Joint Commissioner of Income-tax, Ichalkaranji Range, Ichalkaranji V. Nitinkumar Dhondiram Kasture, Kolhapur

MA 18/PUN/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8504 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-08-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 03-11-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VITTHAL BHOSALE
• Section: 143(3); 143(2); 254(2)

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM M.A. NO.18/PUN/2021 (ARISING OUT OF ITA NO.117/PUN/2019) / ASSESSMENT YEAR : 2011-12 JT.CIT, ICHALKARANJI RANGE, ICHALKARANJI. .. /APPLICANT / V/S. NITINKUMAR DHONDIRAM KASTURE, 11/247, STATION ROAD, ICHALKARANJI, TAL. : HATKANANGALE, DIST. KOLHAPUR 416115. PAN: ABWPK8353K .. / RESPONDENT REVENUE BY : SHRI VITTHAL BHOSALE ASSESSEE BY : NONE / DATE OF HEARING : 20.08.2021 / DATE OF PRONOUNCEMENT : 20.08.2021 / ORDER PER INTURI RAMA RAO, AM: THE REVENUE THROUGH THIS MISCELLANEOUS PETITION IS SEEKING RECALL OF AN ORDER DATED 25.09.2019 OF THIS TRIBUNAL IN ITA NO.117/PUN/2019 FOR THE ASSESSMENT YEAR 2011-12. 2. WHEN THE MATTER HAD COME UP FOR HEARING TODAY, NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE DUE SERVICE OF NOTICE. THEREFORE, WE DISPOSE OF THIS MA AFTER HEARING THE LD. CIT-DR. 2 MA NO.18/PUN/2021 3. THROUGH THIS MA, THE REVENUE IS SEEKING RECALL THE ORDER PASSED BY THIS TRIBUNAL (SUPRA) ON THE GROUND THAT THE TRIBUNAL HAD WRONGLY ASSUMED THE DATE OF ISSUE OF NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 (THE ACT) AS 07.05.2013 AS AGAINST THE CORRECT DATE OF ISSUE OF NOTICE I.E. 18.09.2012. THE LD. CIT-DR ALSO SUBMITTED THAT IN RESPONSE TO THE NOTICE DATED 18.09.2012 ISSUED U/S 143(2) OF THE ACT THAT THE ASSESSEE ALSO FILED A LETTER SEEKING ADJOURNMENT FROM HEARING, A COPY OF THE SAID LETTER IS ALSO PLACED BEFORE US. THUS, ACCORDING TO THE REVENUE, THE TRIBUNAL HAD CLEARLY FELL IN ERROR IN ALLOWING APPEAL OF THE ASSESSEE ON THE GROUND OF NOTICE ISSUED U/S 143(2) OF THE ACT IS BARRED BY LIMITATION AND, THEREFORE, IT IS PRAYED THAT THE ORDER PASSED BY THE TRIBUNAL (SUPRA) SHOULD BE RECALLED. 4. WE HEARD THE LD. CIT-DR AND PERUSED THE MATERIAL ON RECORD. ON PERUSAL OF THE ORDER PASSED BY THIS TRIBUNAL (SUPRA), WE FIND THAT THE TRIBUNAL WHILE ADJUDICATING THE ADDITIONAL GROUND OF APPEAL HAD ASSUMED THE DATE OF ISSUE OF NOTICE U/S 143(2) OF THE ACT AS 07.05.2013. FOR READY REFERENCE, THE SAID ADDITIONAL GROUND OF APPEAL IS EXTRACTED HEREUNDER :- ASSESSMENT ORDER PASSED BY THE JT.CIT U/S 143(3) ON 27/01/2014 IS WITHOUT JURISDICTION AND BAD IN LAW, AS THE NOTICE U/S 143(2) WAS NOT SERVED WITHIN STATUTORY TIME PERIOD IN TERMS OF PROVISO TO SEC 143(2) APPELLANT PRAY FOR CANCELLATION/ANNULMENT OF THE ASSESSMENT ORDER. 5. FROM THE READING OF ORDER PASSED BY THE TRIBUNAL (SUPRA), IT IS EVIDENT THAT THE CONCLUSION REACHED BY THE TRIBUNAL THAT THE NOTICE ISSUED U/S 143(2) OF THE ACT IS BARRED BY LIMITATION IS CONTRARY TO THE MATERIAL ON RECORD. THE MATERIAL ON RECORD CLEARLY INDICATES THAT THE FIRST NOTICE U/S 143(2) OF THE ACT WAS ISSUED O 18.09.2012 POSTING THE CASE FOR HEARING ON 28.09.2012. AFTER RECEIPT OF THE SAID NOTICE, THE AR OF THE ASSESSEE ALSO FILED A LETTER SEEKING ADJOURNMENT OF HEARING FIXED FOR 28.09.2012 VIDE HIS LETTER DATED 28.09.2012. THE REVENUE ALSO PLACED ON RECORD THE COPY OF THE ACKNOWLEDGEMENT OF 3 MA NO.18/PUN/2021 SERVICE OF NOTICE U/S 143(2) OF THE ACT SERVED ON 21.09.2012. THUS, THE MATERIAL ON RECORD CLEARLY INDICATES THAT THE NOTICE U/S 143(2) OF THE ACT WAS ISSUED WITHIN THE STIPULATED PERIOD. THUS, THE ORDER PASSED BY THIS TRIBUNAL (SUPRA) IS PREMISED ON WRONG ASSUMPTION OF FACTS WHICH IS CLEARLY CAPABLE FOR RECTIFICATION U/S 254(2) OF THE ACT AND, THEREFORE, THE ORDER PASSED BY THE TRIBUNAL (SUPRA) IS RECALLED FOR FRESH ADJUDICATION ON MERIT. ACCORDINGLY, THE REGISTRY IS DIRECTED TO FIX THE APPEAL IN DUE COURSE OF HEARING. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE STANDS ALLOWED. ORDER PRONOUNCED ON THIS 20 TH DAY OF AUGUST, 2021. SD/- SD/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 20 TH AUGUST, 2021. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-2, KOLHAPUR. 4. THE PR. CIT-1, KOLHAPUR. 5 . , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.