The ITO, Ward-3, Mehsana V. Shri Dineshkumar Prahladbhai Patel, Mehsana

MA 233/AHD/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1775 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-04-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 20-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHRIR K DHANESTA
• Assessee Lawyers: SHRI T K KUNJUNNI
• Keywords: Validity of assessment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI D.K. TYAGI, J.M. & SHRI ANIL CHATURVE DI, A.M.) M. A. NO. 233/AHD/2012 (IN ITA NO. 733/AHD/2012) (ASSESSMENT Y EAR: 2008-09) INCOME TAX OFFICER, PATAN WARD-3 2 ND FLOOR, APOLLO ENCLAVE, OPP: JAIN TEMPLE HIGHWAY, MEHSANA. V/S SHRI DINESHKUMAR PRABLADBHAI PATEL, VANSABHA VAS, AT: RANASAN, TALUKA: VIJAPUR, DISTRICT: MEHSANA. (APPELLANT) (RESPONDENT) PAN: AOEPP 5847C APPELLANT BY : SHRI SHRI R.K. DHANESTA, S R. D.R. RESPONDENT BY : SHRI SHRI T.K. KUNJUNNI A.R. ( )/ ORDER DATE OF HEARING : 21-03-201 4 DATE OF PRONOUNCEMENT : 24 -04-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. BY THIS MA, THE REVENUE HAS REQUESTED FOR RECALLING THE ORDER OF THE TRIBUNAL IN ASSESSEES APPEAL FOR A.Y. 2008-09 IN I TA NO. 733/AHD/2012 ORDER DATED 24.08.2012. 2. BEFORE US THE LEARNED D.R. SUBMITTED THAT DURING TH E COURSE OF HEARING BEFORE HONBLE TRIBUNAL, ASSESSEE HAD TAKEN ADDITIO NAL GROUND WHEREIN THE VALIDITY OF ASSESSMENT WAS CHALLENGED ON THE GR OUND THAT THE NOTICE M A NO 233/A/2012(IN ITA NO. 733/A/12) . A.Y. 2008- 09 2 U/S 143(2) OF THE ACT WAS ISSUED AFTER COMPLETION O F 12 MONTHS AND THEREFORE THE ASSESSMENT WAS INVALID. HE FURTHER SU BMITTED THAT THE HON'BLE TRIBUNAL AFTER CONSIDERING THE FACT THAT TH E AO IN HIS ORDER HAS NOTED THAT THE RETURN OF INCOME WAS FILED ON 10.8.2 008 AND THE NOTICE U/S 143(2) WAS ISSUED ON 17.8.2010, UPHELD THE CONTENTI ON OF THE ASSESSEE AND HELD THAT SINCE THE NOTICE U/S 143(2) WAS ISSUE D BEYOND A PERIOD OF 12 MONTHS FROM THE DATE OF FILING OF RETURN AND THEREF ORE THE ASSESSMENT WAS HELD TO BE INVALID. BEFORE US NOW THE LD. D.R. SUBM ITTED THAT WHILE PASSING THE ASSESSMENT ORDER U/S 143(3), DUE TO TYP OGRAPHICAL ERROR, THE DATE OF FILING OF RETURN OF INCOME WAS WRONGLY STAT ED TO BE 10.8.2008 WHEREAS THE CORRECT DATE OF FILING OF RETURN OF INC OME WAS 10.8.2009. HE FURTHER SUBMITTED THAT IF THE CORRECT DATE OF FILIN G OF RETURN OF INCOME IS CONSIDERED, THE NOTICE WAS ISSUED WELL IN TIME AND THEREFORE THE ASSESSMENT WAS VALID. HE FURTHER PRODUCED THE CASE RECORDS TO DEMONSTRATE THAT THE ACTUAL DATE OF FILING OF RETUR N WAS IN FACT 10.8.2009 AND NOT 10.8.2008 WHICH WAS MENTIONED IN THE ORDER PASSED U/S 143(3). HE FURTHER DREW OUR ATTENTION TO THE AFFIDAVIT OF T HE ASSESSEE WHICH WAS FILED BY THE ASSESSEE WHEREIN ALSO THE ASSESSEE HAD ADMITTED TO HAVE FILED THE RETURN OF INCOME ON 10.8.2009. HE THEREFORE SUB MITTED THAT THE SINCE THE ORDER HAS BEEN PASSED CONSIDERING THE WRONG DAT E AND IN VIEW OF THE CORRECT DATE AS PER THE RECORDS, THE ORDER BE RECAL LED. ON THE OTHER HAND, THE LD A.R. COULD NOT CONTROVERT THE SUBMISSIONS MA DE BY ID. D.R. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE TRIBUNAL WHILE PASSING THE ORDER I N ITA NO 733/AHD/2012, HAD PROCEEDED ON THE FACT THAT THE AS SESSEE HAD FILED HIS RETURN OF INCOME FOR AY 2008-09 ON 10.8.2008 (AS WA S NOTED BY THE AO M A NO 233/A/2012(IN ITA NO. 733/A/12) . A.Y. 2008- 09 3 IN HIS ORDER DATED 21.12.2010 PASSED U/S 143(3) OF THE ACT) AND THEREFORE CONSIDERED THE NOTICE ISSUED U/S 143(2) ON 17.8.201 0 TO BE BEYOND A PERIOD OF 1 YEAR FROM THE DATE OF FILING OF RETURN. NOW BEFORE US, THE REVENUE HAS PLACED ON RECORD THE COPY OF THE RETURN OF INCOME AND DEMONSTRATED THAT THE RETURN WAS IN FACT FILED ON 1 0.8.2009 AND THEREFORE THE NOTICE ISSUED U/S 143(2) WAS WITHIN THE PRESCRI BED TIME. THE AFORESAID FACT IS ALSO SUPPORTED BY THE AFFIDAVIT OF THE ASSE SSEE WHICH HAS BEEN PLACED ON RECORD. IN VIEW OF THE AFORESAID FACTS, W E ARE OF THE VIEW THAT SINCE THE APPEAL WAS DISMISSED BY HOLDING THAT THE NOTICE WAS ISSUED BEYOND THE STIPULATED TIME PRESCRIBED UNDER THE ACT , THE DISMISSAL OF APPEAL WAS MISTAKE APPARENT FROM RECORD AND THEREFO RE THE ORDER OF THE TRIBUNAL IN ITA NO 733/AHD/2012 FOR AY 2008-09 DATE D 24.8.2012 IS RECALLED. THE REGISTRY IS DIRECTED TO THE FIX THE A PPEAL IN NORMAL COURSE. 4. IN THE RESULT THE M/A OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 24 - 04 - 2014. SD/- SD/- (D.K. TYAGI) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,A HMEDABAD