S. Bhagawan, Bangalore v. ITO, Bangalore

ITA 1075/BANG/2016 | 2006-2007
Pronouncement Date: 30-09-2016 | Result: Allowed

Appeal Details

RSA Number 107521114 RSA 2016
Assessee PAN DWITH1158B
Bench Bangalore
Appeal Number ITA 1075/BANG/2016
Duration Of Justice 4 month(s) 4 day(s)
Appellant S. Bhagawan, Bangalore
Respondent ITO, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-09-2016
Date Of Final Hearing 26-09-2016
Next Hearing Date 26-09-2016
Assessment Year 2006-2007
Appeal Filed On 26-05-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH- A BANGALORE BEFORE SHRI A.K GARODIA ACCOUNTANT MEMBER AN D SMT. ASHA VIJAYARAGHAVAN JUDICIAL MEMBE R ITA NO.1075 /BANG /2016 (ASST. YEAR 2006-07) SHRI S BHAGAWAN NO.7/1 VYDEHI DEWAN MADHAVA ROAD BASAVANAGUDI BANGALORE. . APPELLANT VS. THE INCOME-TAX OFFICER WARD 3(1) 5 TH FLOOR UNITY BUILDINGS ANNEX BENGALURU. . RESPONDENT APPELLANT BY : SHRI SHYAM CHAKRAVARTHY CA RESPONDENT BY : SHRI TSHERING ONGDA JCIT DATE OF HEARING : 26-09-2016 DATE OF PRONOUNCEMENT : 30-09-2016 O R D E R PER ASHA VIJAYARAGHAVAN JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS) - 5 BENGALURU DATED 3/3/2016 AND IT PERTAINS TO THE ASSESSMENT YEAR 2 006-07. ITA NO.1075/B/16 2 2. THE ASSESSEE IS AN INDIVIDUAL FILING HIS RETURN OF INCOME REGULARLY. FOR THE IMPUGNED YEAR THE ASSESSEE HAS FILED HIS RETURN OF INCOME IN THE CAPACITY OF AN INDIVIDUAL DECLARING S ALARY INCOME OF RS.4 62 510/- ON 12/7/2006. THERE WAS NO SCRUTINY ASSESSMENT MADE IN THE CASE OF ASSESSEE. 3. NOTICE U/S 148 DATED 27/3/2013 WAS ISSUED TO THE ASSESSEE RE- OPENING THE CASE FOR THE YEAR 2006-07. THE NOTICE WAS ISSUED IN THE NAME OF S BHAGAWAN AND OTHERS. IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT THE ASSESSEE VIDE LETTER FILED ON 1/4/2 013 REQUEST FOR ISSUE OF REASONS RECORDED FOR ISSUING THE NOTICE U/ S 148. THE ASSESSEE FURTHER STATED THAT HE HAS NO INCOME LIAB LE TO BE TAXED DURING THE IMPUGNED ASSESSMENT YEAR WHICH HAS ESCAP ED ASSESSMENT. NO NOTICE U/S 143(2) AND U/S 142(1) WA S SERVED ON THE ASSESSEE FOR THE IMPUGNED YEAR UNDER CONSIDERATION. 4. AGGRIEVED BY THE ORDER OF AO THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE CIT(A) AND ONE OF THE GROUNDS RAI SED WAS WITH RESPECT TO NON ISSUANCE OF NOTICE U/S 143(2). THE ASSESSEE HAD SUBMITTED AS FOLLOWS ITA NO.1075/B/16 3 10.1 IT IS SUBMITTED THAT THE LEARNED AO PURSUANT TO THE ISSUE OF NOTICE U/S 148 OF THE ACT HAS NOT SERVED N OTICE U/S 143(2) OF THE ACT. SERVICE OF NOTICE U/S 143(2 ) OF THE ACT IS MANDATORY TO ASSUME JURISDICTION UNDER THE A CT. WHEN AN ORDER HAS TO BE PASSED U/S 143(3) READ WITH 147 OF THE ACT SERVICE OF NOTICE U/S 143(2) IS SIN E QUA NON. IN CASE THE NOTICE U/S 143(2) IS NOT ISSUED T HE PROCEEDINGS UNDER THE ACT IS NULL AND VOID. IN THE INSTANT CASE NOTICE U/S 143(2) WAS NEVER SERVED ON THE ASSESSEE AND HENCE THERE IS A LEGAL DEFECT IN THE O RDER PASSED U/S 147 READ WITH 143(3) AND THIS DEFECT IS NOT CURABLE. 10.2 THE HONBLE SUPREME COURT IN THE CSE OF ACIT & ANOTHER VS. HOTEL BLUE MOON HAS HELD AS UNDER:- IF AN ASSESSMENT HAS TO BE COMPLETED U/S 143(3) READ WITH 1158BC NOTICE U/S 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING F TH E BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSIN G AUTHORITY TO ISSUE NOTICE U/S 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND IS NOT CURABLE. THEREFORE THE REQUIREMENT OF NOTICE U/S 143(2) CANNOT BE DISPENSED WITH ITA NO.1075/B/16 4 HENCE IT IS PRAYED BEFORE YOUR GOODSELF TO HOLD THA T THE NOTICE U/S 143(2) WAS SERVED ON THE ASSESSEE AND TH E ASSESSMENT ORDER PASSED IS WITHOUT JURISDICTION AND THE SAME REQUIRES TO BE CANCEEL3D IN TOTAL IN THE INTER EST OF EQUITY AND JUSTICE. 5. THE CIT(A) VIDE ITS ORDER DATED 3/3/2016 HAD NOT DISCUSSED OR GIVEN ANY FINDING WITH RESPECT TO ISSUANCE OF NO TICE U/S 143(2). IN THIS CIRCUMSTANCE THE MATTER IS RESTORED BACK T O THE FILE OF THE CIT(A) WHO SHALL DECIDE THE ISSUE IN ACCORDANCE WI TH LAW AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT THE APPEAL IS SET ASIDE FOR STATI STICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH SEPTEMBER 2016 . SD/- SD/- (AK GARODIA) (ASHA VIJAYA RAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE DATED : 30/09/2016 VMS ITA NO.1075/B/16 5 COPY TO :1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED 4.THE CIT(A) CONCERNED 5.DR 6.GF BY ORDER ASST. REGI STRAR ITAT BANGALORE