ITO, Kota V. YOGENDRA KUMAR KHURANA, Kota

ITSSA 1/JPR/2011

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8201 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 10-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA
• Assessee Lawyers: G G MUNDRA
• Keywords: Search and seizure

Judgement Text

1 ITSSA 1-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITSSA NO. 1/JP/2011 BLOCK PERIOD : 1990-91TO 2000-01. THE INCOME-TAX OFFICER, VS. SHRI YOGENDRA KUMAR K HURANA, WARD 1(2), 1-JHA-16, VIGYAN NAGAR, KOTA. KOTA. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. ROSHANTA MEENA RESPONDENT BY : SHRI G.G. MUNDRA ORDER DATE OF ORDER : 22/07/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO BLOCK PERIOD 1990-91 TO 2000-01 (UPTO 07.04.1999). 2. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE DEP ARTMENT :- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT (A) HAS GROSSLY ERRED IN ANNULLING THE ASSESSMENT ORDER MAD E BY THE ASSESSING OFFICER U/S 158BC/143(3) ON 30.4.2001 ON LEGAL GROU ND OF NOT ISSUING THE NOTICE U/S 143(2) WITHIN 12 MONTHS FROM THE END OF MONTH IN WHICH THE RETURN OF INCOME WAS FILED, AS THIS IS A SEARCH AND SEIZURE CASE AND NOTICE REQUIRED TO BE SEND IS U/S 158BC(A)(II) R.W.S. 142( 1) OF THE IT ACT, WHICH WAS SEND BY AO ON 08.12.2000. (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD. CIT (A) HAS GROSSLY ERRED IN NOT DECIDING THE APPEAL ON MERITS AS PER THE DIRECTION OF HONBLE ITAT, JAIPUR WHILE REMANDING THE CASE TO HI M. 2 3. THE LD. D/R LACED RELIANCE ON THE ORDER OF AO. IT WAS FURTHER SUBMITTED THAT THE GROUNDS OF THE DEPARTMENT ARE SELF-EXPLANATORY, THE REFORE, THE GROUNDS OF THE DEPARTMENT SHOULD BE TAKEN INTO CONSIDERATION. 4. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE STATED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF HONBLE APEX COURT IN CA SE OF HOTEL BLUE MOON, 321 ITR 362 (SC) AND LD. CIT (A) HAS FOLLOWED THE SAME. THERE FORE, THE ORDER OF LD. CIT (A) IS LIABLE TO BE CONFIRMED. 5. AFTER CONSIDERING THE ORDERS OF AO AND LD. CIT ( A) WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A). UNDISPUTEDLY, NO NOTICE UN DER SECTION 143(2) WAS ISSUED TO THE ASSESSEE, WHICH IS MANDATORY FOR ASSUMING JURISDICT ION FOR COMPLETION OF ASSESSMENT. THE HONBLE APEX COURT IN CASE OF HOTEL BLUE MOON (SUPR A) HAS HELD THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) WITHIN THE PRESCRIBED TIME IS MANDATORY AND IF THE NOTICE IS NOT ISSUED WITHIN THE PRESCRIBED TIME, THEN THE ASSESSM ENT SO COMPLETED IS WITHOUT JURISDICTION. 6. SIMILAR VIEW HAS BEEN TAKEN BY THE TRIBUNAL IN C ASE OF KAILASH NATH MALHOTRA, 34 SOT 541 (MUM). SIMILAR VIEW HAS BEEN EXPRESSED IN T HE CASE OF CIT VS. PAWAN GUPTA, 318 ITR 322 (SC) ALSO. THE LD. CIT (A) HAS FOLLOW ED THESE DECISIONS. THEREFORE, WE SEE NO REASON TO INTERFERE WITH THE FINDING OF LD. CIT (A) WHICH REMAINED UNCONTROVERTED ALSO ON THE LEGAL ISSUE. 7. REGARDING SECOND GROUND OF THE DEPARTMENT THAT L D. CIT (A) HAS NOT DECIDED THE ISSUE ON MERIT, ONCE THE ASSESSMENT WAS QUASHED BY HOLDING THAT THE SAME WAS WITHOUT JURISDICTION, THEREFORE, THE OTHER GROUND BECAME AC ADEMIC IN NATURE. THEREFORE, WE 3 UPHOLD THAT THE LD. CIT (A) WAS JUSTIFIED IN NOT DE CIDING THE GROUND AT THAT POINT OF TIME. ACCORDINGLY, THIS GROUND OF THE DEPARTMENT IS ALSO DISMISSED. 8. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMI SSED. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 22. 7.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- THE ITO WARD 1(2),KOTA. SHRI YOGENDRA KUMAR KHURANA, KOTA. THE CIT (A) THE CIT THE D/R GUARD FILE (ITSSA NO. 1/JP/2011) BY ORDER, AR ITAT JAIPUR.