The ITO, Ward-6(2), Ahmedabad V. Shri Devendranath G.Chaturvedi, Ahmedabad

ITSSA 384/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1412 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-01-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 03-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Assessee Lawyers: A L THAKKAR
• Keywords: Procedural lapse; Tax effect
• Section: 143(3)

Judgement Text

IT (SS) A NO S . 382, 383, 384 & 385 / AHD/ 201 2 & C.O. NOS.189, 192 & 193/AHD/2012 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD A BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND S S GODARA JM] I T (SS) A NO S.382, 383, 384 & 385/A HD/201 2 BLOCK PERIOD: 01.04.1990 TO 07.03.2001, BLOCK A .YS. 2000 - 01, 2001 - 02 & 2004 - 05 RESPECTIVELY INCOME TAX OFFICER, .APPELLANT WARD - 6(2), AHMEDABAD. VS. DEVENDRANATH G . CHATURVEDI, . RESPONDENT BUNGALOW NO.11/13, NIRANT PARK SOCIETY PART - 1, OPP. SUN N STEP CLUB, THALTEJ, AHMEDABAD. [ P AN: AECPC 9270 L ] C.O. NOS.189, 1 92 & 193/AHD/2012 (IN I T (SS) A NOS.382, 383 & 384 /AHD/2012) BLOCK PERIOD: 01.04.1990 TO 07.03.2001, BLOCK A .YS. 2000 - 01 & 2001 - 02 RESPECTIVELY DEVENDRANATH G. CHATURVEDI, .APPELLANT BUNGALOW NO.11/13, NIRANT PARK SOCIETY PART - 1, OP P. SUN N STEP CLUB, THALTEJ, AHMEDABAD. [ P AN: AECPC 9270 L ] VS. INCOME TAX OFFICER, . RESPONDENT WARD - 6(2), AHMEDABAD. APPEARANCES BY: R.I. PATEL , FOR THE REVENUE A.L. THAKKAR , FOR THE ASSESSEE D ATE OF CONCLUDING THE HEARING: JANUARY 2 8 TH , 201 6 DATE OF PRONOUNCING THE ORDER : JANUARY 29 TH , 201 6 O R D E R PER PRAMOD KUMAR , AM : IT (SS) A NO S . 382, 383, 384 & 385 / AHD/ 201 2 & C.O. NOS.189, 192 & 193/AHD/2012 PAGE 2 OF 5 IT(SS)A NO.382/AHD/2012 FOR BLOCK PERIOD: 01.04.1990 TO 07.03.2001 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNES S OF THE ORDER DATED 23 RD MAY, 201 2 , PASSED BY THE LD. CIT(A), IN THE MATTER OF ASSESSMENT UND E R SECTION 158BC(C) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) FOR THE BLOCK PERIOD 01.04.1990 TO 07.03.200 1 . 2. GRIEVANCES RAISED BY THE ASSESSING OFFI CER ARE AS FOLLOWS: - I) THE LD . COMMISSIONER OF INCOME TAX (A) HAS ERRED IN L A W A ND ON F A CTS IN ANNULLING THE ASSESSMENT ORDER IGNORING THE FACT TH A T THE ASSESSEE HAD NOT RAISED THE OBJECTION IN RESPECT TO THE NON - IS S UE OF NOTICE U/S. 143(2) AT TH E ASSE SSMENT STAGE. II) THE LD . COMMISSIONER OF INCOME TAX (A) HAS ERRED IN L A W A ND ON F A CTS IN NOT DECIDING THE APPEAL ON MERITS. 3. TO ADJUDICATE ON THIS APPEAL, ONLY A VERY FEW MATERIAL FACTS NEED TO BE TAKEN NOTE OF. IT IS AN UNDISPUTED POSITION THAT PUR SUANT T O FILING OF THE RETURN IN RESPONSE TO NOTICE UNDER SECTION 158BC, NO NOTICE UNDER SECTION 143(2) IS SERVED UPON T HE ASSESSEE. YET, THE ASSESSMENT UNDER SECTION 158BC(C) WAS FINALISED A FTER DETAILED SCRUTINY PROCEEDINGS. THE SHORT POINT ON WHICH TH IS ASSESSMENT WAS OBJECTED TO BY THE ASSESSEE IS THAT IN A SITUATION IN WHICH NO SECTION 143(2) NOTICE HAS BEEN ISSUED , THE SCRUTINY ASSESSMENT PROCEEDINGS UNDER SECTION 158BC (C) CANNOT BE RESORTED TO. THIS PLEA HAS BEEN UPHELD BY THE L EARNED CIT ( A ) BY OB SERVING AS FOLLOWS : - 8 . THE ABOVE FACTS CLEARLY REVEALS THAT APPELLANT HAS FILED INCOME - TAX RETURN U/S. 158BC(A) IN RESPONSE TO THE STATUTORY NOTICE I SS UED BY THE A . O . U/S. 158BC OF THE I.T. ACT. EVEN AFTER FILING OF A VALID INCOME - TAX RETURN IN FORM N O.2B BY THE APPELLANT, THE A.O. HAS NOT ISSUED NOTICE U/S. 143(2) OF THE I.T. ACT AND PROCEEDED TO DETERMINE THE UNDISCLOSED INCOME OF RS.3,15,98,020/ - . TH IS ACTION OF THE A.O. IS IN REPUDIATION OF TH E I.T. RETURN FILED BY THE APPELLANT WHEREIN UNDISCLOSE D NIL INCOME HAS BEEN DECLARED. IT (SS) A NO S . 382, 383, 384 & 385 / AHD/ 201 2 & C.O. NOS.189, 192 & 193/AHD/2012 PAGE 3 OF 5 SINCE NOTICE U/S. 143(2) HAS NOT BEEN ISSUED A ND SERVED UPON THE APPELLANT BY THE A . O . BEFORE COMPLETING THE ASSESSMENT U/S. 158BC OF THE I.T. ACT, THEREFORE, THE IMPUGNED ASSESSMENT ORDER SUFFERS FROM JURISDICTIONAL ERROR. IN VIEW OF THE ABOVE, THE IMPUGNED ASSESSMENT ORDER IS ANNULLED AND THE ADDITIONAL GROUND RAISED BY THE APPELLANT IS ALLOWED. SINCE ASSESSMENT ORDER HAS BEEN ANNULLED, OTHER GROUNDS BECOME INFRUCTUOUS AND THE SAME IS TAKEN AS ALLOWED FOR STATISTICAL PUR POSE. 4. THE ASSESSING OFFICER IS AGGRIEVE D AND IS IN APPEAL BEFORE US. 5. LEARNED DEPARTMENTAL REPRESENTATIVE S BASIC CONTENTION IS THAT EVEN THOUGH NO SPECIFIC NOTICE UNDER SECTION 143(2) HAS BEEN ISSUED , EVEN THE LETTER ISSUED BY THE ASSESSING OFFI CER SEEKING INFORMATION FROM THE ASSESSEE IS I N PITH AND SUBSTANCE THE SAME THING AS A NOTICE UNDER SECTION 143(2) . HE SUBMITS THAT IN TERMS OF SECTION 292 B SUCH A PROCEDURAL DEFICIENCY CANNOT BE FATAL TO THE ASSESSMENT ORDER ITSELF. HE THEN SUBMITS TH AT SO FAR A HON BLE SUPREME COURT S JUDGEMENT IN THE CASE OF ACIT & ANOTHER VS. HOTEL BLUE MOON , 321 ITR 362 (SC) IS CONCERNED , THAT WAS DEALING WITH THE SITUATION IN WHICH NO NOTICE WAS ISSUED AT ALL. IT IS CONTENDED THAT THE RATIO OF HOTEL BLUE MOON S D ECISION WILL NOT APPLY ON THE FACTS OF THIS C A SE. 6. LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, RELIES UPON THE LE ARNED CIT(A) S ORDER AND CONTEND S THAT AS IS THE SETTLED LEGAL POSITION , IN THE LIGHT OF HON BLE SUPREME COURT S JUDGMENT IN THE CASE OF HOTEL BLUE MOON (SUPRA) , ISSUANCE OF NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH. IT IS FOR THIS BASIC REASON TH A T THE A SSESSMENT O RDER P A SSED BY THE ASSESSING OFFICER WAS INHERENTLY VITIATED IN LAW AND THE LEARNED CIT(A) WAS QUITE JUSTIF IED IN HOLDING SO. IT (SS) A NO S . 382, 383, 384 & 385 / AHD/ 201 2 & C.O. NOS.189, 192 & 193/AHD/2012 PAGE 4 OF 5 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. WE FIND THAT HON BLE SUPREME COURT HAS CATEGORICALLY HELD THAT EVEN FOR THE PURPOSE OF CHAPTER XIV - B OF THE ACT, FOR THE DETERMINATION OF UNDISCLOSED INCOME FOR A BLOCK PERIOD UNDER THE PROVISIONS OF SECTION 158BC , THE PROVISIONS OF SECTION 142 AND SUB - SECTION S (2) A ND (3) OF SECTION 143 ARE APPLICABLE AND NO ASSESSMENT COULD BE M ADE WITHOUT ISSUING NOTICE UNDER SECTION 143(2) OF THE ACT. AS A MATTER OF FACT , HON BLE SUPREME COURT HAS CATEGORICALLY HELD THAT IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECTION 143(3) RE A D WITH SECTION 158 B C, NOTICE UNDER SECTION 143(2) SHOULD BE ISSU ED WITHIN ONE YEAR FROM THE DATE OF FILING OF THE BLOCK RETURN , A ND THAT OMISSION ON THE PART OF THE A SSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY A ND THE SAME IS NOT CURABLE AND, THEREFORE , THE REQUIREMENT O F NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH . THE LAW LAID DOWN BY THEIR LORDSHIPS IS UNAMBIGUOUS AND INCAPABLE OF BEING GIVEN ANY O T HER INTERPRETATION OTHER THAN THE INTERPRETATION A S GIVEN BY THE LEARNED CIT(A). WE, THEREFORE, UPHOLD THE ACT ION OF THE LEARNED CI T(A) AND DECLINE TO INTERFERE IN THE MATTER. 8. IN THE RESULT, APPEAL I.E. IT(SS)A NO.382/AHD/2012 IS DISMISSED. 9. AS FOR THE REMAINING APPEALS FILED BY THE REVENUE I.E. IT(SS)A NOS. 383, 384 & 385/AHD/2012 FOR BLOCK A .YS. 2000 - 01, 20 01 - 02 & 2004 - 05 RESPECTIVELY , WE FIND THAT THE TAX EFF E CT IN EACH OF T HESE A PPE A LS IS LESS THAN RS.10,00,000/ - . THIS POSITION HAS NO T BEEN CON T ROVERTE D BY THE LEARN E D DEPARTMENTAL REPRESENTATIVE ALSO. IN THIS VIEW OF THE MATTER AND BEARING IN MIND THE CB DT CIRCULAR NO.21/2015 DATED 10 TH DECEMBER, 2015, THESE APPEALS ARE LIABLE TO BE SUMMARILY DISMI SS ED A S IT (SS) A NO S . 382, 383, 384 & 385 / AHD/ 201 2 & C.O. NOS.189, 192 & 193/AHD/2012 PAGE 5 OF 5 WITHDRAWN. W E ACCORDINGLY DISMISS THESE THREE A PPEALS I NVOLVING TAX EFFECT OF LESS THAN RS.10,00,000/ - . 10. IN THE RESULT, IT(SS)A NOS. 383, 384 & 385/ AHD/2012 ARE DISMISSED. 11. AS FOR THE CROSS OBJECTIONS FILED BY THE ASSESSEE I.E. C.O. NOS.189, 192 & 193/AHD/2012, LEARNED COUNSEL FOR THE ASSESSEE VERY FAIRLY SUBMITTED THAT THESE CROSS OBJECTIONS ONLY SUPPORT THE CONCLUSION ARRIVED AT BY T HE L EARNED C IT(A) AND SINCE THE APPEALS ARE DISMISSED, THESE CROSS OBJECTIONS BEC A ME INFRUCTUOUS. ACCORDINGLY, ALL THE SE THREE CROSS OBJECTIONS ARE DISMISSED A S INFRUCTUOUS. 12. TO SUP UP, ALL THE APP E ALS FILED BY THE REVENUE AND ALL THE CROSS OBJECTIONS FILED BY TH E ASSESSEE ARE DISMISSED. P RONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JANUARY, 2016. SD/ - SD/ - S S GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 29 TH DAY OF JANUARY , 201 6 . PBN/ * COPIES TO : (1) THE APPE LLANT ( 2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLA TE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD