TRIYA HOLDINGS P. LTD, MUMBAI V. ACIT RG 9(3), MUMBAI

ITSSA 7/MUM/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8184 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 02-06-2011
• Assessment Year: misc
• Appeal Filed On: 21-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G P TRIVEDI
• Keywords: Validity of assessment; Procedural lapse
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER IT(SS)A. NO. 07/MUM/2009 (BLOCK PERIOD: 01.04.1996 TO 04.09.2002) M/S. TRIYA HOLDINGS P. LTD. VS. ACIT, RANGE - 9(3) 102, GRURKRUPA, KASTURBA AAYAKAR BHAVAN, M.K. ROAD CROSS ROAD NO. 1, BORIVILI (E) MUMBAI 400020 MUMBAI 400066 PAN - AABCT 4510 C APPELLANT RESPONDENT APPELLANT BY : SHRI SATISH R. MODY RESPONDENT BY: SHRI G.P. TRIVEDI O R D E R PER P.M. JAGTAP, A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LEARNED CIT(A), CENTRAL-I, MUMBAI DATED 17.11.2008 WHEREBY HE UPHELD THE VALIDITY OF ASSESSMENT MADE BY THE A.O. UNDER SECTION 158BC R.W .S. 143(3) AND ALSO CONFIRMED THE ADDITION OF RS.4,49,000/- MADE THEREIN TO THE U NDISCLOSED INCOME OF THE ASSESSEE. 2. IN THE PRELIMINARY ISSUE RAISED IN THIS APPEAL, ASS ESSEE HAS CHALLENGED THE VALIDITY OF ASSESSMENT MADE BY A.O. UNDER SECTION 1 58BC R.W.S. 143(3) VIDE ORDER DATED 21.11.2006 ON THE GROUND THAT THE NOTICE UNDE R SECTION 143(2) WAS NOT ISSUED BY THE A.O. DURING THE PRESCRIBED PERIOD OF 1 YEAR FROM THE DATE OF FILING OF THE RETURN. AS SUBMITTED BY HIM, THE RETURN IN RESPONSE TO NOTI CE UNDER SECTION 158BD WAS FILED BY ASSESSEE ON 26.12.2004 DECLARING ITS TOTAL UNDIS CLOSED INCOME AT NIL WHEREAS THE NOTICE UNDER SECTION 143(2) WAS ISSUED BY THE A.O. ONLY ON 31.07.2006, I.E. AFTER THE PERIOD OF 1 YEAR FROM THE DATE OF FILING OF THE RET URN. THIS POSITION CLEARLY EVIDENT FROM THE ORDER OF ASSESSMENT PASSED BY THE A.O. UNDER SE CTION 158BC R.W.S. 143(3) HAS NOT 2 IT(SS)A.NO.07/MUM/2009 TRIYA HOLIDAYS P. LTD., MUMBAI. BEEN DISPUTED EVEN BY THE LEARNED D.R. IN THE CASE OF ACIT VS. HOTEL BLUE MOON 32`1 ITR 362 (SC) CITED BY THE LEARNED COUNSEL FOR THE A SSESSEE, THE HON'BLE SUPREME COURT HAS HELD THAT IF AN ASSESSMENT IS TO BE COMPLETED U NDER SECTION 158BC R.W.S. 143(3), NOTICE UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN 1 YEAR FROM THE DATE OF FILING OF THE BLOCK RETURN AND OMISSION ON THE PART OF THE AS SESSING AUTHORITY TO ISSUE THE NOTICE UNDER SECTION 143(2) WITHIN THAT PERIOD CANN OT BE A PROCEDURAL IRREGULARITY AND IS NOT CURABLE. IT WAS HELD THAT THE REQUIREMENT OF NOTICE UNDER SECTION 143(2), THEREFORE, CANNOT BE DISPENSED WITH. AS THIS REQUIR EMENT WAS ADMITTEDLY NOT SATISFIED IN THE PRESENT CASE, WE HOLD, RESPECTFULLY FOLLOWIN G THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA ) THAT THE ASSESSMENT MADE BY THE A.O. UNDER SECTION 158BC R.W.S. 143(3) WAS BAD IN LAW AND THE SAME IS LIABLE TO BE CANCELLED. WE ORDER ACCORDINGLY AND ALLOW THE APPEA L OF THE ASSESSEE ON THIS PRELIMINARY ISSUE. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JUNE 2011. SD/ - SD/ - ( V. DURGA RAO ) ( P.M. JAGTAP ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 24 TH JUNE 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CENTRAL - I, MUMBAI 4. THE CIT CENTRAL - I, MUMBAI CITY 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.