Income Tax Officer-5(1), Lucknow V. Shri Anil Kumar Goel, Lucknow

MA 116/LKW/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2853 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1995-1996
• Appeal Filed On: 26-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R RASTOGI
• Keywords: Reopening of assessment
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NOS.116 & 117/ LKW/20 14 (ARISING OUT OF I.T.A.NOS.144 & 145/LKW/2013) ASSESSMENT YEARS:1995 - 96 & 1996 - 97 INCOME TAX OFFICER - 5(1), LUCKNOW. VS. SHRI ANIL KUMAR GOEL, 51, G. B. MARG, LUCKNOW. PAN:AEOPG5987Q (A PPLICANT ) (RESPONDENT) APPLICANT BY SHRI AMIT NIGAM, D.R. RESPONDENT BY SHRI K. R. RASTOGI, C. A. DATE OF HEARING 09/01/2015 DATE OF PRONOUNCEMENT 2 4 /02/2015 O R D E R PER A. K. GARODIA, A.M. BOTH THESE MISC. APPLICATION S ARE FILED BY THE REVENUE POINTING OUT CERTAIN MISTAKES IN THE COMBINED TRIBUNAL ORDER DATED 28/02/2014 FOR ASSESSMENT YEAR 95 - 96 & 96 - 97. THE ALLEGED MISTAKE POINTED OUT IN BOTH THE MISC. APPLICATIONS IS IDENTICAL. 2. THE GRIEVANCE OF THE REVENUE REGARDING ALLEGED MISTAKE IN THE TRIBUNAL ORDER IS CONTAINED IN PARA 3 OF THE MISC. APPLICATIONS, WHICH IS IDENTICAL IN BOTH THE MISC. A PPLICATIONS AND HENCE, THIS PARA NO. 3 OF THE MISC. APPLICATION IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 3. IT IS THUS CLEAR THAT THE HON'BLE ITAT HAS NOT DECIDED THE ISSUE OF REOPENING OF ASSESSMENT ON THE BASIS OF REPORT OF DVO. A COPY OF JUDGMENT IN THE CASE OF SHRI MOHD. AYUB VS. ITO [2012] [ 2 ] 346 ITR 30 (ALLD) DATED 01.03.2012 IS ENCLOSED HEREWITH. A PERUSAL O F THIS ORDER REVEALS THAT THIS ORDER IS IN FAVOR OF REVENUE AND THE HON'BLE HIGH COURT HAS UPHELD THE VALIDITY OF NOTICE U/S 148. THE INTERPRETATION OF LAW AS MADE OF THE HON'BLE ITAT APPEARS TO BE INCORRECT AS NO SUCH RATIO AS MENTIONED BY THE HON'BLE ITA T IN ITS ORDER IS TO BE FOUND IN THE ORDER OF THE HON'BLE HIGH COURT. ACCORDINGLY THE ORDER PASSED BY THE HON'BLE ITAT NEEDS TO MODIFIED AS IT IS APPARENTLY BASED ON WRONG INTERPRETATION OF LAW. 3. LEARNED D.R. OF THE REVENUE REITERATED THE SAME CONTENTI ONS, WHICH ARE RAISED IN PARA 3 OF THE MISC. APPLICATION WHEREAS LEARNED A.R. OF THE ASSESSEE SUBMITTED THAT THERE IS NO MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THERE ARE TWO SEPARATE JUDGMENTS OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF THE SAME ASSESSEE I.E. MOHD. AYUB VS. INCOME TAX OFFICER. THE JUDGMENT REPORTED ON PAGE NO. 30 OF 346 ITR IS FOR THE ASSESSMENT YEAR 96 - 97 WHEREAS THE COPY OF JUDGMENT SUBMITTED BY THE REVENUE ALONG WITH THE MI SC. APPLICATION IN I.T.A. NO.123 OF 2004 IS FOR ASSESSMENT YEAR 94 - 95. THE TRIBUNAL HAS DECIDED THE ISSUE AS PER THE IMPUGNED ORDER BY FOLLOWING THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT FOR ASSESSMENT YEAR 96 - 97 IN WHICH IT IS HELD BY HON'BLE ALLAHABA D HIGH COURT THAT THE ASSESSING OFFICER IS OBLIGED TO ISSUE SEPARATE NOTICE FOR EACH ASSESSMENT YEAR AND IF THE ASSESSING OFFICER HAS ISSUED A COMBINED NOTICE FOR MORE THAN ONE ASSESSMENT YEAR S THEN SUCH NOTICE DOES NOT MEET THE REQUIREMENT OF SECTION 148 OF THE ACT AND THEREFORE, ENTIRE ASSESSMENT PROCEEDINGS ARE WHOLLY WITHOUT JURISDICTION. WE FIND THAT IN THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT FOR ASSESSMENT YEAR 94 - 95, IT IS NOTED THAT ONE COMPOSITE NOTICE U/S 148 WAS ISSUED FOR ASSESSMENT YEAR 9 4 - 95 TO 97 - 98 BUT THE ASSESSEE HAS FILED RETURN OF INCOME IN COMPLIANCE TO THIS NOTICE FOR ASSESSMENT YEAR 94 - 95 AND DID NOT FILE ANY RETURN OF INCOME FOR THE REMAINING THREE ASSESSMENT YEARS. UNDER THESE FACTS , IT WAS THE ARGUMENT OF LEARNED COUNSEL FOR THE REVENUE BEFORE HON'BLE ALLAHABAD HIGH COURT THAT EVEN IF IT IS ACCEPTED THAT THE COMPOSITE NOTICE U/S 148 FOR FOUR ASSESSMENT [ 3 ] YEARS COULD NOT HAVE BEEN ISSUED , YET THE SAID NOTICE SHOULD HAVE BEEN CONFI N ED TO THE ASSESSMENT YEAR IN QUESTION I.E. ASSESS MENT YEAR 94 - 95 AND THE ASSESSEE HAVING FILED THE RETURN OF INCOME IN COMPLIANCE THEREOF CANNOT BE SAID TO HAVE ANY GRIEVANCE FOR THE ASSESSMENT YEAR 94 - 95. UNDER THESE FACTS AND ON THESE CONSIDERATIONS, IT WAS HELD BY HON'BLE ALLAHABAD HIGH COURT THAT TH E NOTICE ISSUED U/S 148 FOR ASSESSMENT YEAR 94 - 95 CANNOT BE SAID TO BE INVALID BUT IN ASSESSMENT YEAR 96 - 97, IT WAS HELD BY HON'BLE ALLAHABAD HIGH COURT THAT THE COMPOSITE NOTICE ISSUED U/S 148 IS NOT VALID FOR ASSESSMENT YEAR 96 - 97. HENCE, IN THE FACTS O F THE PRESENT CASE, THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT FOR ASSESSMENT YEAR 96 - 97 IN THE CASE OF MOHD. AYUB VS. INCOME TAX OFFICER [2012] 346 ITR 30 (ALL) IS APPLICABLE AND NOT THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF S AME ASSESSEE FOR ASSESSMENT YEAR 94 - 95. THEREFORE, WE DO NOT FIND ANY APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 5. IN THE RESULT, BOTH THE MISC. APPLICATIONS OF THE REVENUE ARE DI S MISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 2 4 /02/2015 *C.L.SINGH COPY OF THE O RDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A ) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR