Smt. Shaila Agarwal, Kanpur V. Astt. Commissioner of Income Tax, Kanpur

ITA 801/LKW/2006

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4691 (ITAT-LUCKNOW)
• Duration Of Justice: 9 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-02-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 26-06-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.801/LKW/2006 ASSESSMENT YEAR 2002-03 ACIT, RANGE-3, KANPUR VS SMT. SHAILA AGARWAL, 7/130, SWAROOP NAGAR, KANPUR PAN AA NPA 8364 Q (RESPONDENT) (APPELLANT) SHRI P .K. KAPOOR, CA APPELLANT BY SHRI A.K. SINGH,CIT,DR RESPONDENT BY 02/02/2016 DATE OF HEARING 29/02/2016 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT (A)-II, KANPUR DATED 22.05.2006 FOR THE AY 2002-06. 2. THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND, WH ICH READS AS UNDER: 2. BECAUSE IN ANY CASE, NOTICE UNDER SECTION 143( 2) DATED 30.10.2003 HAVING NOT BEEN SERVED IN ACCORDANCE WI TH THE PROVISIONS OF SECTION 282 READ WITH RELEVANT PROVISIONS AS CONTAINED IN CIVIL PROCEDURE CODE, 19 08, THE SAME COULD NOT HAVE BEEN TREATED TO HAVE SATISFIED THE MANDATORY REQUIREMENT OF SERVING THE NOTICE UNDER SECTION 143(2) WITHIN THE STIPULATED PERIOD, WITH T HE 2 RESULT THAT THE ASSESSMENT ORDER DATED 30.03.2005 I S VOID AB-INITIO. 3. IT WAS SUBMITTED BY LD. AR OF THE ASSESSEE THAT SIMILAR SITUATION HAS ARISEN IN THE CASES OF OTHER PERSONS OF THE FAM ILY OF THE ASSESSEE SHRI SANJEEV AGARWAL AND SHRI RAJEEV AGARWAL IN ITA NOS. 495/LKW/2009 AND 565/LKW/2010 RESPECTIVELY. HE ALSO SUBMITTED TH AT THE TRIBUNALS ORDERS IN BOTH THESE CASES ARE AVAILABLE ON PAGES 3 1 TO 49 AND 50 TO 62 OF THE PAPER BOOK. HE ALSO SUBMITTED THAT ON PAGES 18 TO 19 OF THE PAPER BOOK IS AFFIDAVIT OF THE ASSESSEE, IN WHICH I T IS STATED THAT THE NOTICE U/S 143(2) WAS NEVER SERVED ON THE ASSESSEE AND FURTHER ENQUIRY IT WAS FOUND OUT BY HER THAT THE SAME HAS BEEN SERV ED ON SOME SACHIN AGARWAL WHO WAS NEVER AUTHORIZED BY HER TO REPRESEN T AND CONDUCT HER INCOME TAX CASES BEFORE ANY INCOME TAX AUTHORITY. T HEREAFTER, HE HAS DRAWN OUR ATTENTION TO THE TRIBUNALS ORDERS IN THO SE TWO CASES AND POINTED OUT THAT IN THOSE CASES ALSO, THE NOTICE U/ S 143(2) WAS SERVED ON THE SAME PERSON I.E. SHRI SACHIN AGARWAL AND IT WAS CLAIMED IN THOSE CASES ALSO THAT HE WAS NOT AUTHORIZED TO RECEIVE AN Y NOTICE ON BEHALF OF THE ASSESSEE AND AS PER PARA 7.3 OF THE TRIBUNALS ORDER IN THE CASE OF SACHIN AGARWAL (SUPRA), THE TRIBUNAL DECIDED THE IS SUE IN FAVOUR OF THE ASSESSEE AND THE ASSESSMENT ORDER WAS HELD TO BE IN VALID. 4. LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF AU THORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT AS PER AFFIDAVIT OF THE ASSESSEE AVAILABLE ON PAGES 18 TO 19 OF THE PAPER BOOK, IT IS CLAIMED BY THE ASSESSEE THAT THE NOTICE ISSUED B Y THE ASSESSING OFFICER U/S 143(2) OF THE ACT NEVER SERVED ON THE ASSESSEE AND ON FURTHER ENQUIRY, IT WAS FOUND BY THE ASSESSEE THAT THE SAME HAS BEEN SERVED ON 3 SAME SACHIN AGARWAL WHO HAS NEVER BEEN AUTHORIZED B Y THE ASSESSEE TO REPRESENT AND CONDUCT HER INCOME TAX CASES BEFORE A NY INCOME TAX AUTHORITY. THIS ASSERTION OF THE ASSESSEE COULD NOT BE CONTROVERTED BY LD. DR OF THE REVENUE. IN THE CASE OF SANJEEV AGARWAL ( SUPRA), THE FACTS WERE SIMILAR BECAUSE IN THAT CASE ALSO, NOTICE U/S 143(2) WAS SERVED ON SAME PERSON SHRI SACHIN AGARWAL AND IT WAS CLAIMED IN THAT CASE ALSO THAT HE WAS NOT AUTHORIZED TO RECEIVE NOTICE ON BEH ALF OF THE ASSESSEE. 6. UNDER THESE FACTS, THE ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE AND THE RELEVANT PARAS OF THE TRIBU NALS ORDER BEING PARA 7.3 AVAILABLE ON PAGE 44 OF THE PAPER BOOK IS REPRO DUCED BELOW FOR THE SAKE OF READY REFERENCE: 7.3 IN THE PRESENT CASE, AS WE HAVE ALREADY NOTED I N THE FORMER PART OF THIS ORDER THAT THE NOTICE HAS N EITHER BEEN SERVED ON THE ASSESSEE OR ANY OTHER PERSON AUTHORIZED BY THE ASSESSEE. THEREFORE, THE SERVICE ON SHRI SACHIN AGARWAL, WHO WAS NOT AUTHORIZED, WAS NO T A VALID SERVICE. IN THAT VIEW OF THE MATTER, WE ARE OF THE CONSIDERED VIEW THAT IN THE INSTANT CASE THE NOTICE U/S 143(2) BEFORE COMPLETING THE ASSESSMENT U/S 143(3) HAS NOT BEEN SERVED UPON THE ASSESSEE. THEREFORE, THE ASSESSMENT FRAMED U/S 143(3) WAS INVALID. ON A SIM ILAR ISSUE THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. IQBAL SINGH [2007] 162 TAXMAN 107 HAS HELD HAS UNDE R: SO, FROM THE ENTIRE MATERIAL AVAILABLE ON RECORD, WE HAVE NO HESITATION IN HOLDING THAT NO NOTICE U/S 143(2) OF THE ACT HAD BEEN SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED PERIOD AND, THEREFORE, THE ASSESSMENT MADE BY THE ASSESSING OFFICER, IS INVALID. 7. SINCE THE FACTS OF THE PRESENT CASE ARE SIMILAR, WE DECIDE THE ISSUE IN THE PRESENT CASE IN FAVOUR OF THE ASSESSEE BY RE SPECTFULLY FOLLOWING 4 THIS TRIBUNALS ORDER RENDERED IN THE CASE OF SANJE EV AGARWAL (SUPRA), AND WE HOLD IN THE PRESENT CASE ALSO THAT NOTICE U/ S 143(2) OF THE ACT HAS NOT BEEN SERVED UPON THE ASSESSEE AND THEREFORE , THE ASSESSMENT FRAMED U/S 143(2) IS INVALID. 8. IN VIEW OF OUR ABOVE DECISION, OTHER GROUNDS DO NOT CALL FOR SEPARATE ADJUDICATION. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (SUNIL KUMAR YADAV) (A.K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 29/02/2016 AKS 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