DHIRAJ L SHAH, MUMBAI V. DCIT 4(3), MUMBAI

ITA 817/MUM/2012

• Counselvise Citation: 81719914 RSA 2012
• Duration Of Justice: 2 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 07-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA P YADAV
• Assessee Lawyers: VIPUL JOSHI; ABHISHEK TILAK

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE S/SHRI D. MANMOHAN , VICE-PRESIDENT AND B.R.BASKARAN (AM) , . , . . , ./I.T.A. NO.817/MUM/2012 ( ! ' / ASSESSMENT YEAR :2008-09) SHRI DHIRAJ L SHAH, 165/A, VINCENT CHAMBER, 3 RD FLOOR, DR.AMBEDKAR ROAD, DADAR, MUMBAI-400014 / VS. DY. COMMISSIONER OF INCOME TAX - 4(3), ROOM NO.649, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( #$ / APPELLANT) .. ( %&#$ / RESPONDENT) # ./ '( ./ PAN/GIRNO.:AAEPS5846A #$ ) / APPELLANT BY : SHRI VIPUL JOSHI AND SHRI ABHISHEK TILAK %&#$ * ) /RESPONDENT BY: SHRI AKHILENDRA P YADAV + , * -. / DATE OF HEARING : 7.10.2014 /'! * -. /DATE OF PRONOUNCEMENT : 9.10.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 30.11.2011 PASSED BY LD CIT(A)-8, MUMBAI AND IT REL ATES TO THE ASSESSMENT YEAR 2008-09. THE ASSESSEE, INTER ALIA, IS CHALLENGING THE VALIDITY OF THE ASSESSMENT ORDER ON THE GROUND THAT THE ASSESSING OFFICER HAVI NG JURISDICTION OVER THE ASSESSEE DID NOT SERVE VALID NOTICE U/S 143(2) OF T HE ACT. 2. THE FACTS RELATING TO THE ABOVE SAID PRELIMINARY ISSUE ARE STATED IN BRIEF. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE FILE D HIS RETURN OF INCOME ON 30-09-2008. UPTO THE ASSESSMENT YEAR 2006-07 THE A SSESSEE APPEARS TO HAVE FILED THE RETURNS OF INCOME WITH THE ASSISTANT COMM ISSIONER OF INCOME TAX (ACIT)-17(1), MUMBAI. FROM THE ASSESSMENT YEARS 20 07-08 ONWARDS, THE I.T.A. NO.817/MUM/2012 2 ASSESSEE WAS FILING RETURN OF INCOME UNDER E-FILING PROCESS. BEFORE THE DATE OF FILING RETURN OF INCOME FOR THE YEAR UNDER CONSIDER ATION, THE ASSESSEE RECEIVED A LETTER DATED 29-08-2008 FROM THE ACIT-17(1), MUMBAI , WHEREIN THE SAID OFFICER SOUGHT OBJECTION, IF ANY, FROM THE ASSESSEE FOR TRA NSFERRING THE RECORDS PERTAINING TO THE ASSESSEE TO THE JURISDICTION OF D CIT, RANGE 4(3), MUMBAI. IN RESPONSE THERETO, THE ASSESSEE FILED A REPLY DATED 28.8.2008 REQUESTING THE ACIT NOT TO TRANSFER THE RECORD. HOWEVER, ACCORDING TO THE ASSESSEE, HE DID NOT RECEIVE ANY COMMUNICATION THEREAFTER IN THIS REGAR D. 3. ACCORDING TO LD A.R, THE ASSESSMENT RELATING TO THE ASSESSMENT YEAR 2006-07 WAS COMPLETED BY THE ACIT 4(3), MUMBAI ON 02-12-2008. SIMILARLY, THE ASSESSMENT RELATING TO THE ASSESSMENT YEAR 2007 -08 WAS ALSO COMPLETED BY THE ACIT-4(3), MUMBAI ON 30-09-2009. ACCORDING TO LD A.R, BOTH THE ABOVE SAID FACTS CLEARLY SHOW THAT THE RECORD OF THE ASSE SSEE HAS BEEN TRANSFERRED TO THE ACIT-4(3), MUMBAI IMMEDIATELY AFTER RECEIPT OF LETTER DATED 28.8.2008 FURNISHED BY THE ASSESSEE. 4. AS STATED EARLIER, THE RETURN OF INCOME FOR TH E YEAR UNDER CONSIDERATION WAS FILED BY THE ASSESSEE ON 30-09-2008. THE ASSE SSEE RECEIVED A NOTICE U/S 143(2) OF THE ACT ON 13.08.2009 FROM THE DCIT- 17(1 ), MUMBAI FOR THE IMPUGNED ASSESSMENT YEAR. THE LD A.R POINTED OUT T HAT THIS NOTICE, THOUGH RECEIVED WITHIN THE STATUTORY TIME LIMIT PRESCRIBED U/S 143(2) OF THE ACT, YET IT WAS ISSUED BY AN ASSESSING OFFICER, WHO DID NOT HAV E JURISDICTION OVER THE ASSESSEE AT THAT POINT OF TIME, I.E., ACCORDING TO LD A.R, THE RECORDS OF THE ASSESSEE HAD ALREADY BEEN TRANSFERRED TO THE ACIT 4 (3) MUCH EARLIER TO THE ISSUE OF NOTICE U/S 143(2) BY THE DCIT- 17(1), MUMBAI. A CCORDINGLY, THE LD A.R CONTENDED THAT THE SAID NOTICE ISSUED BY A NON-JURI SDICTIONAL OFFICER CANNOT BE CONSIDERED AS A VALID NOTICE. 5. SUBSEQUENTLY, THE DCIT-4(3), MUMBAI ISSUED ANOTH ER NOTICE U/S 143(2) OF THE ACT ON 10.11.2010. THOUGH THE SAID OFFICER WAS HAVING JURISDICTION OVER THE ASSESSEE AT THAT POINT OF TIME, YET THE NOTICE DATE D 10.11.2010 ISSUED U/S 143(2) WAS TIME BARRED, SINCE IT WAS ISSUED BEYOND THE TIM E LIMIT PRESCRIBED UNDER THAT I.T.A. NO.817/MUM/2012 3 SECTION. ACCORDINGLY, THE LD A.R CONTENDED THAT TH E ABOVE SAID NOTICE CANNOT ALSO BE CONSIDERED TO BE A VALID NOTICE. 6. ACCORDINGLY, THE LD A.R CONTENDED THAT BOTH THE NOTICES SHALL NOT HAVE ANY STATUTORY EFFECT AND CONSEQUENTLY, THE IMPUGNED ASSESSMENT ORDER FRAMED ON THE STRENGTH OF THE ABOVE SAID NOTICES IS LIABLE TO BE QUASHED. 7. ON THE CONTRARY, THE LD D.R PLACED STRONG RELIAN CE ON THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE. 8. WE HEARD THE PARTIES ON THIS PRELIMINARY ISSUE. THE FACTS NARRATED ABOVE WOULD SHOW THAT THE NOTICE DATED 13.08.2009 WAS ISS UED BY AN OFFICER (DCIT- 17(1), MUMBAI) WHO DOES NOT HAVE JURISDICTION OVER THE ASSESSEE, SINCE THE ASSESSMENT ORDERS OF THE PRECEDING TWO ASSESSMENT Y EARS WERE COMPLETED BY THE ACIT-4(3), MUMBAI. THOUGH THERE IS NO SPECIFIC TRANSFER ORDER AVAILABLE IN THE RECORD, YET THE CORRESPONDENCES EXCHANGED BETWE EN THE ACIT-17(1), MUMBAI AND THE ASSESSEE; THE ASSESSMENT ORDERS PASS ED FOR AY 2006-07 AND 2007-08 AND SURROUNDING CIRCUMSTANCES CLEARLY SHOW THAT THE RECORDS OF THE ASSESSEE HAD ALREADY BEEN TRANSFERRED TO THE JURISD ICTION OF THE DCIT-4(3), MUMBAI. HENCE, WE FIND MERIT IN THE CONTENTION OF THE ASSESSEE THAT THE NOTICE DATED 13.8.2009 ISSUED U/S 143(2) OF THE ACT BY THE DCIT-17(1), MUMBAI CANNOT BE CONSIDERED AS A VALID NOTICE. 9. ADMITTEDLY, ANOTHER 143(2) NOTICE DATED 10.11.2 010 ISSUED BY THE DCIT - 4(3), MUMBAI, I.E., THE OFFICER HAVING JURISDICTION OVER THE ASSESSEE IS BEYOND THE TIME LIMIT PRESCRIBED IN SEC. 143(2) OF THE ACT AND HENCE THE SAME CANNOT ALSO BE CONSIDERED AS VALID NOTICE. 10. IN VIEW OF THE ABOVE, WE FIND MERIT IN THE CON TENTIONS OF THE ASSESSEE THAT THE IMPUGNED ASSESSMENT ORDER HAS BEEN PASSED WITHO UT SERVING A VALID NOTICE AS PRESCRIBED IN SEC. 143(2) OF THE ACT. ACCORDING LY, THE ASSESSING OFFICER CANNOT BE CONSIDERED TO HAVE ASSUMED JURISDICTION BY SERVI NG A VALID NOTICE. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY LD CI T(A) AND QUASH THE IMPUGNED ASSESSMENT ORDER. I.T.A. NO.817/MUM/2012 4 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IS ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPE N COURT ON 9TH OCT, 2014. /'! + 0 1 2 3 9TH OCT , 2014 * :, ; SD SD ( . / D. MANMOHAN ) ( . . ,/ B.R. BASKARAN) / VICE- PRESIDENT / ACCOUNTANT MEMBER + , MUMBAI: 9TH OCT,2014. . . ./ SRL , SR. PS ! ' / COPY OF THE ORDER FORWARDED TO : 1. #$ / THE APPELLANT 2. %&#$ / THE RESPONDENT. 3. + <- ( ) / THE CIT(A)- CONCERNED 4. + <- / CIT CONCERNED 5. 6. =>: %- ? , . ? ! , + , / DR, ITAT, MUMBAI CONCERNED : @, / GUARD FILE. A + / BY ORDER, TRUE COPY ' (ASSTT. REGISTRAR) . ? ! , + , /ITAT, MUMBAI