The ACIT,B.K.Circle, Palanpur V. Shri Damodardas Mohanlal Thakkar, Deesa

ITSSA 210/AHD/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8313 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 10-07-2012
• Assessment Year: misc
• Appeal Filed On: 27-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Period of limitation
• Section: 143(3)

Judgement Text

IT(SS) A NO.210/AHD/2012 BLOCK PER IOD 1-4-89 TO 28-3- 2000 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T.(SS) A. NO.210/AHD/2012 (BLOCK PERIOD 1-4-89 TO 28-3-2000) ASSISTANT COMMISSIONER OF TAX, BANASKANTHA CIRCLE, PALANPUR. (APPELLANT) VS. SHRI DAMODARDAS MOHANLAL THAKKAR, PROP . RAJESH ALANKAR JEWELLERS, SONY BAZAR, DEESA (RESPONDENT) PAN: ABHPT 6974G APPELLANT BY : MR.RAKESH AGRAWAL, SR. D.R. RESPONDENT BY : MR.M.K. PATEL. ( )/ ORDER DATE OF HEARING : 10 - 7 -2012 DATE OF PRONOUNCEMENT : 03-8-2012 PER: SHRI ANIL CHATURVEDI, A.M. THE REVENUE HAS FILED APPEAL AGAINST THE ORDER OF L D. CIT (A)-XX, AHMEDABAD DATED 18-1-2012 FOR THE BLOCK PERIOD 1-4 -89 TO 28-3-2000 RAISING EFFECTIVE GROUND AS UNDER:- THE LD. CIT (A)-XX, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE THE ADDITIONS MADE AND ACCEPT THE IT(SS) A NO.210/AHD/2012 BLOCK PER IOD 1-4-89 TO 28-3- 2000 . 2 INCOME RETURNED, WITHOUT TAKING INTO ACCOUNT THE PR OVISIONS OF SECTION 292BB OF THE ACT. 2. IN THIS CASE THE ASSESSMENT ORDER WAS PASSED UND ER SECTION158BC ON 28-3-2002 DETERMINING THE UNDISCLOSED INCOME OF RS..38,83,130/- AS AGAINST THE RETURNED UNDISCLOSED INCOME OF RS. NIL. AGAINST THE ORDER OF A.O., THE ASSESSEE CARRIED THE MATTER BEFORE CIT (A ). 3. CIT (A) VIDE ORDER DATED 19-9-2002 GRANTED RELIE F OF RS.33,44,040/- TO THE ASSESSEE AND UNDISCLOSED INCOME WAS DETERMINED AT RS.5,34,100/-. AGAINST THE ORDER OF CIT (A), ASSESSEE PREFERRED AP PEAL BEFORE THE ITAT WHEREIN THE ASSESSEE RAISED THE GROUND ABOUT THE NO N ISSUANCE OF NOTICE U/S. 143(2). BEFORE HONBLE ITAT IT WAS CONTENDED B Y THE ASSESSEE THAT NOTICE U/S.143(2) WAS NOT SERVED UPON HIM. HONBLE TRIBUNAL VIDE ORDER DATED 10-4-2008 IN IT (SS) 342 & 357/AHD/2002 RESTO RED THE MATTER TO THE FILE OF CIT (A) AND DIRECTED HIM TO ASCERTAIN WHETH ER THE NOTICE WAS ISSUED WITHIN THE PERIOD OF LIMITATION PRESCRIBED IN THE S TATUTE. PURSUANT TO THE DIRECTION OF ITAT, CIT (A) VIDE ORDER DATED 18-1-20 12 GAVE A FINDING TO THE EFFECT THAT NOTICE U/S. 143(2) WAS NOT ISSUED TO TH E ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S. 158BC. HE FUR THER HELD THAT THERE WAS NO MENTION OF ISSUANCE OF NOTICE U/S. 143(2) IN THE ASSESSMENT ORDER DATED 28-3-2002 PASSED U/S.158BC. CIT (A) THUS RELY ING ON THE DECISION OF ACIT VS. HOTEL BLUE MOON (2010) 321 ITR 0362 (SC) A ND VIRENDRA DEV DIXIT VS. ACIT (2011) 331 ITR 0483 (ALL HC) DIRECTE D THE A.O. TO DELETE THE ADDITIONS MADE AND ACCEPT THE INCOME RETURNED BY TH E ASSESSEE. AGAINST THIS ORDER OF CIT (A), REVENUE IS NOW IN APPEAL BEF ORE US. IT(SS) A NO.210/AHD/2012 BLOCK PER IOD 1-4-89 TO 28-3- 2000 . 3 4. BEFORE US, THE LD. D.R. CONTENDED THAT AS PER T HE PROVISIONS OF SECTION 292BB WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR CO- OPERATED IN ANY INQUIRY RELATING TO ASSESSMENT OR R E-ASSESSMENT IT SHALL BE DEEMED THAT NOTICE WHICH IS REQUIRED TO BE SERVED U PON HIM , HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND THE ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDINGS OR INQUIRY UNDER THE ACT. HE ALSO RELIE D ON THE PROVISIONS OF SEC124(3) WHEREIN IT IS PROVIDED THAT NO PERSON SHA LL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER. IT WAS THUS CONTENDED THAT IN VIEW OF THE PROVISIONS OF SECTION 292BB AND 124 (3) THE NOTICE MAY DEEMED TO HAVE BEEN SERVED ON THE ASSESSEE AND THE ASSESSMENT MADE BY THE A.O. BE UPHELD. 5. THE LD. A.R. ON THE OTHER HAND SUBMITTED THAT OM ISSION ON THE PART OF A.O. TO ISSUE . NOTICE U/S. 143(2) CANNOT BE CONSIDERED TO BE A PRO CEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE. HE FURTHE R SUBMITTED THAT NO ASSESSMENT COULD BE MADE WITHOUT ISSUING NOTICE U/S . 143(2) HE ALSO RELIED ON THE DECISION OF APEX COURT IN THE CASE OF ACIT V S. HOTEL BLUE MOON (SUPRA). HE THEREFORE, CONTENDED THAT THE ORDER OF THE CIT (A) BE UPHELD. 6. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD. IT IS A FACT THAT THE CIT (A) AFTER VERIFYING THE A SSESSMENT RECORDS HAS GIVEN A FINDING THAT NOTICE U/S. 143(2) WAS NOT ISSUED DU RING THE COURSE OF ASSESSMENT PROCEEDINGS U/S. 158BC. FURTHER THERE WA S NO MENTION OF ISSUE OF NOTICE U/S. 143(2) IN THE ASSESSMENT ORDER PASSED U/S. 158BC. REVENUE COULD NOT CONTROVERT THESE FACTS BY BRINGIN G ANY MATERIAL TO THE IT(SS) A NO.210/AHD/2012 BLOCK PER IOD 1-4-89 TO 28-3- 2000 . 4 CONTRARY ON RECORD. HONBLE APEX COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON (321 ITR 362) HAS HELD THAT IF AN ASSESSMENT I S TO BE COMPLETED U/S. 143(3) R.W.S.158BC, NOTICE U/S. 143(2) SHOULD BE IS SUED WITHIN THE YEAR FROM THE DATE OF FILING OF BLOCK RETURN. OMISSION O N THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE U/S. 143(2) CANNOT BE A P ROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND THEREFORE THE REQUIREME NT OF NOTICE U/S. 143(2) CANNOT BE DISPENSED WITH. IN VIEW OF THE FACT THAT NO NOTICE U/S. 143(2) WAS ISSUED TO ASSESSEE WITHIN THE PRESCRIBED TIME AND R ELYING ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF HOTEL BLUE MOON ( SUPRA) WE FIND NO INFIRMITY IN THE ORDER PASSED BY LD. CIT (A). WE TH EREFORE, UPHOLD THE ORDER OF CIT (A) AND DISMISS THE APPEAL OF THE REVENUE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON 3-8- 2012. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. IT(SS) A NO.210/AHD/2012 BLOCK PER IOD 1-4-89 TO 28-3- 2000 . 5 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) XX, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 10 - 7 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 27 / 7 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 1 - 8 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..