ITO, CHENNAI v. Sri G.Nagarajan, CHENNAI

ITA 1142/CHNY/2009 | 2004-2005
Pronouncement Date: 06-09-2011 | Result: Dismissed

Appeal Details

RSA Number 114221714 RSA 2009
Assessee PAN ACGPN3935P
Bench Chennai
Appeal Number ITA 1142/CHNY/2009
Duration Of Justice 2 year(s) 1 month(s) 27 day(s)
Appellant ITO, CHENNAI
Respondent Sri G.Nagarajan, CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 06-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 06-09-2011
Date Of Final Hearing 30-08-2011
Next Hearing Date 30-08-2011
Assessment Year 2004-2005
Appeal Filed On 09-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI BEFORE DR. O. K. NARAYANAN VICE PRESIDENT AND SHRI GEORGE MATHAN JUDICIAL MEMBER .. I.T.A. NO. 1142/MDS/2009 ASSESSMENT YEAR : 2004-05 THE INCOME-TAX OFFICER WARD-IX(1) CHENNAI V. SHRI G. NAGARAJAN ADVOCATE NO. 161 THAMBU CHETTY STREET CHENNAI-600 001. PAN : ACGPN3935P (APPELLANT) (RESPONDENT) A N D C.O. NO. 128/MDS/2009 (IN ITA NO. 1142/MDS./2009) ASSESSMENT YEAR : 2004-05 SHRI G. NAGARAJAN ADVOCATE V. THE INCOME-TAX OFFICER NO. 161 THAMBU CHETTY STREET WARD-IX(1) CHENNAI-600 001. CHENNAI. (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY : SHRI K.E.B. RENGARAJAN JR. STANDING COUNSEL ASSESSEE BY : SHRI N. DEVANATHAN ADVOCATE DATE OF HEARING : 30-08-201 1 DATE OF PRONOUNCEMENT : 06-09-2011 I.T.A. NO.1142/MDS/2009 & CO NO. 128/MDS/2009 2 O R D E R PER GEORGE MATHAN JUDICIAL MEMBER : ITA NO. 1142/MDS/2009 IS AN APPEAL FILED BY THE RE VENUE AGAINST THE ORDER OF THE LEARNED CIT(APPEALS)-IX CHENNAI IN ITA NO. 65/09-09 DATED 25-3-2009 FOR THE ASSESSMENT YEAR 2004-05 AND CO NO. 128/MDS/2009 IS THE CROSS OBJECTION FILED BY THE ASSESSEE IN ITA NO. 1142/MDS/2009. 2. SHRI K.E.B. RENGARAJAN JR. STANDING COUNSEL REPR ESENTED ON BEHALF OF THE REVENUE AND SHRI N. DEVANATHAN ADVOCATE REPRESENTE D ON BEHALF OF THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LEARNED AUTHORISED REPRE SENTATIVE THAT IN THE CROSS OBJECTION OF THE ASSESSEE THE ASSESSEE HAS CHALLENG ED THE ASSESSMENT ORDER ON ACCOUNT OF THE NON-ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT 1961 (THE ACT FOR SHORT) AND AS IT WENT TO T HE ROOT OF THE ASSESSMENT THE CROSS OBJECTION MAY BE HEARD FIRST. IT WAS THE SUB MISSION THAT NO NOTICE U/S 143(2) HAD BEEN ISSUED TO THE ASSESSEE. IT WAS THE SUBMISSION THAT BEFORE THE LEARNED CIT(A) THE ISSUE WAS RAISED AND THE LEARNED CIT(A) HAD ALSO CALLED FOR THE CASE RECORDS AND ASKED TO SUBMIT THE EXPLANATION OF THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAD REPLIED THAT THE FILE WAS NOT TRACEABLE. IT WAS THE SUBMISSION THAT THE LEARNED CIT(A) HAD RECORDED THA T THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAD NOT PRESSED THE ISSUE ON ACCOUNT OF THE RECENT I.T.A. NO.1142/MDS/2009 & CO NO. 128/MDS/2009 3 AMENDMENT MADE IN SEC. 292BB OF THE ACT. IT WAS TH E SUBMISSION THAT THE LEARNED AUTHORISED REPRESENTATIVE HAD NOT WITHDRAWN THE GROUND BEFORE THE LEARNED CIT(A). IT WAS THE SUBMISSION THAT EVEN IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAD NOT REFERRED TO ANY ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. IT WAS THE SUBMISSION THAT AS NO NOTICE U/S 143(2) HAD BEEN ISSUED THE ASSESSMENT WAS LIABLE TO BE ANNULLED. 4. IN REPLY THE LEARNED DR SUBMITTED THAT IN VIEW OF THE PROVISIONS OF SEC. 292BB THE ASSESSEE HAVING BEEN CO-OPERATED IN THE ASSESSMENT PROCEEDINGS THE ASSESSMENT WAS LIABLE TO BE UPHELD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT TH E OUTSET IT IS NOTICED THAT THE LEARNED CIT(A) HAS SPECIFICALLY GIVEN A FINDING THAT THE ASSESSING OFFICER HAS CATEGORICALLY ADMITTED THAT THE FILES IN THE CASE O F THE ASSESSEE ARE NOT TRACEABLE. IN SUCH A SITUATION ESPECIALLY IN VIEW OF THE FACT THAT THE ASSESSEE HAS CLAIMED THAT NO NOTICE U/S 143(2) HAS BEEN ISSUED AND SERVE D ON THE ASSESSEE AS ALSO IN VIEW OF THE FACT THAT THIS CLAIM OF THE ASSESSEE HA S NOT BEEN REBUTTED BY THE REVENUE WITH ANY COGENT EVIDENCE OR MATERIAL AND AL SO ON ACCOUNT OF THE FACT THAT THE LEARNED AUTHORISED REPRESENTATIVE OF THE A SSESSEE HAS SPECIFICALLY SUBMITTED THAT HE HAS NOT WITHDRAWN THE GROUND IN R EGARD TO THE NOTICE U/S 143(2) OF THE ACT BEFORE THE LEARNED CIT(A) AND THI S HAS ALSO NOT BEEN CONTROVERTED BY THE REVENUE WE ARE OF THE VIEW THA T THE ASSESSMENT IN THE CASE OF THE ASSESSEE CANNOT SURVIVE. OUR VIEW ALSO FIND S SUPPORT FROM THE DECISION OF I.T.A. NO.1142/MDS/2009 & CO NO. 128/MDS/2009 4 THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT V. CEBON INDIA LTD. REPORTED IN (2010) 229 CTR 188 AS ALSO THE PRINCIPL ES LAID DOWN BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V. MANI KAKAR R EPORTED IN (2000) 178 TAXMAN 315. IN THE CIRCUMSTANCES IN VIEW OF THE NON-ISSU ANCE OF THE NOTICE U/S. 143(2) OF THE ACT THE ASSESSMENT AS COMPLETED BY THE ASSE SSING OFFICER ON 31-12-2008 STANDS ANNULLED. IN THE CIRCUMSTANCES THE CROSS O BJECTION OF THE ASSESSEE STANDS ALLOWED. AS WE HAVE ALREADY QUASHED THE ASSESSMENT ORDER THE APPEAL FILED BY THE REVENUE BECOMES INFRUCTUOUS AND IS DISMISSED AS SUCH. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 06 TH DAY OF SEPTEMBER 2011 AT CHENNAI. SD/- SD/- (DR. O. K. NARAYANAN) (GEORGE MATHAN) VICE PRESIDENT JUDICIAL MEMBER CHENNAI DATED THE 06 TH SEPTEMBER 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE