ITO, (International Taxation)-1, Hyderabad V. Panduranga Chary Achi, Secunderabad

MA 137/Hyd/2022

AI Insights

The case revolves around a Miscellaneous Application (M.A. No.137/Hyd/2022) filed by the Revenue against the order of the Income Tax Appellate Tribunal, Hyderabad, dated 04.03.2022. The Revenue sought to recall the Tribunal's order under section 254(2) of the Income Tax Act, arguing that the initial notice under section 148 was issued by the incorrect Assessing Officer and that both Assessing Officers had concurrent jurisdiction. The respondent, Panduranga Chary Achi, contested this, supported by a Supreme Court decision that issues of factual or legal error should be addressed through appeals, not rectification applications. The Tribunal upheld the original decision, rejecting the Revenue's arguments and emphasizing the importance of procedural correctness in issuing notices.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122339 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-01-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 19-01-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 28-09-2022
• Other Referred Cases: CIT Vs. Reliance Telecom Ltd, CIT Vs. Laxman Das Khandelwal
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V. SAI SUDHA
• Section: 147; 148; 292BB; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ SMC ‘ Bench, Hyderabad BEFORE SHRI LALIET KUMAR, JUDICIAL MEMBER M.A. No.137/Hyd/2022 in ITA No.14/Hyd/2022 Assessment Year: 2012-13 The Income Tax Officer, International Taxation-1, Hyderabad. Vs. Panduranga Chary Achi, Secunderabad. PAN : AFFPA9135G. (Appellant / Petitioner) (Respondent / Assessee) Assessee by: Ms. V. Sai Sudha Revenue by: Ms. Reema Yadav. Date of hearing: 20.01.2023 Date of pronouncement: 20.01.2023 O R D E R PER LALIET KUMAR, J.M. This Miscellaneous Application is filed by the Revenue feeling aggrieved by the order passed by the Tribunal on 04.03.2022 in ITA No.14/Hyd/2022 seeking to recall of the said order u/s 254(2) of the Act. 2. It is the contention of the ld. DR for the Revenue that the order passed by the Tribunal is required to be recalled and the matter is required to be heard on merits. The primary contentions of the ld. DR are as follows : 2 MA 137/Hyd/2022 i. That the notice u/s 148 of the Act dt.27.03.2019 was issued initially by the ITO, (I.T-2) after recording the reasons for reopening. Thereafter, during the course of assessment proceedings, the PAN Number of the assessee was ascertained and the case was transferred to the jurisdictional ITO i.e., ITO, (I.T-1). ii. That both the Assessing Officers are having the concurrent jurisdiction and therefore, there was no requirement of issuing fresh notice u/s 148 of the Act by the jurisdictional Assessing Officer. iii. The Division Bench in the case of ITA 689/Hyd/2015 had decided the identical issue raised by the assessee challenging the non-issuance of fresh notice u/s 148 of the Act against the assessee. Hence, non-consideration of the order of Division Bench passed be the Tribunal is an error on the face of the record and hence, the order is required to be recalled. 3. Per contra, the ld. AR relied on the decision of hon’ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd (2021) 133 taxmann.com 41 (SC) wherein the Hon’ble Supreme Court has held that all the issues pertaining to factual / legal error are 3 MA 137/Hyd/2022 required to be agitated only by way of filing of appeal before the higher forum and cannot be the subject matter of rectification. 4. We have heard the rival submissions and perused the material on record. Firstly, from the reading of sections 147 and 148 of the Act, it is abundantly clear that the jurisdictional notice u/s 148 of the Act is required to be issued by the Assessing Officer of the assessee. In the present case, the jurisdictional notice was not issued by the Assessing Officer of the assessee namely, ITO, IT-2. Secondly, the contention raised by the ld. DR that both the Assessing Officers’ were having concurrent jurisdiction, therefore, it makes no difference whether section 148 notice was issued by the ITO, IT-2 or by ITO, IT-1. In my view, this submission is contrary to the conduct of Revenue, assuming both the Assessing Officers are having concurrent jurisdiction, then there was no requirement in law to transfer the case from ITO, IT-2 to ITO, IT-1. Further, the ld.CIT(A) in Para 8.12 of his order has sought to cover this jurisdictional issue by invoking the provision of section 292B of the Act. In my view, the same is not permissible in view of the decision of the Hon'ble Supreme Court in the case of CIT Vs. Laxman Das Khandelwal reported in [2019] 108 taxmann.com 183 (SC), wherein the Hon'ble Supreme Court had held that “ 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the 4 MA 137/Hyd/2022 assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself.” 5. In the present case no notice was issued by the jurisdictional Assessing Officer u/s 148 of the Act. Therefore, the Revenue cannot take the help of section 292B or section 292BB of the Act. Further, the Revenue cannot set up a new case in the Miscellaneous Application as it was not the case of the Revenue before the Tribunal or before the ld.CIT(A) that both the Assessing Officers were having the concurrent jurisdiction, even no such document had been placed on record before the Bench at the time of hearing. Besides, the above the reliance on the decision of the Division Bench in the case of ITA No. 689/Hyd/2015 is also pre- posture as the same was not brought to the notice of the Tribunal at the time of hearing. 6. In view of the above, I do not find any merit in the M.A. filed by the Revenue and the same is required to be dismissed. Besides the above, I am also of the view that the law had been fairly settled by the decision of Hon’ble Supreme Court in the case of Reliance Telecom Ltd (supra), I find that the Hon’ble Supreme Court had laid down its broad principle under which circumstances, the M.A. of assessee / Revenue can be recalled. I do not find that the present case falls in any of the conditions provided by the Hon’ble Supreme Court. Considering the totality 5 MA 137/Hyd/2022 of the facts and circumstances and also in view of the decisions of Hon’ble Supreme Court cited supra, I do not find any merit in the M.A. filed by the Revenue. Accordingly, the M.A. is dismissed. 7. In the result, the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the Open Court on 20 th January, 2023. Sd/- - (LALIET KUMAR) JUDICIAL MEMBER Hyderabad, dated 20 th January, 2023. TYNM/sps Copy to: S.No Addresses 1 Panduranga Chary Achi, C/o. Gandhi & Gandhi, Chartered Accountants, 1002, Paigah Plaza, Basheerbagh, Hyderabad – 5000 063. 2 The Income Tax Officer, International Taxation – 1, Basheerbagh, Hyderabad. 3 Commissioner of Income Tax (Appeals) – 10, Hyderabad. 4 The CIT (IT & TP), Hyderabad. 5 DR, ITAT Hyderabad Benches 6 Guard File By Order