Devi Saran Agarwal, Kanpur V. Income Tax Officer-3(1), Kanpur

MA 19/LKW/2013

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2708 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 10-11-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 18-09-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C P SINGH
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.19/LKW/2013 [ARISING OUT OF ITA NO.316/LKW/2011] ASSESSMENT YEARS:2002-03 DEVI SARAN AGARWAL 54/1, NAYAGANJ KANPUR V. INCOME TAX OFFICER 3(1) KANPUR PAN:ABNPA5170F (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. C. P. SINGH, D.R. DATE OF HEARING: 10 11 2014 DATE OF PRONOUNCEMENT: 16 01 2015 O R D E R PER SUNIL KUMAR YADAV: THROUGH THIS MISCELLANEOUS APPLICATION FILED UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') AGAINST THE ORDER OF THE TRIBUNAL DATED 7.8.2013 IN I.T.A. NO. 316/LKW/2011, THE ASSESSEE HAS SOUGHT RECTIFICATION IN THE ORDER OF THE TRIBUNAL ON TWO COUNTS. 2. THE FIRST GRIEVANCE OF THE ASSESSEE IS THAT THE TRIBUNAL HAS INADVERTENTLY MENTIONED THE NAME OF THE ASSESSEE AS DEVI SINGH AGARWAL IN PLACE OF DEVI SARAN AGARWAL. THEREFORE, THE NAME OF THE ASSESSEE MAY KINDLY BE CORRECTED. 3. ON PERUSAL OF THE ORDER OF THE TRIBUNAL VIS--VIS THE FORM 36, WE FIND THAT THE TRIBUNAL HAS INADVERTENTLY MENTIONED THE NAME OF THE ASSESSEE AS DEVI SINGH AGARWAL IN PLACE OF DEVI SARAN AGARWAL. WE, :- 2 -: THEREFORE, RECTIFY THE SAME AND THE NAME OF THE ASSESSEE BE READ AS DEVI SARAN AGARWAL IN THE ORDER OF THE TRIBUNAL DATED 7.8.2013. 4. THE SECOND GRIEVANCE OF THE ASSESSEE WAS THAT THE TRIBUNAL HAS GIVEN A FINDING THAT NOTICE UNDER SECTION 148 OF THE ACT CAN ISSUED EVEN THOUGH TIME WAS AVAILABLE FOR ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT, FOLLOWING THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT; WHEREAS THE CONTENTION OF THE ASSESSEE WAS THAT AFTER ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT AND DURING THE PENDENCY OF THE PROCEEDINGS UNDER SECTION 143(3) OF THE ACT, NOTICE UNDER SECTION 148 OF THE ACT CANNOT BE ISSUED. THE CONTENTION OF THE ASSESSEE THAT THE ISSUE OF VALIDITY OF ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT DURING PENDENCY OF ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE ACT, REMAINED UN- ADJUDICATED AND THE TRIBUNAL HAS GIVEN A FINDING ON A DIFFERENT ISSUE THAT NOTICE UNDER SECTION 148 OF THE ACT CAN BE ISSUED EVEN THOUGH TIME WAS AVAILABLE FOR ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. THEREFORE, THE ORDER OF THE TRIBUNAL MAY BE RECALLED AND THE FINDING MAY BE GIVEN ON THE ISSUE WHETHER NOTICE UNDER SECTION 148 OF THE ACT CAN BE ISSUED DURING THE PENDENCY OF PROCEEDINGS UNDER SECTION 143(3) OF THE ACT AFTER ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. 5. THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT THE ISSUE BEFORE THE LD. CIT(A) WAS THAT NOTICE UNDER SECTION 148 OF THE ACT CANNOT BE ISSUED WHERE THERE IS A TIME TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT AND DURING THE COURSE OF HEARING OF THE APPEAL, THE ASSESSEE HAS RAISED HIS ARGUMENT ON THIS ASPECT AND THE TRIBUNAL HAS RIGHTLY ADJUDICATED THE ISSUE, FOLLOWING THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT. THERE WAS NO ISSUE IN DISPUTE THAT NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED DURING THE PENDENCY OF PROCEEDINGS UNDER SECTION 143(3) OF THE ACT. MOREOVER, THESE FACTS ARE NOT EVEN BORNE OUT FROM ANY ORDER OF THE LOWER AUTHORITIES. THEREFORE, THE CONTENTION OF THE ASSESSEE CANNOT BE :- 3 -: ENTERTAINED, AS IT WAS NEVER AN ISSUE IN DISPUTE DURING THE COURSE OF HEARING OF THE APPEAL. 6. HAVING HEARD THE ARGUMENTS ADVANCED BY THE PARTIES AND FROM A CAREFUL PERUSAL OF THE ORDER OF THE TRIBUNAL DATED 7.8.2013 VIS--VIS THE MISCELLANEOUS APPLICATION AND THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT BEFORE THE LD. CIT(A), THE ASSESSEE HAS RAISED A DISPUTE THAT NOTICE UNDER SECTION 148 OF THE ACT CANNOT BE ISSUED IF THERE IS TIME TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT. WE DO NOT FIND ANYWHERE IN THE ORDER OF THE LD. CIT(A) THAT THE ASSESSEE HAS EVER RAISED ANY GROUND OR ARGUMENT THAT NOTICE UNDER SECTION 148 WAS ISSUED AFTER ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT AND DURING PENDENCY OF THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE ACT. THE ALLEGED FACT THAT NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED DURING THE PENDENCY OF THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE ACT ARE NOT EVEN BORNE OUT FROM ANY OF THE ORDER OF THE LOWER AUTHORITIES. MOREOVER, NO SPECIFIC GROUND WAS RAISED BY THE ASSESSEE WITH REGARD TO THE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT DURING THE PENDENCY OF THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE ACT. IN THE ABSENCE OF ANY SPECIFIC FINDING IN THIS REGARD AND ANY OTHER MATERIAL, THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT HE HAS RAISED ANY ARGUMENT DURING THE COURSE OF HEARING OF THE APPEAL THAT NOTICE UNDER SECTION 148 OF THE ACT CANNOT BE ISSUED DURING THE PENDENCY OF THE PROCEEDINGS UNDER SECTION 143(3) OF THE ACT AFTER ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT, CANNOT BE ACCEPTED AND THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE CANNOT BE ENTERTAINED AT THIS STAGE. MOREOVER, FROM THE PERUSAL OF THE ORDER OF THE TRIBUNAL AND THE LD. CIT(A), WE FIND THAT EVEN BEFORE THE LD. CIT(A), THE ASSESSEE HAS RAISED A DISPUTE THAT NOTICE UNDER SECTION 148 OF THE ACT CANNOT BE ISSUED IF THERE IS TIME TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT AND THIS ASPECT WAS EXAMINED BY THE TRIBUNAL AND FOLLOWING THE :- 4 -: JUDGMENT OF THE JURISDICTIONAL HIGH COURT, THE TRIBUNAL HELD THAT NOTICE UNDER SECTION 148 OF THE ACT CAN BE ISSUED EVEN IF TIME IS AVAILABLE FOR ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. 7. IN THE LIGHT OF THESE FACTS, WE FIND NO ERROR IN THE ORDER OF THE TRIBUNAL DATED 7.8.2013. WE ACCORDINGLY PARTLY ALLOW THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. 8. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16 TH JANUARY, 2015 JJ:0801 COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR