The ACIT., Circle-1(2), Baroda V. Shri Arun R. Choksi, Baroda

MA 158/AHD/2018

AI Insights

The case revolves around a Miscellaneous Application (M.A. No.158/Ahd/2018) filed by the Revenue against the order of the Income Tax Appellate Tribunal, Ahmedabad, which had previously decided on the validity of a notice under Section 143(2) of the Income Tax Act, 1961, in the case of Shri Arun R. Choksi for the block period from 1986-87 to 15.12.1995. The Revenue contended that the Tribunal had erred in not adjudicating the assessee's ground on merit and solely on the legal aspect of the notice's validity. The Tribunal, however, found that the notice under Section 143(2) was not physically present in the case files, despite being mentioned in the assessment order, and thus upheld its earlier decision without any apparent mistake.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129864 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-02-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-02-2023
• Assessment Year: misc
• Appeal Filed On: 28-05-2018
• Other Referred Cases: Parth Aluminum Ltd. in IT(SS) A. No. 376/Ahd/2022, Hotel Blue Moon, Devendranath G Chaturvedi, Chand Bihari Agrawal
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 143(2); 158BC; 13

Judgement Text

M.A. No.158/Ahd/2018 (In IT(SS)A No.144/Ahd/2005) Block Period A.Y.: 1986-87 to 15.12.1995 Page 1 of 5 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “D” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER M.A. No.158/Ahd/2018 (In IT(SS)A No.144/Ahd/2005) Block Period A.Y.: 1986-87 to 15.12.1995 Asstt. Commissioner of Income Tax vs. Shri Arun R. Choksi, Circle – 1(2), Baroda. Rangoli Bungalow, Harni Main Road, Baroda. [PAN – ABIPC 0952 C] (Appellant) (Respondent) Assessee by : Ms. Urvashi Shodhan, AR Revenue by : Shri Rakesh Jha, Sr. DR Date of hearing : 03.02.2023 Date of pronouncement : 10.02.2023 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER : This Miscellaneous Application is filed by the Revenue in respect of order dated 17.11.2017 passed by the Tribunal. 2. Ld. DR submitted that there is a mistake apparent on record as the Tribunal has not adjudicated assessee’s ground on merit and decided the issue on the legal aspect of validity of notice under Section 143(2) of the Income Tax Act, 1961. At the time of hearing, Ld. DR submitted the letter dated 08.08.2022 from the concerned Assessing Officer which clarifies the position of the notice issued under Section 143(2) of the Act. The letter dated 08.l08.2022 is reproduced hereunder :- “No.VDR/ACIT/Circle-1(1)/ARC/Reply/2022-23 Date: 08.08.2022 To. The Additional Commissioner of Income-Tax Sr. D.R., ITAT-D Bench Ahmedabad. M.A. No.158/Ahd/2018 (In IT(SS)A No.144/Ahd/2005) Block Period A.Y.: 1986-87 to 15.12.1995 Page 2 of 5 Respected Sir, Sub: M.A. in the case of Shri Arun R. Chokshi (PAN: ABIPC0952C) Block period - M.A. No.158/Ahd/2018n - furnishing of copy of notice u/s. !43(2) in the case - report reg.- Ref: Your letter No. Addl. CIT/ITAT-4(1)/ARC/'D' Bench/2022-23 dated 14.06.2022. ---------------------------- Kindly refer to the above. 2. In this regard it is to state that the case of Shri Arun R. chokshi for the block period was previously assessed with Central Circle 2(2), Vadodara. Then the PAN migrated to many more ward and circle and in restructuring of the department, the jurisdiction over the PAN was given to the office of the undersigned on 14.10.2020. In this case the block period assessment was passed on 24.12.1996 by CC2, Vadodara and so the matter is very old. This office has obtained case records from the office of DR, ITAT, Ahmedabad. After examining the case records, the fact of case regarding issuing of notice u/s 143(2) of the Income Tax Act is mentioned in following paras. 3. On perusal of case records, it is transpired that the AO has mentioned in his assessment order regarding issuing of notice u/s.143(2) of the IT Act and the same is mentioned in para 3 of assessment order dated 24.12.1996.Thus, it is clear that the notice u/s.143(2) of the Act has been issued to the assessee. However, on perusal of records, no such physical notice is found in case files. Further, the AO in his assessment records, has also mentioned regarding order sheet including various hearing dates and the same is also not available in case records. 3.1 Without prejudice to the above, regarding the query that "how the co- ordinate bench decision in the case of Parth Aluminum Ltd. in IT(SS) A. No. 376/Ahd/2022 on 29.12.2011 and M.A. No.79/Ahd/2012 dated 27.11.2012 is applicable to our case." It is to state that in the case of Parth Aluminum as per M.A. Order dated 27.11.2012 vide para 17 to 20, it is stated and construed that if the assessee has failed to furnish return of income within 45 days from the date of issue of notice u/s. 158BC, the assessing office is not bound to issue notice u/s. 143(2) of the Act. In the case of Shri Arun R. Chokshi for the block period, the facts are same. The assessing officer had issued notice u/s. 158BC of the I.T. Act on 19.03.1996 and the assessee had furnished his return of income on 26.09.1996 which is beyond 45 days. Thus, it is evident that the assessee has not filed their respective return within the stipulated time. Therefore, the A.O. was not. in bound to issue notice u/s 143(2) of the I.T. Act 1961. Looking to the above scenario, the revenue has filed M.A. before the Hon'ble ITAT in the case of Arun R. chokshi for the block period to recall its order and adjudicate the matter on merit following decision in the M.A order of Parth Aluminum mentioned supra. M.A. No.158/Ahd/2018 (In IT(SS)A No.144/Ahd/2005) Block Period A.Y.: 1986-87 to 15.12.1995 Page 3 of 5 4. Looking to the factual position mentioned above, it is requested that the issue may be decided on merits. Sd/- (Batti Lal Meena) Assistant Commissioner of Income Tax, Circle-1(1)(1). Vadodara.” 3. The Ld. AR submitted that there is no mistake apparent on record and the Tribunal has decided the issue rightly on the legal point. The Ld. AR filed following submissions :- “It is hereby respectfully submitted that: (i) Department neither submits notice u/s 143(2) of the Act (if issued) nor states that Hon'ble Bench has given a fallacious finding by following the Apex court judgment in case of Hotel Blue Moon in their MA. (ii) ACIT in Para 3 of the report notes that AO mentions in Para 3 of block assessment order dated 24.12.1996 regarding issuing of notice u/s.143 (2) of the Act. Below is reproduction of Para 3 of the order: “3. In accordance with the provisions of Chapter IX-B, notice u/s 158BC dated 19.03.1996 was issued and served on the assessee. The case was represented by Mr. Mayur Shah, C.A., who attended on behalf of the assessee in response to the notices u/s 143 (2) and 142 (1). " It is respectfully submitted that this is a general observation of AO and nothing specific is mentioned whether notice was issued or not. But the fact remains that department failed to produce notice u/s 143 (2) of the Act either at the time of hearing of the appeal or even during hearing of MA further admitting that no physical notice is found in case files. (iii) So far as contention raised that Hon'ble Bench ignored Co-ordinate Bench decision in case of Parth Aluminum Ltd. It is respectfully submitted that - a) The decision was not placed before the Hon'ble Bench at the time of hearing and to pray for recall of the order to consider the same now will tantamount to review of the order which is not permissible. There is no mistake apparent on record. b) In any case the facts of both the cases are different and not identical as claimed by ACIT in his report. In case of Parth Aluminum Ltd. return filed belatedly was treated as non est by Id. CIT (A) and following the decision of Patna Bench it was held that M.A. No.158/Ahd/2018 (In IT(SS)A No.144/Ahd/2005) Block Period A.Y.: 1986-87 to 15.12.1995 Page 4 of 5 in case of invalid return it was not mandatory to issue notice u/s 143 (2) of the Act. [page 27] c) Hon'ble jurisdictional High Court in case of Devendranath G Chaturvedi [page 1 to 4 of compilation has held as under: "........ Whether where assessee, in response to notice issued under section 158BC, filed a return after long delay, however, said return was not discarded as invalid, in such a case, if Assessing Officer wanted to frame assessment at higher income, he was bound to issue a notice under section 143 (2) - Held, Yes.." d) Revenue vide question [B] raised before Hon'ble High Court [page 31] relied upon decision of Patna Bench in case of Chand Bihari Agrawal as relied upon in Parth Aluminum by Co-ordinate Bench [pg 27] that is dealt with by Hon'ble High Court in Devendranath G Chaturvedi. e) Attention is drawn to Return of Income [page 11 - 12] and Assessment order [page 13 - 15] Id. AO has computed income starting at returned figure of Rs. 23,01,700/- assessing income at Rs. 2,98,23,3151- Conclusion: 1. Department MA deserves to be dismissed since it is nothing but review of the order of Hon'ble IT AT following judgment of the Apex Court in case of Hotel Blue Moon [321 ITR 362] since no notice is issued u/s 143(2) of the Act. 2. Contention raised about non consideration of decision of Co- ordinate Bench which was never cited before Hon'ble bench during the hearing is not permissible since it will tantamount to review of order. In any case jurisdictional High Court after considering decision of Co-ordinate Bench has held in favour of the assessee.” 4. We have heard both the parties and perused all the material available on record. From the perusal of the letter dated 08.08.2002, it appears that the Tribunal has taken cognisant view related to validity of notice under Section 143(2) of the Act and in fact reiterated through this letter that no such physical notice was found in the case file. Thus, there is no mistake apparent on record. Hence, Miscellaneous Application filed by the Revenue is dismissed. M.A. No.158/Ahd/2018 (In IT(SS)A No.144/Ahd/2005) Block Period A.Y.: 1986-87 to 15.12.1995 Page 5 of 5 5 In the result, Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open Court on this 10 th day of February, 2023. Sd/- Sd/- (WASEEM AHMED) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 10 th day of February, 2023 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad