ITO, Ward- 5, Rourkela V. M/s. Tulu Enterprises, Rourkela

MA 16/CTK/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0822 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 13-10-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 14-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BINOD KUMAR AGARWAL
• Section: 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER ITO, Ward-5, Rourkela (Appellant Per Bench This is an 14.2.2020 of the 2010-2011. 2. Shri S.C.Mohanty, ld SR DR appeared for the revenue and Shri Binod Kumar Agarwal, ld AR appeared for the assessee. 3. It was submitted by ld Sr DR that the assessment has been quashed on the ground that the notice u/s.143(2) has not been serve time. It was the second submission by ld Sr DR that the IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER M.A.No.16/CTK/2020 (in ITA No.372/CTK/2019) Assessment Year : 2010-2011 5, Rourkela Vs. M/s. Tulu Enterprises, Ganju Market, Fertilizer Township, Rourkela PAN/GIR No. (Appellant) .. ( Respondent Assessee by : Shri Binod Kumar Agarwal Revenue by : Shri S.C.Mohanty, Date of Hearing : 14/10 Date of Pronouncement : 14/10 O R D E R This is an M.A. filed by the revenue against the of the Tribunal in ITA No.372/CTK/2019 for the assessment year Shri S.C.Mohanty, ld SR DR appeared for the revenue and Shri Binod Kumar Agarwal, ld AR appeared for the assessee. It was submitted by ld Sr DR that the assessment has been quashed on the ground that the notice u/s.143(2) has not been serve was the second submission by ld Sr DR that the Page1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER 9) 2011 M/s. Tulu Enterprises, Ganju Market, Fertilizer Township, PAN/GIR No.AABFT 2528 B Respondent) Binod Kumar Agarwal, AR S.C.Mohanty, SR. DR 10/2022 10/2022 against the order dated for the assessment year Shri S.C.Mohanty, ld SR DR appeared for the revenue and Shri Binod It was submitted by ld Sr DR that the assessment has been quashed on the ground that the notice u/s.143(2) has not been served within the was the second submission by ld Sr DR that the challenge to the M.A.No.16/CTK/2020 (in ITA No.372/CTK/2019) Assessment Year : 2010-2011 Page2 | 4 service of notice u/s.143(2) was not in the grounds of appeal filed by the assessee. Ld Sr DR placed before us in Annexure-1 the copy of the notice u/s.143(2) dated 27.9.2011 which contains the signature of a person allegedly on 28.9.2011. It must be mentioned here that as the Xerox copy of the notice u/s. 143(2) alleged to have been served on the assessee, which contains the signature of receipt showed interpolation in respect of the month, therefore, the original notice was called for. A perusal of the original notice clearly showed the interpolation insofar as date 28.10.2011 has been changed to 28.9.2011. A plain perusal of the said interpolation also shows that the interpolation 09 in place of 10 is in another ink. It is an admitted fact that it is human nature to make mistakes in respect of month, or year or even date. But it is not human nature to make the mistake as forward date i.e. for the month of September i.e. 09, it is improbable a person would write October i.e. 10. Ld Sr DR also placed before us the copy of the dispatch register for the period 28.1.2011 to 28.3.2012 in respect of item Nos.352 to 377 for the date 27.9.2011 to 28.9.2011. The notice u/s.143(2) for the assessment year 2010-2011 has been shown in the dispatch register as Item No.361 and the same is shown to have been received by a person on 28.9.2011. The dispatch register signature is said to be that of an agent of the postal department. The dispatch register does not contain the seal of the postal department. It is written on the top of the page that the notice has been sent through EMS Speed Post. The M.A.No.16/CTK/2020 (in ITA No.372/CTK/2019) Assessment Year : 2010-2011 Page3 | 4 acknowledgement slip or the acknowledgement No. EMS speed post is also not available. The next query that comes to mind is that if the notice had been sent on 27.9.2011 in an envelope to be dispatched on 28.9.2011 through EMS speed post, how was the signature received on the said notice by service of the notice on 28.9.2011. Nothing has been produced to show that fresh notice has also been issued. Further, it must be mentioned here that it has been categorically alleged by the assessee that the notice u/s.143(2) has been served on the assessee on 28.10.2011. This being so, we find no error in the order of the Tribunal, which calls for any rectification u/s.254(2) of the Act. In regard to second issue that there was no ground in the grounds of appeal filed. A perusal of the written submission filed by the assessee on 14.2.2020 clearly raises the issue and being a legal issue, which goes to the root of the assessment, the assessee is very well entitled to raise the ground. In these circumstances, as the Revenue has not been able to substantiate any error in the order of the Tribunal dated 14.2.2020, the M.A. filed by the revenue stands dismissed. 4. In the result, M.A filed by the revenue is dismissed. Order dictated and pronounced in the open court on 14/10/2022. Sd/- sd/- (Arun Khodpia) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 14/10/2022 B.K.Parida, SPS (OS) M.A.No.16/CTK/2020 (in ITA No.372/CTK/2019) Assessment Year : 2010-2011 Page4 | 4 Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The revenue : ITO, Ward-5, Rourkela 2. The assessee: M/s. Tulu Enterprises, Ganju Market, Fertilizer Township, Rourkela 3. The CIT(A)-, Sambalpur 4. Pr.CIT-, Sambalpur 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//