Bajaj Roadways, Kolkata V. I.T.O., Ward -56(3), Kolkata, Kolkata

ITA 961/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2477 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 02-06-2009
• Court: TRIBUNAL
• Department Lawyers: MRS JYOTI KUMARI
• Assessee Lawyers: S K KANDOI
• Section: 40(b); 40(a)(ia); 143(2)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA ( (( ( ) )) ) . .. . . . . . , ,, , ! ! ! ! '#$ '#$ '#$ '#$ . .. .% %% % . . . . &' &' &' &', , , , () () () () [BEFORE HONBLE SHRI G. D. AGRAWAL, VP & HONBLE SR I D. K. TYAGI, JM] $* $* $* $* / ITA NO. 961 /KOL/2009 +, #-. +, #-. +, #-. +, #-./ // / ASSESSMENT YEAR : 2005-06 BAJAJ ROADWAYS -VS- INCOME-TAX OFFICER, WD-56( 3), KOLKATA (PA NO. AADFB 7307 G) (01 / APPELLANT ) (2&01/ RESPONDENT ) FOR THE APPELLANT: SHRI S. K. KANDOI FOR THE RESPONDENT: MRS. JYOTI KUMARI (%3 / ORDER PER D. K. TYAGI, JM ( . . . . % %% % . . . . &' &' &' &', () ) THE APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A), KOLKATA DATED 25.03.2009 FOR THE ASSESSMEN T YEAR 2005-06 ON THE FOLLOWING GROUNDS : 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE ORDER. THE ENTIRE ORDER IS ILLEGAL A S NOTICE U/S. 143(2) WAS SERVED BEYOND 31.10.2006 WHICH IS TIME PERMITTED UNDER LAW. AS T HE NOTICE ITSELF IS INVALID, NO ASSESSMENT CAN BE FRAMED AND ENTIRE ORDER IS TO BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDING DISALLOWANCE OF RS.1,58,483/- OUT OF TOT AL LORRY HIRE CHARGES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING DISALLOWING OF INTEREST OF RS.59,030/- U/S. 40(A)(IA) FOR NON DEDUCTION OF TAX AT SOURCE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) IS NOT JUSTIFIED IN NOT ALLOWING REMUNERATION U/S. 40(B) BECAUSE OF INCREAS E IN BOOK PROFIT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED ITS RETURN ON 31.10.2005. THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED DETERMINING TOTAL INCOME OF RS.1,72,510/- BY MAKING VARIOUS DISALLOWANCES. BEFORE THE LD. CIT(A) THE ASSESSEE CONTENDED THAT THE NOTICE U/S. 143(2) WAS SERVED UP ON THE ASSESSEE ON 2.11.2006 I.E. BEYOND THE TIME PRESCRIBED AS PER PROVISIONS OF TH E ACT, ACCORDING TO WHICH THE NOTICE WAS TO BE SERVED WITHIN TWELVE MONTHS FROM THE LAST DAY OF THE MONTH IN WHICH THE RETURN WAS FILED. THEREFORE, THE ASSESSMENT ORDER W AS REQUIRED TO BE QUASHED. HOWEVER, THE LD.CIT(A) REJECTED THIS GROUND OF THE ASSESSEE. FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 2 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE PLACED RELIANCE ON THE STAMP OF POSTAL AUTHORITIES ON THE ENVELOP THROUGH WHICH NOTICE WAS SENT TO THE ASSESSEE AND SUBMITTED THAT THE NOTICE WAS ISSUED O N 1.11.2006 AND WAS RECEIVED BY THE ASSESSEE ON 2.11.2006 WHILE AS PER THE PROVISIONS O F THE ACT THE SAME SHOULD HAVE BEEN SERVED BEFORE 31.10.2006 AS THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 31.10.2005. THIS SUBMISSION OF THE ASSESSEE REMAINED UNCONTROVE RTED BY THE REVENUE. AS THE NOTICE U/S. 143(2) WAS SERVED UPON THE ASSESSEE BEYOND THE TIME PRESCRIBED UNDER THE ACT, THE ORDER PASSED BY THE AO WAS VOID ABINITIO AND THE SA ME IS HEREBY QUASHED. 4. SINCE WE HAVE QUASHED THE ASSESSMENT ORDER ITSE LF, THE OTHER GROUNDS DO NOT REQUIRE ANY ADJUDICATION AND THE SAME ARE HEREBY DI SMISSED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- . .. . . . . . , , , , ! ! ! ! . . . . % %% % . . . . &' &' &' &', , , , () (G. D. AGRAWAL) (D. K. TYAGI) VICE PRESIDENT JUDICIAL MEMBER ( (( (4 4 4 4) )) ) DATED :15TH JULY, 2010 #56 +7 +8# JD.(SR.P.S.) (%3 9 2++: %:-;- COPY OF THE ORDER FORWARDED TO: 1. 01 /APPELLANT M/S. BAJAJ ROADWAYS, 29B, RABINDRA SA RANI, KOLKATA-73 2. 2&01 /ITO, WARD-56(3), KOLKATA. 3. +3 / THE CIT, KOLKATA 4. +3 ()/ THE CIT(A), KOLKATA 5. #=+' 2+ / DR, KOLKATA BENCHES, KOLKATA &: 2+/ TRUE COPY, (%3>/ BY ORDER, $ /DEPUTY REGISTRAR .