Kamal Dev Vashisht, V. ACIT, Circle-28(1),

MA 121/DEL/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4702 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: misc
• Appeal Filed On: 17-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY AWASTHI
• Keywords: Opportunity of being heard; Block assessment

Judgement Text

M.A.NO.121/DEL/2010 IN I.T.A. NO. 268 /DEL/2003 1/3 IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH G BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER AND SHRI A K GARODIA, ACCOUTANT MEMBER M.A. NO.121/DEL/2010 IN ITA NO. 268 /DEL/2003 (BLOCK PERIOD 1.4. 1989 TO 12.11.1999) KAMAL & CO. VS. ACIT, WARD 28(1), PROP. KAMAL DEV VASHISHT, NEW DELHI 1-89, ASHOK VIHAR, PHASE I, NEW DELHI. (APPELLANTS) (RESPONDENTS) PAN / GIR NO. MCPV-3320N APPELLANT BY: NONE RESPONDENT BY: SHRI SANJAY AWASTHI, SR. DR ORDER PER A. K. GARODIA, AM: 1. THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE POINTING OUT CERTAIN MISTAKE IN THE TRIBUNAL ORDER DATED 13. 09.2007. IT HAS BEEN SUBMITTED IN THE MISCELLANEOUS APPLICATION THAT AS PER THIS ORDER, THE TRIBUNAL HAS RESTORED BACK THE MATT ER TO THE FILE OF THE A.O. FOR A FRESH ASSESSMENT AFTER ISSUING NO TICE TO THE ASSESSEE U/S 143(2) BUT AS PER RECENT JUDGEMENT OF THE HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS HOTEL BLU E MOON IN CIVIL APPEAL NO.1198/10 ARISING OUT OF SLP(CIVIL) NO.22973/2007, IT WAS HELD THAT IF NO NOTICE U/S 14 3(2) WAS ISSUED BY THE A.O. IN THE COURSE OF FRAMING BLOCK A SSESSMENT U/S 158BC, SUCH ASSESSMENT IS NOT VALID. IT IS SUB MITTED THAT IN VIEW OF THIS JUDGEMENT OF HONBLE APEX COURT, THE T RIBUNAL ORDER IS CONTAINING MISTAKE, WHICH SHOULD BE RECTIF IED. M.A.NO.121/DEL/2010 IN I.T.A. NO. 268 /DEL/2003 2/3 2. WE HAVE GONE THROUGH THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND WE FIND THAT THERE IS BY NOW A SETTLED POSITION THAT IF THE TRIBUNAL ORDER IS NOT IN ACCORDANCE WITH THE JUDGMENT OF HONBLE APEX COURT EVEN IF SUCH JUDGEMENT OF HONBL E APEX COURT IS OF A LATER DATE, THERE IS A MISTAKE IN THE TRIBUNAL ORDER WHICH SHOULD BE RECTIFIED U/S 254(2). IN THE PRESE NT CASE ALSO, THE BLOCK ASSESSMENT WAS FRAMED BY THE A.O. U/S 158 BC WITHOUT COMPLYING WITH THE REQUIREMENT OF SECTION 1 43(2) AND UNDER THESE FACTS, IT WAS HELD BY THE TRIBUNAL AS P ER THE TRIBUNAL ORDER DATED 13.09.2007 THAT THE A.O. SHOULD FRAME D E NOVO ASSESSMENT AFTER ISSUING NOTICE TO THE ASSESSEE U/S 143(2) AND AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS PER THE SUBSEQUENT JUDGMENT OF THE HO NBLE APEX COURT RENDERED IN THE CASE OF CIT VS HOTEL BLUE MOO N (SUPRA), IT WAS HELD THAT IF NO NOTICE WAS ISSUED BY THE A.O . U/S 143(2) IN THE COURSE OF BLOCK ASSESSMENT, SUCH BLOCK ASSESSME NT IS NOT VALID. IN VIEW OF THIS JUDGEMENT OF HONBLE APEX C OURT, WE FIND THAT THE TRIBUNAL ORDER DATED 13.09.2007 SHOUL D BE RECALLED FOR A FRESH DECISION AFTER CONSIDERING THIS JUDGEME NT OF HONBLE APEX COURT. HENCE, WE RECALL THIS TRIBUNAL ORDER D ATED 13.09.2007 AND DIRECT THE REGISTRY TO FIX THE APPEA L FOR HEARING ON 16.08.2010 AND NOTICES SHOULD BE ISSUED TO BOTH THE PARTIES. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED. 4. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT ON T HE DATE OF HEARING I.E. 02.07.2010. SD./- SD./- (A. D. JAIN) (A K GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 02 ND JULY, 2010 SP. M.A.NO.121/DEL/2010 IN I.T.A. NO. 268 /DEL/2003 3/3 COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI