ACIT, Ernakulam V. Smt..Naseema, Kalamasserry

MA 119/COCH/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3985 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 3 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 11-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 21-11-2014
• Court: TRIBUNAL
• Department Lawyers: K P GOPAKUMAR
• Assessee Lawyers: P K SASIDHARAN
• Keywords: Assessment record; Tax effect
• Section: 148

Judgement Text

M.A. NO.119 /COCH/2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI B P JAIN, AM & GEORGE GEORGE.K, JM M.A. NO. 119/COCH/2014 (ARSG. OUT OF I.TA,. NO. 757/COCH/2013 (ASST YEAR: 2008-09 ) THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2, ERNAKULAM SMT. NASEMA, VELUTHEDATH HOUSE, KALAMASSERY. KOCHI-683 503. (REVENUE -APPELLANT) VS (ASSESSEE -RESPONDENT) PAN NO. AJLNPN 8669F] ASSESSEE BY SHRI P.K. SASIDHARAN, SR. DR REVENUE BY SHRI K.P. GOPAKUMAR, SR. DR DATE OF HEARING 11/03/2016 DATE OF PRONOUNCEMENT 11/03/2016 ORDER PER B P JAIN, AM: THE REVENUE HAS MOVED THIS MISCELLANEOUS PETITION ON THE FOLLOWING GROUNDS: A) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ITAT ERRED IN CANCELING THE ASSESSMENT ORDER. B) AS PER THE HONBLE ITAT, THE NOTICE U/S. 148 WAS NOT SERVED UPON THE ASSESSEE . BUT ASSESSEE VIDE HER LETTER DATED 05/1 1/2012 HAD SUO MOTO ACCEPTED THE RECEIPT OF NOTICE U/S. 148. C) EVEN IF 05-11-2012 IS TREATED AS THE ACTUAL DATE OF SERVICE OF THE NOTICE, THE SERVICE CANNOT BE TREATED AS NULL AND VOID AS I T IS WITHIN THE TIMELINES PRESCRIBED UNDER THE ACT. ONCE THE NOTICE IS SERVED WITHIN THE TIMELINES OF THE ACT, THE RESULTANT ASSESSMENT ORDER CANNOT BE C ANCELLED. M.A. NO.119 /COCH/2014 2 D) ASSESSEE WHILE RAISING THE GROUNDS FOR FILING AP PEAL BEFORE ITAT STATED THAT THE ALLEGED NOTICE U/S. 148 WAS MARKED AS RPA D WHICH CLEARLY INDICATES THE RECEIPT OF THE NOTICE. E) SERVICE OF NOTICE IN SUBSTANCE MEANS LETTING THE ASSESSEE KNOW OF THE REQUIREMENTS OF THE NOTICE. ONCE THE ASSESSEE IS I N KNOWLEDGE OF THE REQUIREMENTS OF THE NOTICE, LEGALLY THE PROCEEDINGS INITIATED CANNOT BE TREATED AS NULL AND VOID JUST BECAUSE OF THE ABSENC E OF PHYSICAL EVIDENCE IN THE FORM O ACKNOWLEDGE SLIP IN SPECIFIC FOR HAVI NG BEING SERVED THE NOTICE. (F) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ITATS DECISION IS WITHOUT EVALUATING THE FACTUAL AND MATERIAL ASPECTS RELATIN G TO THE ISSUE OF SERVICE OF NOTICE AND THEREFORE, IT IS UNJUST AND DEVOID OF MERIT. 2. THE TRIBUNAL HAS DECIDED THIS ISSUE IN FAVOUR OF TH E ASSESSEE BY OBSERVING AS UNDER: 5. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE MAIN CONTENTION OF THE ASSESSEE WAS THAT NOTICE U/S. 148 WAS NOT SERVED ON THE ASSESSEE. TO VERIFY THE SAME, THE BENCH CALLED UPON THE LD. DR TO SUBMIT ASSESSME NT RECORD TO SHOW EVIDENCE TO SUGGEST SERVICE OF NOTICE ISSUED U/S. 148 OF THE AC T. HOWEVER, THE ASSESSMENT RECORD SUBMITTED BY THE LD. DR DOES NOT CONTAIN EVIDENCE O F SERVICE OF NOTICE ISSUED U/S. 148 OF THE ACT. IN THE ABSENCE OF VALID SERVICE OF NOT ICE ISSUED U/S. 148, WE ARE NOT IN A POSITION TO UPHOLD THE ORDER PASSED BY THE LOWER AU THORITIES. THE ASSESSMENT PROCEEDINGS WERE VOID AS NO NOTICE U/S. 147/148 WAS SERVED ON THE ASSESSEE. 6. THE LD. DR SUBMITTED THAT SINCE THE ASSESSEE REGULARLY PARTICIPATED IN THE ASSESSMENT PROCEEDINGS, IT IS TO BE HELD VALID. IN OUR OPINION, THE NON SERVICE OF VALID NOTICE U/S. 148 WAS NOT A CURABLE MISTAKE UNDER THE PROVISIONS OF SECTION 292B OF THE I.T. ACT WHICH LEADS TO LEGAL INFIRMITY. THE ASSES SMENT FRAMED THEREAFTER IS VOID. IN THE ABOVE CIRCUMSTANCES, WE CANCEL THE ASSESSMENT ORDER . 3. ON PERUSAL OF THE IMPUGNED ORDER OF THE TRIBUN AL, WE NOTICE THAT THE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION AFTER PERUS AL OF THE RECORDS. THE TRIBUNAL HAS GIVEN A CATEGORICAL FINDING THAT THERE IS NO SERVICE OF NOTICE M.A. NO.119 /COCH/2014 3 U/S. 148 OF THE ACT. IF THIS MISCELLANEOUS PETITI ON IS ENTERTAINED, IT WOULD TANTAMOUNT TO RE-HEARING OF THE CASE AND NOT CORREC TING A MISTAKE APPARENT FROM RECORD. MOREOVER THE TAX EFFECT IN T HIS CASE IS LESS THAN RS. 5 LAKHS. FOR THE AFORESAID REASONING, WE ARE OF THE VIEW THAT THIS MISCELLANEOUS PETITION IS NOT MAINTAINABLE AND ACCO RDINGLY, WE DISMISS THE SAME. IT IS ORDERED ACCORDINGLY. 4. IN THE RESULT, THE MISCELLANEOUS PETITION FILE D BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN CO URT ON 11 -03-2016 SD/- SD/- ( GEORGE GEORGE.K) (B P JAIN ) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : COCHIN DATED: 11RTH MARCH, 2016 GJ COPY TO: 1. SMT. NASEEMA, VELUTHEDATH HOUSE, KALAMASSERY, K OCHI-683 503. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRA LCIRCLE-2, ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-III, KOC HI. 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. DR/ITAT, COCHIN 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN M.A. NO.119 /COCH/2014 4 1. DATE OF DICTATION : 11/03/2016 2.DATE ON WHICH THE TYPED DRAFT IS PLACED 11/03/2016 BEFORE THE DICTATING MEMBER OTHER MEMBER: 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . PS/PS: 11/03/2016 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER : 11/03/2016 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. PS/PS : 11/03/2016 6. DATE ON WHICH THE FILE GOES TO BENCH CLERK: 11/ 03/2016 7. DATE ON WHICH THE FILE GOES TO HEAD CLERK: 8. DATE ON WHICH THE FILE GOES TO ASSISTANT REGISTR AR 9. DATE OF DISPATCH OF THE ORDER: