Commissioner of Income-tax., Faizabad V. M/s.Laxmi Modern Rice Mills, Faizabad

MA 3/LKW/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8748 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-06-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 05-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Assessee Lawyers: M P MISHRA
• Keywords: Opportunity of being heard
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI B. R. JAIN , ACCOUNTANT MEMBER M. A NO. 03/LKW/2012 [ARISING OUT ITA NO. 428/LKW/2011] ASSESSMENT YEAR: 2006 - 07 CIT FAIZABAD V. M/ S LAXMI MODERN RICE MILLS VILL. & POST KOTSARAY MOTI NAGAR, FAIZABAD PAN: AACPL2156Q (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI. K. C. MEENA, D.R. RESPONDENT BY: SHRI. M. P. MISHRA, ADVOCATE DATE OF HEARING: 08.06.2012 DATE OF PRONOUNCEMENT: 12 .06.2012 O R D E R PER S UNIL KUMAR YADAV : THE REVENUE HAS PREFERRED THIS MISCELLANEOUS APPLICATION AGAINST THE ORDER OF THE APPELLATE TRIBUNAL DATED 18.1.2012 IN ITA NO. 428/LKW/2011 WITH THE SUBMISSION THAT WHILE ADJUDICATING THE APPEAL, THE TRIBUNA L HAS IGNORED THE PROVISIONS OF SECTION 292BB OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT) WHEREIN IT HAS BEEN STATED THAT WHERE THE ASSESSEE HAS APPEARED IN ANY PROCEEDINGS OR CO - COOPERATED IN ANY ENQUIRY RELATING TO THE ASSESSMENT OR RE - ASSESSMENT, IT SHALL BE DEEMED THAT NOTICE UNDER ANY PROVISIONS OF THIS ACT , WHICH IS REQUIRED TO BE SERVED UPON HIM , HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND THE ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTIONS IN ANY PROCEEDING OR ENQUIRY UNDER THIS ACT THAT NOTICE WAS SERVED UPON HIM IN AN IMPROPER MANNER. THEREFORE, A MISTAKE IS CREPT IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR RECTIFICATION. THE LD. D.R. FURTHER CONTENDED : - 2 - : THAT PRINCIPAL INGR EDIENT FOR EXERCISE OF POWERS UNDER SECTION 263 OF THE ACT IS GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. THIS WAS GIVEN AND AVAILED BY THE ASSESSEE AND AT NO STAGE DID THE ASSESSEE ASSERT THAT NOTICE UNDER SECTION 263 OF THE ACT WAS DEFECTIVE IN A NY MANNER AND NO OBJECTION TO THE PROCEEDINGS UNDER SECTION 263 OF THE ACT W AS RAISED BY IT THOUGH IT WAS REPRESENTED BY ITS COUNSEL. 2 . THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE CONTENTIONS RAISED IN THE MISCELLANEOUS APPLICATION WERE NEVER AN ISSUE BEFORE THE TRIBUNAL. THE ISSUE BEFORE THE TRIBUNAL WAS THAT SHOW CAUSE NOTICE WAS ISSUED BY THE ITO WHEREAS THE ACTI O N FOR INITIATION OF PROCEEDINGS UNDER SECTION 263 OF THE ACT ARE TO BE TAKEN BY THE LD. COMMISSIONER OF INCOME - TAX AFTER BEING SATIS FIED THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, THE CONTENTIONS RAISED IN THE MISCELLANEOUS APPLICATION ARE NOT AT ALL RELEVANT TO THE PRESENT CONTROVERSY OF THE CASE. 3 . HAVING GIVEN A THO UGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE MISCELLANEOUS APPLICATION VIS - - VIS THE ORDER OF THE TRIBUNAL, WE FIND THAT THE ISSUE RAISED BEFORE THE TRIBUNAL WAS WITH REGARD TO THE SATISFACTION OF THE LD. COMMISSIONER OF INCOME - TAX BEFORE ISSUING SHOW CAUSE NOTICE FOR INITIATING PROCEEDINGS UNDER SECTION 263 OF THE ACT. IN THE INSTANT CASE SHOW CAUSE NOTICE WAS ISSUED BY THE ITO (TECHNICAL) AND NOT BY THE LD. COMMISSIONER OF INCOME - TAX AND NOTHING WAS PLACED ON RECORD WI TH REGARD TO THE SATISFACTION OF THE LD. COMMISSIONER OF INCOME - TAX WHILE ISSUING SHOW CAUSE NOTICE FOR INITIATING PROCEEDINGS UNDER SECTION 263 OF THE ACT. WHILE ADJUDICATING THE ISSUE, THE TRIBUNAL HAS FOLLOWED THE ORDER OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF SHRI. RAJESH KUMAR PANDEY, PRATAPGARH V. CIT, FAIZABAD IN WHICH UNDER IDENTICAL CIRCUMSTANCES, THE T RIBUNAL HAS SET ASIDE THE ORDER PASSED UNDER SECTION 263 OF THE ACT. AGAINST THIS ORDER OF THE TRIBUNAL, THE REVENUE HAS PREFERRED AN APPEAL B EFORE THE HON'BLE HIGH COURT OF ALLAHABAD AND THE SAME IS PENDING FOR DISPOSAL. SINCE THE TRIBUNAL HAS ADJUDICATED THE ISSUE FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL OF THIS BENCH, THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE : - 3 - : TRIBUNAL. WE ACCORDIN GLY FIND NO MERIT IN THE MISCELLANEOUS APPLICATION. WE, THEREFORE, REJECT THE SAME. 4 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.6.2012. SD/ - SD/ - [B. R. JAIN ] [ S UNIL KUMAR Y ADAV ] AC COUNTANT MEMBER JUDICIAL MEMBER DATED: 12.6.2012 JJ: 0806 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR