Ramdas Bhausaheb Barne, Pune V. Income-tax Officer, Ward - 10(3), Pune

ITA 977/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2586 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-03-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 30-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Section: 143(3)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 977 /P U N/201 8 / ASSESSMENT YEAR : 20 1 1 - 1 2 RAMDAS BHAUSAHEB BARNE, KRANTIVEER NAGAR, NEAR DATTA MANDIR, THERGAON ROAD, PUNE 411033 . / APPELLANT PAN: A GCPB5041Q VS. THE INCOME TAX OFFICER, WAD 1 0 ( 3 ), PUNE . / RESPONDENT / APPELLANT BY : SHRI S.N. PURANIK / RESPONDENT BY : SHRI M.K. VERMA / DATE OF HEARING : 05 . 0 3 .201 9 / DATE OF PRONOUNCEMENT: 07 . 0 3 .201 9 / ORDER PER SUSHMA CHOWLA, J M : TH E APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 6 , PUNE , DATED 3 1 . 0 1 .201 8 RELATING TO ASSESSMENT YEAR 20 1 1 - 1 2 AGAINST ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME - TAX ACT , 1961 ( IN SHORT THE ACT) . 2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT JURISDICTIONAL ISSUE IS RAISED VIDE GROUND OF APPEAL NO.2, WHICH MAY BE ADDRESSED FIRST. THE GROUND OF APPEAL NO.2 READS AS UNDER: - ITA NO. 977 /P U N/201 8 RAMDAS BHAUSAHEB BARNE 2 2. WITHOUT P REJUDICE TO GROUND NO. 1 ABOVE, PROCEEDINGS U/S 147/148 AND ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S 148 ARE BAD IN LAW, SAME MAY PLEASE BE CANCELLED. 3. THE PLEA OF ASSESSEE BEFORE US IS THAT THE ASSESSING OFFICER CLAIMS TO HAVE RECEIVED CERTAIN INFORMATI ON, ON THE BASIS OF WHICH THE ASSESSING OFFICER FORMED AN OPINION THAT THERE IS AN ESCAPEMENT OF INCOME IN THE HANDS OF ASSESSEE AND CONSEQUENTLY, NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 12.02.2014, WHICH WAS RECEIVED ON 12.02.2014 ITSELF. HOWEV ER, THE SANCTION FROM THE JCIT, RANGE - 10, PUNE WAS RECEIVED AFTER ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT. IN THIS REGARD, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO LETTER DATED 19.03.2014 OF THE JCIT, RANGE - 10, PUNE, PLACED AT PAGE 4 OF PAPER BOOK. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. SMT. SUMAN WAMAN CHAUDHARY (2010) 321 ITR 495 (BOM). THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ALSO POINTED OUT ORIGINAL ASSESSMENT IN THE CASE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 19.07.2013. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, PLACED RELIANCE ON TH E RATIO LAID DOWN BY MUMBAI BENCH OF TRIBUNAL IN LAXMINARAYAN AGARWAL (HUF) VS. ITO (2012) 24 TAXMANN.COM 81 (MUMBAI TRIB.) . 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE LIMITED ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST JURISDICTION INVOKED BY THE ASSESSING OFFICER BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT AND WHETHER THE SAME HAS BEEN VALIDLY INVOKED. THE ORIGINAL ASSESSMENT IN THE ITA NO. 977 /P U N/201 8 RAMDAS BHAUSAHEB BARNE 3 CASE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT. THEREAFTER, THE ASSESSING OFFIC ER RECORDED REASONS FOR REOPENING THE ASSESSMENT AND CONSEQUENT THERETO, ISSUED NOTICE UNDER SECTION 148 OF THE ACT. THE SAID NOTICE WAS ISSUED ON 12.02.2014 AND WAS SERVED ON THE ASSESSEE ON 12.02.2014 ITSELF. THE COPY OF SAID NOTICE IS PLACED AT PAGE 3 OF PAPER BOOK. THE JCIT, RANGE - 10, PUNE VIDE LETTER DATED 19.03.2014 APPROVED THE PROPOSAL FOR ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT IN RESPONSE TO ASSESSING OFFICERS PROPOSAL DATED 14.03.2014. WITHOUT GOING INTO MERITS OF THE CASE, WE PROPOSE T O DEAL WITH THE JURISDICTIONAL ISSUE FIRST. 6. AS PER PRE - AMENDED PROVISIONS OF SECTION 151(1) OF THE ACT, WHERE THE ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION 143(3) OF THE ACT, THEN NO NOTICE SHALL BE ISSUED UNDER SECTION 148 OF THE ACT BY AN ASSESS ING OFFICER, WHO IS BELOW THE RANK OF ASSISTANT COMMISSIONER OR DEPUTY COMMISSIONER, UNLESS THE JOINT COMMISSIONER IS SATISFIED ON THE REASONS RECORDED BY SUCH ASSESSING OFFICER THAT IT IS A FIT CASE FOR ISSUE OF SUCH NOTICE. THE PROVISO LAYS DOWN THAT AF TER EXPIRY OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR, SATISFACTION IS TO BE OBTAINED FROM THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER. THE ASSESSMENT IN THE CASE WAS COMPLETED ON 19.07.2013 UNDER SECTION 143(3) OF THE ACT. THE ASSESSING OFFICER ISSUING THE NOTICE UNDER SECTION 148 OF THE ACT IS INCOME TAX OFFICER, WARD 10(3), PUNE. HENCE, UNDER THE PROVISIONS OF SECTION 151(1) OF THE ACT, NO NOTICE UNDER SECTION 148 OF THE ACT WOULD BE ISS UED BEFORE OBTAINING THE APPROVAL OF JCIT, WHICH IN THE PRESENT CASE WAS RECEIVED AFTER ISSUE / RECEIPT OF THE NOTICE UNDER SECTION 148 OF THE ACT. SUCH A NOTICE ISSUED UNDER SECTION 148 OF THE ACT IS THUS, INVALID IN LAW. ITA NO. 977 /P U N/201 8 RAMDAS BHAUSAHEB BARNE 4 7. THE HONBLE BOMBAY HIGH COU RT IN CIT VS. SMT. SUMAN WAMAN CHAUDHARY (SUPRA) HAD LAID DOWN THAT UNDER SECTION 151(2) OF THE ACT, PRIOR APPROVAL OF THE CONCERNED AUTHORITY WAS REQUIRED TO BE TAKEN BEFORE ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT. SECTION 151(2) OF THE ACT DEALS WI TH CASES WHERE THE ASSESSMENT HAS NOT BEEN COMPLETED UNDER SECTION 143(3) OF THE ACT. 8. APPLYING THE SAID RATIO TO THE FACTS OF PRESENT CASE, WE HOLD THAT ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT IN THE PRESENT CASE IS ANNULLED AND CONSEQUENT ORDER P ASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT CANNOT STAND. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAD PLACED RELIANCE ON THE ORDER OF MUMBAI BENCH OF TRIBUNAL IN LAXMINARAYAN AGARWAL (HUF) VS. ITO (SUPRA), WHEREIN THE JURISDICTION OF NOTICE ISSUED UNDER SECTION 148 OF THE ACT WAS CHALLENGED AFTER EXPIRY OF EIGHT YEARS FROM THE DATE OF NOTICE, WHICH IS NOT THE CASE BEFORE US AND HENCE, NOT APPLICABLE. THE GROUND OF APPEAL NO.2 RAISED BY ASSESSEE IS THUS, ALLOWED. ALL THE OTHER GROUNDS OF APPEAL WOULD BECOME ACADEMIC. 9 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 7 TH DAY OF MARCH , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 7 TH MARCH , 201 9 . GCVSR ITA NO. 977 /P U N/201 8 RAMDAS BHAUSAHEB BARNE 5 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 6 , PUNE ; 4. THE PR. CIT - 5 , PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE