Babulal G. Chudasama & Avcharbhai Devshibai Gangani, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-5(3), Morbi, RAJKOT-GUJARAT

ITA 979/RJT/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7341 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-01-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 11-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: JC RANPARA
• Keywords: Set aside
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.979/RJT/2010 (ASSESSMENT YEAR 2000-01) BABULAL G CHUDASAMA & VS ITO, WD.5(3) AVCHARBHAI DEVSHIBHAI GANGANI RAJKOT ASHUTOSH APARTMENT 1-GITA NAGAR, RAJKOT PAN : ABWPG1553F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JC RANPARA RESPONDENT BY : SHRI AVINASH KUMAR O R D E R PER N.R.S. GANESAN, JM BEING AGGRIEVED BY THE ORDER OF THE CIT(A) DATED 0 6-04-2010 CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER, THE ASSESSE E PREFERRED THE APPEAL BEFORE THIS TRIBUNAL. 2. SHRI JC RANPARA, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER REOPENED THE ASSESSMENT BY ISSUIN G NOTICE U/S 148. REFERRING TO THE COPIES OF THE NOTICES, THE LEARNED REPRESENTATIVE F OR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER ISSUED THREE NOTICES SIMULTANEOUS LY FOR ASSESSING THE INCOME AND ALL THE NOTICES DID NOT MENTION THE STATUS OF THE ASSES SEE. REFERRING TO THE PAPER BOOK FILED BY THE ASSESSEE, THE LEARNED REPRESENTATIVE POINTED OUT THAT THE COPIES OF THOSE THREE NOTICES ARE AVAILABLE AT PAGES 9 TO 11 OF THE PAPER BOOK. EVEN THOUGH THE ASSESSEE WAS ASSESSED IN THE STATUS OF AOP, THE THREE NOTI CES ISSUED SIMULTANEOUSLY DO NOT MENTION THE STATUS. THEREFORE, ACCORDING TO THE LE ARNED REPRESENTATIVE FOR THE ASSESSEE, THE REOPENING OF THE ASSESSMENT IS BAD IN LAW AND C ONSEQUENTLY, THE ENTIRE ASSESSMENT PROCEEDINGS NEED TO BE SET ASIDE. REFERRING TO THE ORDER OF THIS TRIBUNAL, COPY OF WHICH IS AVAILABLE AT PAGE 12 OF THE PAPER BOOK, THE LEAR NED REPRESENTATIVE SUBMITTED THAT THIS BENCH OF THE TRIBUNAL HAD AN OCCASION TO CONSIDER A N IDENTICAL SITUATION AND AFTER REFERRING TO THE JUDGMENT OF THE CALCUTTA HIGH COUR T IN BHAWAN DEVI SARAOGI & ORS VS ITO 118 ITR 906 (CAL) FOUND THAT WHEN THE NOTICE IS SUED BY THE ASSESSING OFFICER U/S 148 DID NOT REFER TO THE STATUS THE ASSESSING OFFIC ER DID NOT GET ANY JURISDICTION TO ASSESS ITA NO.979/RJT/2010 2 THE INCOME SAID TO HAVE ESCAPED. THE LEARNED REPRE SENTATIVE AGAIN ARGUED THE CASE IN RESPECT OF ADDITION OF R.1,60,000. 3. ON THE CONTRARY, SHRI AVINASH KUMAR, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT HE IS PLACING HIS RELIANCE ON THE OB SERVATIONS MADE BY THE CIT(A). 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D REPRESENTATIVE OF THE ASSESSEE AND THE LEARNED DEPARTMENTAL REPRESENTATIV E. 5. THE FIRST ISSUE THAT ARISES FOR CONSIDERATION IS REGARDING VALIDITY OF REOPENING OF THE ASSESSMENT U/S 147 OF THE ACT. THE CONTENTION OF THE ASSESSEE BEFORE THIS TRIBUNAL IS THAT NOTICES ISSUED BY THE ASSESSING OFFICER DID NOT MENTION THE STATUS OF THE ASSESSEE. WE HAVE CAREFULLY GONE THROUGH THE THREE NOTICES ISSUED BY THE ASSESSING OFFICER FOR REOPENING THE ASSESSEE. AS RIGHTLY SUB MITTED BY THE LEARNED REPRESENTATIVE OF THE ASSESSEE ALL THE THREE NOTICES DO NOT STATE THE STATUS OF THE ASSESSEE. WE HAVE CAREFULLY GONE THROUGH THE DECISION OF THIS TRIBUNA L IN BHIMABHAI AJABHAI SATVARA ITA NO.156/RJT/2009 DATED 03-12-2010, A COPY OF WHICH I S AVAILABLE AT PAGE 12 OF THE PAPER BOOK. THIS TRIBUNAL, AFTER CONSIDERING THE J UDGMENT OF THE CALCUTTA HIGH COURT IN BHAGWAN DEVI SARAOGI & ORS VS ITO (SUPRA) FOUND THA T IT CANNOT BE ASCERTAINED FROM THE NOTICE ISSUED BY THE ASSESSING OFFICER TO WHOM SUCH NOTICE WAS CONCERNED. ACCORDINGLY THIS TRIBUNAL FOUND THAT THE ACTION OF THE ASSESSIN G OFFICER IS WITHOUT JURISDICTION AND THE ASSESSMENT ORDER WAS QUASHED. WE HAVE CAREFULLY GO NE THROUGH THE JUDGMENT OF THE CALCUTTA HIGH COURT IN BHAGWAN DEVI SARAOGI & ORS V S ITO (SUPRA). AFTER REFERRING TO THE EARLIER DIVISION BENCH JUDGMENT OF THE CALCUTTA HIGH COURT IN RAMADEVI AGARWAL VS CIT (1979) 117 ITR 56 THE CALCUTTA HIGH COURT FOUND THAT THE NOTICE ISSUED WITHOUT MENTIONING THE STATUS OF THE ASSESSEE WAS INVALID A ND THE ASSESSING OFFICER HAD NO JURISDICTION TO PROCEED FURTHER. IN THIS CASE ALSO , THE NOTICE ISSUED BY THE ASSESSING OFFICER DOES NOT ADMITTEDLY MENTION THE STATUS OF T HE ASSESSEE. THEREFORE, AS HELD BY THE CALCUTTA HIGH COURT THE NOTICE ISSUED BY THE AS SESSING OFFICER U/S 148 OF THE INCOME- TAX ACT IS INVALID. CONSEQUENTLY, THE REOPENING OF THE ASSESSMENT IS INVALID AND THE ASSESSING OFFICER CANNOT PROCEED FURTHER. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF THE APEX COURT IN RAJESH JHAVERI STOCK BROKERS P LTD (2007) 291 ITR 500. THE APEX COURT CONSIDERED THE POWER OF THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT WHERE THE PRIMA FACIE ADJUSTMENT WAS MADE U/S 143(1)(A). THE NON MENTIONING OF STATUS OF THE ITA NO.979/RJT/2010 3 ASSESSEE IN THE NOTICE WAS NOT THE SUBJECT MATTER B EFORE THE APEX COURT. THEREFORE, THE JUDGMENT OF THE APEX COURT RELIED ON BY CIT(A) MAY NOT BE OF ANY ASSISTANCE TO THE REVENUE. BY FOLLOWING THE ORDER OF THIS TRIBUNAL I N THE CASE OF BHIMABHAI AJABHAI SATVARA (SUPRA) AND THE JUDGMENT OF THE CALCUTTA HI GH COURT IN BHAGWAN DEVI SARAOGI & ORS VS ITO (SUPRA) AND FOR THE REASONS STATED THERE IN WE HOLD THAT THE NOTICE U/S 148 IS INVALID. CONSEQUENTLY, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER HAS NO LEG TO STAND. ACCORDINGLY, THE SAME IS QUASHED. 6. SINCE THE ORDER OF ASSESSMENT IS QUASHED ON THE ISSUE OF JURISDICTION, IT MAY NOT BE NECESSARY FOR THIS TRIBUNAL TO GO INTO MERIT OF THE ADDITION MADE BY THE ASSESSING OFFICER. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-02-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 25 TH FEBRUARY, 2011 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-IV, RAJKOT 4. THE CIT-III, RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT