The DCIT, Circle-5, Baroda V. Shri Vasantlal Ramanlal Shah, Baroda

MA 138/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7912 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 27-04-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 25-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBE R M.A. NO.138/AHD/2011(BY DEPARTMENT) (ARISING OUT OF I.T.A. NO.2760/AHD/2010) (A.Y. 2007-08 DCIT, CIRCLE-5 BARODA APPELLANT VS. SHRI VASANTLAL RAMANLAL SHAH PROP: PADRAWALA CONSTRUCTION, 1 ST FLOOR, ARADHANA CINEMA, TILAK ROAD, BARODA PAN - AHFPS0929L RESPONDENT APPELLANT BY :SHRI B.L. YADAV, SR. D.R. RESPONDENT BY :SHRI M.J. SHAH, A.R. ---------------- DATE OF HEARING : 27.04.2012 DATE OF PRONOUNCEMENT : 04.05.2012 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER THIS M.A. HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 19.05.2011 PASSED BY THE ITAT IN ITA NO.2760/AHD/2010 ON THE FOLLOWING GROUNDS:- (I) WHEREBY WHILE ADJUDICATING UPON APPEAL NO. ITA NO.2760/AHD/2010 IN THE CASE OF SHRI VASANTLAL RAMA NLAL SHAH, BARODA FOR THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-08, AN ER ROR HAS CREPT IN HOLDING THE DECISION THAT THE ENTIRE ASSESSMENT IS BAD IN LAW BECAUSE 143(2) NOTICE WAS SERVED FAR BEYOND THE PERIOD OF L IMITATION OF 12 MONTHS PERMITTED FOR SERVICE OF THE SAID NOTICE; RETURN HA VING BEEN FILED ON 27.07.2007 AND 143(2) NOTICE IS DATED 19.09.2008 AN D HAS BEEN SERVED ON 07.10.2008; WHEREAS LIMITATION EXPIRES ON 31.07.200 8. M.A. NO.138/AHD/2011 A.Y. 2007-08 ARISING OUT OF ITA NO.2760/AHD/2010 2 (II)THE HONBLE ITAT HAS ERRED IN NOT APPRECIATING THE FACT THAT AS PER SECTION 143(2) AS AMENDED WITH EFFECT FROM 0 1.04.2008, NO NOTICE U/S 143(2) SHALL BE SERVED ON THE ASSESSEE AFTER EX PIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN I S FURNISHED. IN THIS CASE, AS PER DISPATCH REGISTER (SPEED POST) THE NOTICE U/ S 143(2) WAS SENT BY SPEED POST TO THE ASSESSEE ON 22.09.2008. THUS IN THIS CASE THE NOTICE U/S 143(2) HAS BEEN SERVED WITHIN 30.09.2008 AS PER PRO VISIONS OF SECTION 143(2) AS IT STANDS W.E.F. 01.04.2008. THUS THE NO TICE U/S 143(2) HAS BEEN SERVED WITHIN THE PRESCRIBED TIME LIMIT. (III) AS PER SECTION 292BB, WHICH WAS INSERTED WI TH EFFECT FROM 01.04.2008, WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR CO- OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT O R REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF TH IS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVE D UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PRECEDIN G OR INQUIRY UNDER THIS ACT AND THAT THE NOTICE WAS- (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER; PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPL ETION OF SUCH ASSESSMENT OR REASSESSMENT. IN THIS CASE, THE ASSESSEE HAS NOT TAKEN THIS GRO UND BEFORE THE A.O. OR BEFORE THE LD. CIT(A) AND, THEREFORE, THE A SSESSEE WAS PRECLUDED FROM TAKING ANY OBJECTION BEFORE THE HONBLE ITAT. (IV) AS PER PARA 2 & 3 ABOVE, A MISTAKE APPARENT FROM RECORD IS CREPT IN THE ORDER OF THE HONBLE ITAT IN HOLDING T HAT THE ASSESSMENT WAS BAD IN LAW DUE TO NON SERVICE OF NOTICE U/S 143(2) WITHIN THE PRESCRIBED TIME. IT IS THEREFORE, PRAYED THAT THE HONBLE ITA T MAY PASS A RECTIFICATION ORDER TO THAT EFFECT AS IT MAY DEEM FIT. 2. AT THE TIME OF HEARING LD. D.R. RELIED ON THE C ONTENTS OF THIS M.A. AND SUBMITTED THAT ORDER OF THE TRIBUNAL MAY K INDLY BE RECALLED OR RECTIFIED ACCORDINGLY. LD. COUNSEL OF THE ASSESSEE , ON THE OTHER HAND, SUBMITTED THAT BOTH THE GROUNDS TAKEN BY REVENUE FO R RECALLING/RECTIFYING THE ORDER DATED 19.06.2010 ARE ON THE BASIS OF AMEN DMENTS MADE IN THE INCOME TAX ACT WITH EFFECT FROM 01.04.2008 AND ARE NOT APPLICABLE FOR THE A.Y. 2007-08 AND THEREFORE, THE M.A. BY THE REVENUE IS DEVOID OF ANY MERIT AND THEREFORE, THE SAME DESERVES TO BE DISMISSED. M.A. NO.138/AHD/2011 A.Y. 2007-08 ARISING OUT OF ITA NO.2760/AHD/2010 3 3. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD WE FIND FORCE IN THE CONTENTION OF LEARNED COUNSEL FOR THE ASSESSEE THAT THE AMENDMENTS MADE IN THE INCOME TAX ACT ON THE BASIS OF WHICH REVENUE HAS FILED THIS M.A. FOR RECALLING/RECTIFYING OUR OR DER DATED 19.05.2011 PASSED BY THE ITAT IN ITA NO.2760/AHD/2010 IS WITH EFFECT FROM 01.04.2008 AND THEREFORE NOT APPLICABLE FOR THE A.Y . 2007-08 WHICH IS THE YEAR UNDER CONSIDERATION IN THIS M.A. AND THEREFORE , WE FEEL NO HESITATION IN DISMISSING THIS M.A. FILED BY REVENUE AND THE SAME IS HEREBY DISMISSED. 4. IN THE RESULT, REVENUES M.A. IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 04 /05/2012 SD/- SD/- (A.K. GARODIA) ( D.K. TYAGI) ACCOUNTANT MEMBER JU DICIAL MEMBER TRUE COPY N.K. CHAUDHARY, SR. P.S. - 04 /05/2012 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. !' / CONCERNED CIT 4. !' - / CIT (A) 5. #$% , & , / DR, ITAT, AHMEDABAD 6. %'( )* / GUARD FILE. BY ORDER/ , + / , & ,