 3(2), 6 TH FLOOR, ASHAR IT PARK, WAGLE ESTATE, KALYAN - 400604. ./ PAN : ACKPS4864J ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI JAYANT BHATT / RESPONDENT BY : SHRI SAMBIT MISHRA, DR / DATE OF HEARING : 06.10.2015 / DATE OF PRONOUNCEMENT : 06 .10.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 31.12.2012 IS AGAINST THE ORDER OF THE CIT (A) - 1, THANE, DATED 24.9.2012 FOR THE ASSESSMENT YEAR 2004 - 2005. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE REOPENING OF ASSESSMENT U/S 148 IS BAD IN LAW SINCE NOTICE U/S 148 WAS NOT SERVED ON THE ASSESSEE. 2. T HE LD CIT (A) HAS ERRED IN CONFIRMING THE AOS ORDER OF ADDITION OF RS. 13,58,080/ - BEING THE CASH DEPOSITED IN PERSONAL SAVING BANK ACCOUNT DISREGARDING THE SUBMISSI ONS MADE BY THE APPELLANT AND PRODUCTION OF PERSONAL BALANCE SHEET ON RECORD. 3. THE LD CIT (A) HAS ERRED IN CONFIRMING THE AOS ORDER OF ADDITION OF RS. 4,08,000/ - BEING THE CHEQUES DEPOSITED IN PERSONAL SAVING BANK ACCOUNT DISREGARDING THE SUBMISSIONS MA DE BY THE APPELLANT AND PRODUCTION OF PERSONAL BALANCE SHEET ON RECORD. 4. THE LD CIT (A) HAS ERRED IN CONFIRMING THE AOS ORDER OF ADDITION OF RS. 2,25,000/ - BEING THE AMOUNT INTRODUCED AS CAPITA IN THE FIRM OF M/S. SHAILAJA CATERERS THROUGH LOAN RAISED B Y THE APPELLANT FROM KOTAK MAHINDRA BANK DISREGARDING THE SUBMISSIONS MADE BY THE APPELLANT AND PRODUCTION OF PERSONAL BALANCE SHEET ON RECORD. 5. THE LD CIT (A) HAS ERRED IN CONFIRMING THE AOS ORDER OF ADDITION OF RS. 1,00,000/ - BEING THE AMOUNT INTRODUC ED AS CAPITAL IN THE FIRM OF M/S. SHAILAJA CATERERS DISREGARDING THE SUBMISSIONS MADE BY THE APPELLATE AND PRODUCTION OF PERSONABLE BALANCE SHEET ON RECORD. 2 2. THIS IS THE CASE WHERE RE - ASSESSMENT WAS MADE ON 30.12.2011 AND IT IS THE CLAIM OF THE ASSESSE E THAT THE SAID RE - ASSESSMENT WAS MADE WITHOUT ISSUING NOTICE U/S 143(2) OF THE ACT. ASSESSEE RELIES ON THE BINDING JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON [2010] 321 ITR 362 (SC) AND THE SAME IS RELEVANT FOR THE PROP OSITION THAT ISSUANCE OF NOTICE U/S 143(2) OF THE ACT WITHIN THE PRESCRIBED TIME IS MANDATORY IN CASE OF BLOCK ASSESSMENT. ASSESSEE RAISED THIS LEGAL ISSUE VIDE THE ADDITIONAL GROUND RAISED BEFORE US. FOR DEMONSTRATING THAT THE ASSESSING OFFICER FAILED TO ISSUE THE SAID NOTICE U/S 143(2) OF THE ACT BEFORE COMPLETING THE RE - ASSESSMENT, THE ASSESSEE SOUGHT INSPECTION OF THE R E L E V A N T R E C O R D S / ASS ESSMENT FILES AND THE SAME WAS GRANTED BY THE AO ON 2.6.2015. IT IS THE SUBMISSION OF THE ASSESSEE THAT NO SUCH NOTICE WAS FOUND ISSUED AS PER THE INSPECTION RESULTS. ON THIS ISSUE, LD DR FOR THE REVENUE ALSO MENTIONED THAT A CORRESPONDENCE WAS UNDERTA KEN WITH THE AO FOR WANT OF ASSESSMENT RECORDS. FOR ASCERTAINING THE FACT OF ISSUANCE OF THE SAID NOTICE U/S 143(2), LD DR FILED A LETTER DATED 25.6.2015 IN THIS REGARD. BEFORE US, LD DR FURTHER SUBMITTED THAT THE RELEVANT FILES ARE NOT READILY TRACEABLE N O W AS THEY ARE IN THE PROCESS OF SHIFTING O F T H E R E C O R D S / O F F I C E . DESPITE THE VARIOUS ATTEMPTS FOR MANY MONTHS IN THIS YEAR, THE FACT OF ISSUANCE OF THE SAID NOTICE WAS NOT CONCLUSIVELY ESTABLISHED BY THE REVENUE IN ANY FORM. 3. ON THE OTHER HAND, LD COUNSEL FOR THE ASSESSEE MAD E A STATEMENT AT BAR THAT NO SUCH NOTICE WAS EVER ISSUED BEFORE MAKING RE - ASSESSMENT AND RELIED ON HIS INSPECTION REPORT OF THE ASSESSMENT FILES. 4. AFTER HEARING BOTH THE PARTIES ON THIS LEGAL ISSUE, WE ARE OF THE OPINION THAT THE APPEAL HAS TO BE DECIDED AFTER REJECTING THE ADJOURNMENT REQUEST OF THE LD DR FOR WANT OF EVIDENCE IN SUPPORT OF THE ISSUANCE OF NOTICE U/S 143(2) R.W.S 147 OF THE ACT. ACCORDINGLY, LEGAL ISSUE RAISED BY THE ASSESSEE IS ADMITTED AND DECIDED IN FAVOUR OF THE ASSESSEE. BEFORE PAR TING , WE WOULD LIKE TO MENTION THAT THE DEPARTMENT HAS LIBERTY TO FILE MISCELLANEOUS APPLICATION IN CASE THE SAID NOTICE WAS ACTUALLY ISSUED AND SERVED ON THE ASSESSEE IN THE PRESCRIBED TIME A S T H E L A W . ACCORDINGLY, THIS PART OF THE LEGAL GROUND IS ALLOWED. CONSIDE RING THE ALLOWING OF THE APPEAL ON THE TECHNICAL GROUNDS, WE FIND THE ADJUDICATION OF OTHER GROUNDS ON MERITS 3 BECOMES AN ACADEMIC EXERCISE. ACCORDINGLY, GROUNDS RAISED ON MERITS ARE DISMISSED AS ACADEMIC. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 6TH OCTOBER, 2015. S D / - S D / - (SANDEEP GOSAIN) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 6.10 .2015 . . ./ 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