ITO, SRIGANGANAGAR V. M/s. City Garden, SRIGANGANAGAR

MA 95/JODH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0875 (ITAT-JODHPUR)
• Duration Of Justice: 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-09-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 22-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: R N JAGID
• Section: 148; 144; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER MA NO.95/JODH/2013 (ARISING OUT OF ITA NO. 671/JU/2007) ASSESSMENT YEAR : 2003-04 ITO, WARD-1, VS. M/S. CITY GARDEN GAGAN PATH, SRIGANGANAGAR. SRIGANGANAGAR. (APPELLANT) (RESPONDENT) PAN: APPJC7893L APPELLANT BY : SHRI N.A. JOSH I, D.R. RESPONDENT BY : SHRI R.N. JAGID. DATE OF HEARING : 03-09-2013 DATE OF PRONOUNCEMENT : 05-09-2013 ORDER PER N.K. SAINI, A.M. THIS MISCELLANEOUS APPLICATION DATED 11/12/2012 HAS BEEN FILED BY THE DEPARTMENT AGAINST THE ORDER DATED 18-07-2012 PASSE D IN ITA NO. 671/JU/2007 FOR THE A.Y. 2003-04 STATING THEREIN AS UNDER:- SIR, SUB: FILING OF MISCELLANEOUS APPLICATION U/S 254( 2) OF THE I.T. ACT, 1961 IN THE CASE OF M/S CITYI GARDEN, SRIGANGANAGAR , A.Y. 2003-04, PAN AAJPC7893L ITANO. 671/JU/2007-REG: KINDLY REFER TO THE ABOVE MENTIONED SUBJECT. IN THIS REGARD, IT IS SUBMITTED THAT THE HONB'LE ITAT JODHPUR VIDE ITS ORDER DATED 27/04/2012 (FOR CO) IN ITA NO. 621/JU/ 2007, C.O. NO. 2 48A/JU/2007 HAS DISMISSED THE APPEAL OF THE REVENUE QUOTING, THERE IS AS SUCH AS INHERENT LACK OF JURISDICTION WITH JT. CIT, SRIGANGANANGAR IN THE INSTANCE CASE TO ISSUE A NOTICE U/S 148(1) OR TO RE CORD THE REASON U/S 148(2) PRECEDING THE SAME, AS UNDISPUTEDLY DONE BY HIM ON 14/10/2004, BEING NOT AUTHORIZED TO BE AN AO AT THE RELEVANT TI ME IN RESPECT OF THE PERSON, AS THE ASSESSEE, OVER WHICH HE HAD TERRITOR IAL JURISDICTION. THE CHALLENGE TO HIS JURISDICTION TO ISSUE THE SAID NOT ICE U/S 148, WOULD THEREFORE, FALL TO BE DECIDED BY US IN APPEAL IMPUG NING THE SAID NOTICE FOR WANT OF JURISDICTION, THE RELEVANT GROUND BY THE AS SESSEE READING AS:- THAT THE LD.CIT, BIKANER HAS ERRED IN HOLDING THA T JCIT SRIGANGANAGAR HAS JURISDICTION AS AO ON THE DATE OF ISSUE OF NOTI CE U/S 148 OF THE ACT. THE ENSUING IMPUGNED ASSESSMENT IS, THEREFORE, WI THOUT JURISDICTION, LIABLE TO BE CANCELLED. WE ACCORDINGLY DIRECT SO. IT IS HUMBLY SUBMITTED THAT IN THE INSTANT CASE T HE ASSESSEE FILED ITS RETURN OF INCOME ON 30.09.2003. NOTICE U/S 148 WAS ISSUED BY THE ASSESSING OFFICER ON 14.10.2004 AFTER RECORDING REA SONS AND SERVED UPON THE ASSESSEE ON 20.1O.2004. THE ASSESSEE RAISED OBJ ECTION ON THE ISSUE OF JURISDICTIONON2L.02.2006 WHICH WAS DULY MET OUT BY THE ASSESSING OFFICER ON 27.02.2006. IT IS PERTINENT TO MENTION HERE THAT AS PER PROVI SIONS OF SECTION 24 OF THE INCOME TAX ACT. JURISDICTION OF ASSESSING OFFICERS. 124. (1) WHERE BY VIRTUE OF ANY DIRECTION OR ORDER ISSUED UNDER SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 120 , THE ASSESSING OFFICER HAS BEEN VESTED WITH JURISDICTION OVER ANY AREA, WITHIN THE LIMITS OF SUCH AREA, HE SHALL HAVE JURISDICTION- (A) IN RESPECT OF ANY PERSON CARRYING ON A BUSINES S OR PROFESSION, IF THE PLACE AT WHICH HE CARRIES ON HIS BUSINESS OR PR OFESSION IS SITUATE WITHIN THE AREA, OR WHERE HIS BUSINESS OR P ROFESSION IS, CARRIED ON IN MORE PLACES THAN ONE, IF THE PRINCIPA L PLACE OF HIS BUSINESS OR PROFESSION IS SITUATE WITHIN THE AREA, AND (B) IN RESPECT OF ANY OTHER PERSON RESIDING WITHIN THE AREA. (2) WHERE A QUESTION ARISES UNDER THIS SECTION AS TO WHETHER AN ASSESSING OFFICER HAS JURISDICTION TO ASSESS ANY PE RSON, THE QUESTION SHALL BE DETERMINED BY THE DIRECTOR GENERAL OR THE CHIEF COMMISSIONER OR THE COMMISSIONER; OR WHERE THE QUESTION IS ONE RELATING TO AREAS WITHIN THE 3 JURISDICTION OF DIFFERENT DIRECTORS GENERAL OR CHIE F COMMISSIONERS OR COMMISSIONERS, BY THE DIRECTORS GENERAL OR CHIEF CO MMISSIONERS OR COMMISSIONERS CONCERNED OR, F THEY ARE NOT IN AGREE MENT, BY THE BOARD OR BY SUCH DIRECTOR GENERAL OR CHIEF COMMISSIONER OR C OMMISSIONER AS THE BOARD MAY' BY NOTIFICATION IN THE OFFICIAL GAZETTE, SPECIFY. (3) NO PERSON SHALL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER (A) WHERE HE HAS MADE A RETURN [UNDER SUB-SECTION (1) OF SECTION 115 WD OR] UNDER SUB-SECTION (1) OF SECTION 139 , AFTER THE EXPIRY OF ONE MONTH FROM THE DATE ON WHICH HE WAS S ERVED WITH A NOTICE UNDER SUB-SECTION (1) OF SECTION 142 OR [SUB-SECTION (2) OF SECTION 115WE OR] SUB-SECTION (2) OF SECTION 143 OR AFTER THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. (B) WHERE HE HAS MADE NO SUCH RETURN, AFTER THE EXP IRY OF THE TIME ALLOWED BY THE NOTICE UNDER [SUB-SECTION (1) OF SEC TION 142 OR UNDER SECTION148 FOR THE MAKING OF THE RETURN OR BY THE NOTICE UNDER THE FIRST PROVISO TO SECTION 144 ] TO SHOW CAUSE WHY THE ASSESSMENT SHOULD NOT BE COMPLETED TO THE BEST OF T HE JUDGMENT OF THE ASSESSING OFFICER, WHICHEVER IS EAR LIER. (4) SUBJECT TO THE PROVISIONS OF SUB-SECTION (3), W HERE AN ASSESSEE CALLS IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER, THEN THE ASSESSING OFFICER SHALL, IF NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM, REFER THE MATTER FOR DETERMINATION UNDER SUB-SECTION (2) BEFORE THE ASSE SSMENT IS MADE. (5) NOT WITHSTANDING ANYTHING CONTAINED IN THIS SEC TION OR IN ANY DIRECTION OR ORDER ISSUED UNDER SECTION 120 , EVERY ASSESSING OFFICER SHALL HAVE ALL THE POWERS CONFERRED BY OR UNDER THIS ACT ON AN ASSESSI NG OFFICER IN RESPECT OF THE INCOME ACCRUING OR ARISING OR RECEIVED WITHIN T HE AREA, IF ANY, OVER WHICH HE HAS BEEN VESTED WITH JURISDICTION BY VIRTU E OF THE DIRECTIONS OR ORDERS ISSUED UNDER SUB-SECTION(1) OR SUB-SECTION(2 ) OF SECTION 120. ] IT IS CLEAR FROM PLAIN READING OF SECTION 124(3), THAT THE ASSESSEE HAS NOT RAISED THE ISSUE OF JURISDICTION WITHIN THE TIM E LIMIT PRESCRIBED IN THE INCOME TAX ACT. THIS IS A MISTAKE APPARENT FROM REC ORD. IT IS FURTHER SUBMITTED THAT SUCH A MISTAKE WOULD BE REQUIRED TO BE CORRECTED KEEPING IN VIEW THE JUDGEMENT IN THE CASE S CIT US. QUILON MARINE PRODUCE CO. (1986) 157 ITR 448). MODU FINBLO VS. 1 ST WTO (1995) 53 ITD 53 (PUNE) (TM) ITO VS. GILARD ELECTRONICS (1986) 18 ITD 176 (JP), ACIT VS. SORNAMY ALKINGTON LTD. (1994) 49 ITD 2A7 (DELHI). 4 THIS MAY KINDLY BE TREATED AS APPLICATION FILED U / S 254(2) OF THE INCOME TAX ACT. I961. 2. DURING THE COURSE OF HEARING, LD. D.R. REITERATED THE CONTENTS OF THE AFORESAID MISC. APPLICATION AND LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO APPARENT MISTAKE, WHICH CAN BE RECTIFIED UNDE R SECTION 254(2) OF THE I.T. ACT 1961 (HEREINAFTER REFERRED TO AS ACT, FOR SHO RT). 3. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE P RESENT CASE, THE DEPARTMENT HAS STATED THAT THE ASSESSING OFFICER WAS HAVING JU RISDICTION AND THE ISSUE RELATING TO THE JURISDICTION WAS NOT RAISED BEFORE HIM. HOWEVER, NOTHING IS BROUGHT ON RECORD TO SUGGEST THAT THERE IS ANY MIST AKE IN THE ORDER DATED 18/07/2012 PASSED BY THE ITAT. THE SAID ORDER PERT AINING TO THE APPEAL OF THE DEPARTMENT IN ITA NO. 671/JU/2007 HAS BEEN PASSED A FTER CONSIDERING THE FACT THAT CROSS OBJECTION NO. 48A/JU/2007 OF THE ASSESSE E WAS ALLOWED VIDE ORDER DATED 27/04/2012 BY CONSIDERING THE ARGUMENTS OF TH E LD. D.R. AND THE WRITTEN SUBMISSIONS OF THE ASSESSEE. IN THE SAID ORDER IT IS CATEGORICALLY STATED AS UNDER:- IF THE ASSESSEES CROSS OBJECTION IS DECIDED BY T HE TRIBUNAL IN ITS FAVOUR, THE REVENUES APPEAL MAY NOT SURVIVE FOR CONSIDERAT ION. LD. D.R. ALSO CONCURRED TO THE SAID PROPOSITION AND SINCE THE ASSESSMENT RE LEVANT TO THE APPEAL OF THE 5 DEPARTMENT WAS QUASHED VIDE ORDER DATED 27/04/2012, ON THAT BASIS, THE APPEAL OF THE DEPARTMENT ON QUANTUM ADDITION WAS CONSIDERE D AS INFRUCTUOUS. 4. NOW, THE DEPARTMENT ALTHOUGH HAS FILED MISC. APP LICATION, HOWEVER, NEITHER ANY APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL D ATED 18/07/2012 HAS BEEN POINTED OUT NOR IT WAS BROUGHT ON RECORD THAT THE D EPARTMENT HAS NOT ACCEPTED THE ORDER DATED 27/04/2012 IN C.O.NO. 48A/JU/2007 A RISING OUT OF I.T.A.NO. 671/JU/2007. WE, THEREFORE, DO NOT SEE ANY MERIT I N THIS MISC. APPLICATION FILED BY THE DEPARTMENT. 5 . ACCORDINGLY, THE SAME IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05- 09-2013.) (HARI OM MARATHA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 05 TH SEPTEMBER, 2013 VR/- COPY TO:- 1.THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE DR 6. THE GUARD FILE ASSISTANT REGISTRAR ITAT, JODHPUR.