DCIT CIR 1, V. RAMEH ABAJI WALAWALKAR,

MA 83/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0617 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 26-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY
• Assessee Lawyers: C N VARE
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , ! ! ! ! ' ' ' ' # $ % , & & & & ! ! ! ! ' ' ' ' BEFORE SHRI P.M. JAGTAP, AM AND SHRI AMIT SHUKLA, J M M.A. NO.83/MUM/2013 (ARISING OUT OF ITA NO. 1534/MUM/2010) ASSESSMENT YEAR 2003-04 DY. COMMISSIONER OF INCOME-TAX, CIRCLE-3, THANE (W), MUMBAI- 400602 ( ( ( ( / VS. SHRI RAMESH ABAJI WALAVALKAR, A-703, SHREEJI VILLE, OPP. NITIN COMPOUND, PANCHPAKHADI, THANE(W), MUMBAI-400602 !) ./ PAN : AALPW8136C ( REVENUE ) .. ( *+), / RESPONDENT ) REVENUE BY : SHRI AJAY *+), - . / RESPONDENT BY : SHRI C.N. VARE (' - / DATE OF HEARING : 05-07-2013 /01 - / DATE OF PRONOUNCEMENT : 05-07-2013 $ / O R D E R PER P.M. JAGTAP, A.M. . . , ! : BY THIS MISCELLANEOUS APPLICATION, THE REVENUE IS S EEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE ORDER O F THE TRIBUNAL DATED 22.06.2012 PASSED IN ITA NO. 1534/MUM/2010 2. THE GROUND ON WHICH THE RECTIFICATION OF THE ORD ER OF THE TRIBUNAL DATED 22.06.2012 HAS BEEN SOUGHT BY THE REVENUE, AS GIVEN IN THE MISCELLANEOUS APPLICATION FILED BEFORE US, IS AS UN DER: THE HONBLE ITAT D BENCH MUMBAI VIDE COMMON ORDER NO. 852/MUM/2009 AND 1534/MUM/2010 DATED 22.06.2012 ALLOWED THE APPEAL OF THE ASSESSEE ON TH E 2 M.A. NO.83/MUM/2013 SHRI RAMESH ABAJI WALAVALKAR GROUND THAT THE NOTICE UNDER SECTION 143(2) WAS NOT ISSUED TO THE ASSESSEE AND THEREFORE THE PROCEEDING IS VIT IATED ON THAT ACCOUNT. AS THE ASSESSEE HAS APPEARED AS WELL AS COOPERATED IN THE ENQUIRY AND REASSESSMENT PROCEEDI NGS AND NOT RAISED THE ISSUE OF NON-SERVICE OF NOTICE U /S. 143(2) OF THE ACT, THE APPEAL WAS FILED BEFORE THE HONBLE HIGH COURT BY REFERRING PROVISION OF SECTION 292BB OF TH E ACT WHICH IS DOCTRINE OF WAIVER. SECTION 292BB SAYS AS WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR CO-OPERATED IN ANY IN QUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM AS BEEN DUL Y SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROV ISION OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY UNDER TH IS. SECTION 292BB WAS INSERTED WITH EFFECT FROM 01.04.2008 AND ASSESSMENT ORDER WAS PASSED ON 05.12.2008. HENCE THE SAME IS APPLICABLE IN THE IN STANT CASE. THE HONBLE HIGH COURT WAS OF THE VIEW THAT IF THE CONTENTION IS NOT RAISED BEFORE THE TRIBUNAL AND IF SECTION 292BB IS APPLICABLE, THEN THE DEPARTMENT WAS REQUIR ED TO MOVE M.A. BEFORE THE ITAT. CONSIDERING THE FACTS OF THE CASE AND AS PER DIRECTIONS OF HONBLE HIGH COURT AS DISCUSSED ABOVE , THE MISCELLANEOUS APPLICATION IS BEING MADE FOR RESTORA TION OF THIS APPEAL FOR AY 2003-04. FURTHER IT IS PRAYED T HAT THE ORDER OF THE HONBLE ITAT PASSED VIDE NO. 1534/MUM/2010 DATED 22.06.2012 SET ASIDE AND THE APPEAL FILED BY THE REVENUE IS RESTORED. 3 M.A. NO.83/MUM/2013 SHRI RAMESH ABAJI WALAVALKAR 3. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND AL SO PERUSED THE RELEVANT MATERIAL ON RECORD. AS PER THE DIRECTI ON OF THE TRIBUNAL, THE LD. DR HAS PLACED A COPY OF THE JUDGMENT OF THE HON BLE BOMBAY HIGH COURT DATED 1 ST MARCH 2013 PASSED IN ITA NO. (L)NO.1822 OF 2012 REFERRED TO IN THE MISCELLANEOUS APPLICATION, WHICH READS AS UNDER:- OFFICE OBJECTIONS WAIVED. HEARD, ADMIT ON THE FOLLOWING SUBSTANTIAL QUESTION OF LAW. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN HOLDING T HAT THE ASSESSMENT DONE U/S.147 FOR A.Y. 2003-04 IS NOT VAL ID, IGNORING THE FACT THAT THE ASSESSEE HAS APPEARED AS WELL AS COOPERATED IN THE ENQUIRY AND REASSESSMENT PROCEEDI NGS AND IN VIEW OF PROVISION OF SECTION 292BB, THE ASSE SSMENT CANNOT BE HELD AS INVALID FOR THE REASON OF NON ISS UE OF NOTICE U/S. 143(2) OF THE INCOME TAX ACT, 1961? 4. IT IS MANIFEST FROM THE JUDGMENT OF THE HONBLE BOM BAY HIGH COURT THAT THERE IS NOTHING TO SUGGEST OR ADJUDICAT E THAT A DIRECTION HAS BEEN GIVEN BY THE LORDSHIPS TO THE DEPARTMENT T O MOVE THE MISCELLANEOUS APPLICATION BEFORE THE TRIBUNAL AS CL AIMED BY THE DEPARTMENT. AS A MATTER OF FACT, THE ISSUE OF APPL ICABILITY OF THE PROVISIONS OF SECTION 292BB IN THE CASE OF THE ASSE SSEE FOR A.Y.2003- 04 INVOLVING SUBSTANTIAL QUESTION OF LAW HAS BEEN A DMITTED BY THE HONBLE BOMBAY HIGH COURT AND THIS ISSUE NOW IS PEN DING FOR CONSIDERATION OF THEIR LORDSHIPS ON MERIT. MOREOVER , THERE IS NOTHING ON RECORD TO SHOW THAT THE ISSUE RELATING TO APPLIC ABILITY OF SECTION 292BB WAS RAISED BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL BY RAISING ANY CONTENTION AS NOW RAISED IN T HE MISCELLANEOUS APPLICATION. FURTHERMORE, ISSUE AS TO WHETHER THE PROVISIONS OF 4 M.A. NO.83/MUM/2013 SHRI RAMESH ABAJI WALAVALKAR SECTION 292BB INSERTED IN THE STATUTE WITH EFFECT F ROM 01.04.2008 ARE APPLICABLE TO THE PENDING ASSESSMENT OR ARE APPLICA BLE TO THE ASSESSMENTS FOR A.Y. 2008-09 AND ONWARDS IS A HIGHL Y DEBATABLE ISSUE WHICH, IN OUR OPINION, CANNOT BE ENTERTAINED AND CO NSIDERED IN THE RECTIFICATION PROCEEDINGS U/S. 254(2), THE SCOPE OF WHICH IS VERY LIMITED. WE THEREFORE FIND NO MERIT IN THIS MISCEL LANEOUS APPLICATION FILED BY THE REVENUE AND DISMISS THE SAME. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON TH E CONCLUSION OF HEARING ON 05 TH JULY, 2013. $ - /01 2 (3 05 TH JULY, 2013 0 - 4 (AMIT SHUKLA) (P.M. JAGTAP) & ! JUDICIAL MEMBER ! / ACCOUNTANT MEMBER MUMBAI; 2 ( DATED 05.07.2013 &( . ./ SHEKHAR , PS $ $ $ $ - -- - * * * * 651 651 651 651 / COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. *+), / THE RESPONDENT. 3. 7 ( ) / THE CIT (A) - , MUMBAI 4. 7 /CIT MUMBAI 5. 5'8 *&&( , , / DR, ITAT, MUMBAI BENCH 6. 9 : / GUARD FILE. $( $( $( $( / BY ORDER, +5 *& //TRUE COPY// ; ;; ; / < < < < (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI