Sri Alex C.Joseph, Thiruvalla V. ITo, Thiruvalla

MA 38/COCH/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9682 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 8 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-11-2012
• Assessment Year: 1992-1993
• Appeal Filed On: 05-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: VENUGOPAL
• Keywords: Period of limitation; Question of law
• Section: 147; 148

Judgement Text

1 MA NO. 38/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NO.38/COCH/2010 (ARISING OUT OF I.T.A NO. 707/COCH/2005) (ASSESSMENT YEAR 1992-93) SHRI ALEX C JOSEPH VS THE ITO, WD.1 CHEKKATTU HOUSE THIRUVALLA THADIYOOR PO, THIRUVALLA PAN : ACJPJ4244J (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI VENUGOPAL RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 30-11-2012 DATE OF PRONOUNCEMENT : 07-12-2012 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION ON THE BASIS OF THE DIRECTIONS OF THE HIGH COURT DATED 11- 11-2009. 2. SHRI VENUGOPAL, THE LD.REPRESENTATIVE FOR THE TA XPAYER SUBMITTED THAT NOTICE U/S 147 OF THE ACT WAS SERVED ON THE TAXPAYE R ON 08-04-1997. THE 2 MA NO. 38/COCH/2010 TIME LIMIT FOR ISSUANCE OF NOTICE IS FOUR YEARS FRO M THE END OF THE RELEVANT ASSESSMENT YEAR. FOR THE YEAR UNDER CONSIDERATION, ACCORDING TO THE LD.REPRESENTATIVE, THE LAST DATE FOR ISSUING THE NO TICE IS BE 31-03-1997. HOWEVER, THE NOTICE WAS SERVED ONLY 08-04-1997. TH EREFORE, THE NOTICE WAS ISSUED TO THE TAXPAYER BEYOND THE TIME LIMIT SE T FORTH IN SECTION 149 OF THE ACT. WE HAVE HEARD THE LD.DR, SMT. VIJAYAPRABHA ALSO. 3. THIS APPEAL WAS ORIGINALLY DISPOSED OF BY AN ORD ER DATED 26-06-2006 BY THIS TRIBUNAL. ON APPEAL BY THE TAXPAYER, THE H IGH COURT CONFIRMED THE ADDITION ON MERIT. HOWEVER, LIBERTY WAS GIVEN TO T HE TAXPAYER TO MOVE THIS TRIBUNAL WITH REGARD TO THE LIMITATION FOR INITIATI NG PROCEEDINGS U/S 147 OF THE ACT. IN FACT, THE HIGH COURT HAS OBSERVED AS F OLLOWS: . SO FAR AS REFIXATION OF INCOME IS CONCERNED, W E DO NOT FIND ANY QUESTION OF LAW ARISING FROM THE TRIBUNAL S ORDER. CONSEQUENTLY APPEAL IS DISMISSED LEAVING FREEDOM TO THE APPELLANT TO MOVE THE TRIBUNAL IN ACCORDANCE WITH L AW IF HE HAS A CASE THAT THE ASSESSMENT IS TIME BARRED. 3 MA NO. 38/COCH/2010 IT IS PERTINENT TO NOTE THAT THE TAXPAYER HAS NOT R AISED ANY GROUNDS WITH REGARD TO LIMITATION FOR ISSUING NOTICE U/S 147 OF THE ACT IN THE ORIGINAL GROUNDS OF APPEAL. IN VIEW OF THE DIRECTION OF THE HIGH COURT LEAVING FREEDOM TO THE TAXPAYER TO MOVE THIS TRIBUNAL, THE MISCELLANEOUS APPLICATION OF THE TAXPAYER WAS HEARD ON LIMITATION . 4. THE ONLY CONTENTION OF THE LD.REPRESENTATIVE OF THE TAXPAYER IS THAT THE NOTICE WAS SERVED ON THE TAXPAYER AFTER THE EXP IRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE ASSES SMENT YEAR IN QUESTION IS 1992-93. THE NOTICE WAS ADMITTEDLY ISSUED ON 26 -03-1997 WHICH WAS SERVED ON THE TAXPAYER ON 08-04-1997. THE LANGUAGE OF SECTION 149 AS IT STOOD AT THE RELEVANT POINT OF TIME CLEARLY SAYS TH AT NO NOTICE SHALL BE ISSUED U/S 148 AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THEREFORE, THE NOTICE NEEDS TO BE ISSUED WITHIN FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. ADMITTEDLY THE NOTICE WAS ISSUED ON 26-03-1997 WHICH IS WITHIN FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. IT IS WELL SETTLED PRINC IPLES OF LAW THAT THE ISSUE OF NOTICE AND SERVICE OF NOTICE IS TWO DIFFERENT TH INGS. WHEN THE NOTICE WAS ISSUED WITHIN FOUR YEARS THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE 4 MA NO. 38/COCH/2010 NOTICE WAS ISSUED WITHIN THE PERIOD OF LIMITATION. THEREFORE, THE ASSESSMENT PROCEEDINGS INITIATED U/S 147 IS NOT BAR RED BY LIMITATION AS PROVIDED IN SECTION 149 OF THE ACT. THEREFORE, WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LD.REPRESENTATIVE OF THE TAXP AYER. 5. ACCORDINGLY, THE MISCELLANEOUS APPLICATION OF TH E TAXPAYER IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 TH DECEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 07 TH DECEMBER, 2012 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH