ITO 19(2)(2), MUMBAI V. TARUNA KATARIA, MUMBAI

MA 225/MUM/2021

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The case revolves around a miscellaneous application filed by the Income Tax Department seeking recall of a Tribunal order that had allowed the appeal of the assessee, Smt. Taruna Kataria, on the grounds that the reopening of assessment was bad in law due to a defective notice under section 148 of the Income Tax Act. The Tribunal's earlier decision was based on the satisfaction recorded by the CIT, whereas the law required satisfaction from the JCIT for notices issued after four years of the assessment year. The Department later provided evidence that the satisfaction was actually recorded by the Addl. CIT, correcting the earlier oversight. Consequently, the Tribunal recalled its previous order and restored the appeal for re-examination.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133778 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-01-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 22-12-2022
• Assessment Year: 2005-2006
• Appeal Filed On: 04-10-2021
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 148; 254(2)

Judgement Text

आयकर अपीलीय अिधकरण मुंबई पीठ “ई” 炈ी िवकास अव瀡थी, 瀈याियक सद瀡य एवं 炈ी ओम 灹काश कांत, लेखाकार सद瀡य के सम楹 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “E”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER िव.आ.सं.225/मुं/ 2021 (िन.व. 2005-06) MA NO.225/MUM/2021 (A.Y.2005-06) (Arising out of ITA No. 584/Mum/2013) The Income Tax Officer - 19)2)(3( Room No. 307, 3rd Floor Piramal Chambers, Lalbaug, Mumbai 400012 ...... अपीलाथ牸/Applicant बनाम Vs. Smt. Taruna Kataria 404, Blue Heaven, Nehru Road Santacruz (East) Mumbai 400028 PAN:ACGPK7391G ..... 灹ितवादी/Respondent अपीलाथ牸 獧ारा/ Applicant by : Shri Tejinder Pal Singh Anand 灹ितवादी 獧ारा/Respondent by : None सुनवाई क琉 ितिथ/ Date of hearing : 23.12.2022 घोषणा क琉 ितिथ/ Date of pronouncement : 31.01.2023 आदेश आदेशआदेश आदेश/ORDER PER VIKAS AWASTHY, JM: This Miscellaneous Application u/s. 254(2) of the Income Tax Act, 1961 [in short ‘the Act’], is filed by the Department seeking recall of the Tribunal order dated 05.09.2019. 2 MA NO. 225/MUM/2021(A.Y.2005-06) 2. Notice of hearing of the Miscellaneous Application (MA) was sent to the assessee through RPAD. Notice was duly served for the hearing fixed on 06-05- 2022. The assessee, vide letter dated 05.05.2022 sought adjournment. At the written request of assessee/respondent the MA was adjourned to 27.05.2022. The Bench did not function on the said date. Hence, the MA was adjourned to 03.06.2022. The notice of hearing for 03.06.2022 was sent to assessee/respondent through RPAD. None appeared on behalf of the assessee on the said date. The MA was adjourned to 08.07.2022 at the request of the leaned Departmental Representative (ld. DR). On 08.07.2022 the MA was adjourned to 26.08.2022 and thereafter to 30.09.2022 and to 07.10.2022 and 28.10.22. Fresh notice was issued to the assessee through the office of DR for 28.10.2022. On 28.10.2022 Shri Bhavesh Shah represented the assessee. On the said date at the request of DR the MA was adjourned to 23-12-2022. It was also made clear by the Bench that no further adjournment shall be granted to the Department. On 23.12.2022 none appeared to represent the assessee. It seems that the assessee is not keen to pursue the MA. Hence, the MA is taken up for hearing with the assistance of the ld. DR and material available on record. 3. Shri Tejinder Pal Singh Anand representing the Department submitted that the Tribunal allowed the appeal of assessee vide order dated 05.09.2020 on the ground that reopening is bad in law as the notice issued u/s. 148 of the Act dated 25.03.2011 is defective. The contention of the assessee/ appellant was that the notice has been issued on the basis of satisfaction recorded by Commissioner of Income Tax (CIT), whereas, as per the provisions of Section 151(2) of the Act notice should have been issued after approval from the Joint Commissioner of Income Act (JCIT). The ld. DR submits that as per provisions of 3 MA NO. 225/MUM/2021(A.Y.2005-06) Section 151(2) of the Act as they were applicable in the impugned assessment year, no notice u/s. 148 of the Act can be issued by the assessing officer below the rank of JCIT. Where re-opening is after four years, the JCIT has to be satisfied on the reasons recorded by the AO. . The JCIT has been defined in Section 2(28C) to mean person appointed to be Joint Commissioner of Income Tax or Additional Commissioner of Income Tax u/s. 117(1) of the Act. In the present case notice u/s. 148 of the Act has been issued by the Assessing Officer (AO) after obtaining necessary satisfaction of Addl. CIT – 19(2), Mumbai. The ld. DR furnished copy of the sanction u/s. 151(2) of the Act for issuance of notice u/s. 148 of the Act to the assessee for AY 2005-06 dated 23.03.2011. 4. We have heard the submissions made by the ld. DR and have examined the copy of notice u/s. 148 of the Act dated 25.03.2011 and the sanction letter dated 23.03.2011 issued by the Addl. CIT, Range 19(2), Mumbai. 5. The assessee in appeal had raised additional ground of appeal challenging validity of notice issued u/s. 148 of the Act on the ground that satisfaction has been recorded by CIT whereas the provisions of Section 151(2) of the Act mandates that satisfaction of the JCIT is required. The Tribunal, placing reliance on various decisions, held that the notice u/s. 148 of the Act is defective as approval has been granted by CIT instead of JCIT. Hence the proceedings based on defective notice are bad in law. The Tribunal, while deciding the issue, had also examined the notice u/s. 148 of the Act which was placed on record at page 62 of the paper book filed by the assessee. A perusal of the said notice reveals that satisfaction of CIT was obtained. However, copy of satisfaction from concerned authority was not annexed with the said notice. Now, the Revenue has filed a copy of notice u/s. 148 of the Act along with copy of sanction u/s. 151(2) of the Act recorded by the Addl. CIT. A copy of the 4 MA NO. 225/MUM/2021(A.Y.2005-06) notice u/s. 148 of the Act placed on record by the Revenue bears the signatures of the person to whom the notice was served. In the notice placed on record by the assessee and the copy of notice placed on record by the Revenue there is discrepancy in mentioning of the authority from whom the satisfaction was obtained. Nevertheless, a copy of satisfaction from Addl. CIT has been placed on record by the Department. Therefore, the discrepancy in mentioning the authority in notice u/s. 148 of the Act is laid to rest. The notice u/s. 148 of the Act placed on record by the assessee mentioned CIT as the authority recording satisfaction however, with notice copy of satisfaction was not placed on record at the time of hearing of the appeal. Now that the Department has furnished copy of satisfaction from Addl. CIT, after examining the same we are of the view that a mistake has crept in order of the Tribunal which requires rectification. Hence, order of the Tribunal dated 05.09.2019 is recalled and the appeal is restored to its original number. 6. The Registry is directed to fix the appeal for hearing in due course after notice to both the sides. 7. In the result, miscellaneous application by Revenue is allowed. Order pronounced in the open court on Tuesday the 31 st day of January, 2023 Sd/- Sd/- (OM PRAKASH KANT) (VIKAS AWASTHY) लेखाकार सद瀡य/ACCOUNTANT MEMBER 瀈याियक सद瀡य/JUDICIAL MEMBER मुंबई/ Mumbai, 琈दनांक/Dated 31/01/2023 n.p./v.m 5 MA NO. 225/MUM/2021(A.Y.2005-06) 灹ितिलिप अ灡ेिषत 灹ितिलिप अ灡ेिषत灹ितिलिप अ灡ेिषत 灹ितिलिप अ灡ेिषतCopy of the Order forwarded to : 1. अपीलाथ牸/The Appellant , 2. 灹ितवादी/ The Respondent. 3. आयकर आयु猴(अ)/The CIT(A)-30, Mumbai 4. आयकर आयु猴CIT- 19, Mumbai 5. िवभागीय 灹ितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 6. गाड榁 फाइल/Guard file. BY ORDER, //True Copy// (Dy./Asstt.Registrar)/ ITAT, Mumbai