Income Tax Officer-4(4), Lucknow V. Surendra Kumar Gupta, Lucknow

MA 118/LKW/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3327 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Assessment record

Judgement Text

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.118 TO 121/LKW/2014 [ARISING OUT OF ITA NOS.577/LKW/2012 AND 58 TO 60/LKW/2013] ASSESSMENT YEAR:2008-09 INCOME TAX OFFICER IV(4) LUCKNOW V. SHRI. SURENDRA KUMAR GUPTA PROP. SHIVA ENTERPRISES, PLOT NO.2, MALVIYA NAGAR AISHBAGH, LUCKNOW PAN:AEZPG4640M (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI. HARISH GIDWANI, D.R. RESPONDENT BY: SHRI. RAKESH GARG, ADVOCATE DATE OF HEARING: 24 04 2015 DATE OF PRONOUNCEMENT: 05 06 2015 O R D E R PER SUNIL KUMAR YADAV: THESE MISCELLANEOUS APPLICATIONS ARE PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 11.4.2014 IN I.T.A. NOS. 577/LKW/2012 AND 58 TO 60/LKW/2013 WITH THE SUBMISSION THAT THE TRIBUNAL HAS TAKEN INTO ACCOUNT INCORRECT FACTS WHILE DISPOSING OF THE APPEALS, THEREFORE, AN ERROR IS CREPT IN THE ORDER OF THE TRIBUNAL, FOR WHICH RECTIFICATION IS CALLED FOR. 2. THE LD. D.R. HAS FURTHER CONTENDED THAT NOTICE UNDER SECTION 143(2) OF THE ACT DATED 29.9.2009 WAS PROPERLY SERVED UPON THE ASSESSEE THROUGH SPEED POST ON 29.9.2009 AND ALSO BY AN AFFIXTURE ON 30.9.2009 WHICH IS AVAILABLE ON RECORD AND THE ASSESSMENT IN THE INSTANT CASE WAS COMPLETED BY THE NEW INCUMBENT TO WHOM THE JURISDICTION CAME FROM 1.6.2010. THEREFORE, THERE IS NO ILLEGALITY IN THE ASSESSMENT ORDER AND THE :- 2 -: TRIBUNAL HAS TAKEN INTO ACCOUNT INCORRECT FACTS. THEREFORE, THE ORDER OF THE TRIBUNAL DESERVES TO BE RECALLED. 3. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS CONTENDED THAT DURING THE COURSE OF HEARING, THE TRIBUNAL HAS TAKEN INTO ACCOUNT THE ENTRIES RECORDED BY THE ASSESSING OFFICER IN THE ORDER SHEET DURING THE ASSESSMENT PROCEEDINGS. DURING THE COURSE OF HEARING, THE DEPARTMENT WAS AFFORDED SUFFICIENT TIME AND OPPORTUNITY TO CONTROVERT THE PROCEEDINGS RECORDED BY THE ASSESSING OFFICER IN THE ORDER SHEET, BUT THE LD. D.R. NEITHER PRODUCED THE ASSESSMENT RECORD NOR ANY OTHER EVIDENCE TO CONTROVERT THE PROCEEDINGS RECORDED BY THE ASSESSING OFFICER. 4. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDER OF THE TRIBUNAL VIS--VIS THE MISCELLANEOUS APPLICATION, WE FIND THAT THE CONTROVERSY RAISED BEFORE THE TRIBUNAL WAS WITH REGARD TO THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT THE ASSESSEE HAD APPLIED TO THE POSTAL AUTHORITIES TO VERIFY THE ISSUANCE OF NOTICE THROUGH SPEED POST, BUT THE POSTAL AUTHORITIES DID NOT CONFIRM THE ISSUANCE OF NOTICE THROUGH SPEED POST TO THE ASSESSEE. THEREAFTER HE FILED A COPY OF THE ORDER SHEET DATED 29.9.2010, ACCORDING TO WHICH THE CASE WAS SELECTED FOR SCRUTINY WITH THE APPROVAL OF THE CCIT AND NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED FOR 7.10.2010 WHEREAS IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS MENTIONED THAT NOTICE WAS ISSUED ON 29.9.2009. THE ASSESSEE HAS TAKEN A PLEA THAT THE RETURN WAS FILED ON 29.9.2009 AND NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED UPON THE ASSESSEE ON OR BEFORE 30.9.2009. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. D.R. WAS DIRECTED TO PRODUCE THE ASSESSMENT RECORD, BUT IT WAS NOT PRODUCED DESPITE OPPORTUNITIES AFFORDED TO THE LD. D.R. COPIES OF THE ORDER SHEETS WERE ALSO SUPPLIED TO THE LD. D.R. AND THE LD. D.R. WAS ASKED TO MAKE COMMENTS THEREON, BUT NOTHING WAS PLACED ON RECORD TO :- 3 -: CONTROVERT THE STAND TAKEN BY THE ASSESSEE. THEREFORE, THE TRIBUNAL HAS TAKEN A VIEW THAT WHEN THE CASE WAS SELECTED FOR SCRUTINY WITH THE APPROVAL OF THE CCIT ON 29.9.2010, HOW THE NOTICE UNDER SECTION 143(2) OF THE ACT COULD BE ISSUED ON 29.9.2009 ONE YEAR BEFORE AS RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. EVEN DURING THE COURSE OF HEARING OF THE MISCELLANEOUS APPLICATION, NO EVIDENCE IS PLACED BEFORE US TO CONTROVERT THE CONTENTIONS RAISED ON BEHALF OF THE ASSESSEE DURING THE COURSE OF HEARING OF THE APPEAL. WE ARE, THEREFORE, OF THE VIEW THAT THE TRIBUNAL HAS ADJUDICATED THE ISSUE PROPERLY IN THE LIGHT OF EVIDENCE PLACED BEFORE IT AFTER TAKING INTO ACCOUNT THE RIVAL SUBMISSIONS. WE, THEREFORE, FIND NO MERIT IN THE MISCELLANEOUS APPLICATIONS OF THE REVENUE, AS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL HAS BEEN POINTED OUT. WE ACCORDINGLY REJECT THE SAME. 5. IN THE RESULT, MISCELLANEOUS APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5 TH JUNE, 2015 JJ:0505 COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR