Shri Hemant J.Sheth, Surat v. The Income tax Officer,Ward-7(3),, Surat

ITA 1241/AHD/2010 | 2007-2008
Pronouncement Date: 31-08-2010 | Result: Partly Allowed

Appeal Details

RSA Number 124120514 RSA 2010
Assessee PAN AEQPS6067K
Bench Ahmedabad
Appeal Number ITA 1241/AHD/2010
Duration Of Justice 4 month(s) 9 day(s)
Appellant Shri Hemant J.Sheth, Surat
Respondent The Income tax Officer,Ward-7(3),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 31-08-2010
Date Of Final Hearing 25-08-2010
Next Hearing Date 25-08-2010
Assessment Year 2007-2008
Appeal Filed On 21-04-2010
Judgment Text
IN THE IN THE IN THE IN THE INCOME TAX APPELLATE TRIBUNAL INCOME TAX APPELLATE TRIBUNAL INCOME TAX APPELLATE TRIBUNAL INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH B BB B BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI T.K.SHARMA T.K.SHARMA T.K.SHARMA T.K.SHARMA JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER AND AND AND AND SHRI N.S. SAINI SHRI N.S. SAINI SHRI N.S. SAINI SHRI N.S. SAINI ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE OF HEARING:30-8-10 DRAFTED ON: 30-8-10 ITA.NO.1241/AHD/2010 ASSESSMENT YEAR:2007-08 SHRI HEMANT J.SHETH 601 DEEPAK AWAS ANAND MAHAL ROAD GAIL TOWER ADAJAN SURAT. VS. INCOME TAX OFFICER WARD 7(3) AAYAKAR BHAVAN MAJURA GATE SURAT. PAN/GIR NO. : AEQPS6067 K (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI RAJESH M. UPADHYAY RESPONDENT BY: SHRI K.MADHUSUDAN SR.D.R. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE O RDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-V SUR AT DATED 11- 2-2010 FOR THE ASSESSMENT YEAR 2007-08. 2. GROUND NO 1 TO 4 OF THE APPEAL OF THE ASSESSEE A RE DIRECTED AGAINST INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE I.T. ACT. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE UNDISPUTED FACT S OF THE CASE ARE THAT THE ASSESSEE FILED ORIGINAL RETURN OF INCOME F OR ASSESSMENT YEAR 2007-08 ON 30-7-2007 WHICH WAS REVISED ON 30-1 -2008. THEREAFTER THE LEARNED ASSESSING OFFICER ISSUED NOT ICE UNDER SECTION 148 ON 7-1-2009. THE CONTENTION OF THE LEA RNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE IS THAT THE NOTICE I SSUED ON 7-1- 2009 UNDER SECTION 148 IS INVALID AS THE RETURN FIL ED ON 30-1-2008 WAS PENDING FOR ASSESSMENT. THUS THE ISSUE WHICH R EQUIRES - 2 - ADJUDICATION BY US FIRSTLY IS THAT WHETHER THE RETU RN WHICH WAS FILED ON 30-1-2008 WAS PENDING ON 7-1-2009 OR THE SAME BE CAME FINAL. IT IS NOT IN DISPUTE THAT IF THE RETURN HAS BECOME FINAL THEN THE LEARNED ASSESSING OFFICER COULD HAVE VALIDLY ISSUED NOTICE UNDER SECTION 148 IF OTHER CONDITIONS OF THE ACT WERE SAT ISFIED. IN THE INSTANT CASE IT IS NOT IN DISPUTE THAT THE OTHER C ONDITION FOR ISSUANCE OF NOTICE UNDER SECTION148 WAS SATISFIED I N THE INSTANT CASE AND THE ONLY DISPUTE IS REGARDING PENDENCY OF A VALID RETURN FILED ON 30-1-2008 ON THE DATE OF ISSUANCE OF NOTIC E ON 7-1-2009 UNDER SECTION148 OF THE ACT. 4. WE FIND THAT PROVISIONS OF PROVISO TO SECTION 14 3(2) HAVE UNDERGONE AN AMENDMENT W.E.F. 1-4-2008. THE AMENDED PROVISION PROVIDES THAT NO NOTICE UNDER SECTION 143(2) SHALL BE SERVED AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANC IAL YEAR IN WHICH THE RETURN WAS FURNISHED. 5. PROVISO OF SECTION 143(2) PROVIDES FOR THE PROCE DURE OF ASSESSMENT. THUS IT IS BASICALLY A PROCEDURAL SECT ION. THE AMENDMENT MADE IN PROVISO TO SECTION 143(2) SHALL G OVERN ALL THE PROCEEDINGS WHICH ARE TAKEN ON OR AFTER THE DATE OF AMENDMENT. THUS AFTER 30-9-2008 NO NOTICE CAN BE SERVED UNDER SECTION 143(2) IN RESPECT OF RETURN WHICH WAS FILED ON OR BEFORE 3 1-3-2008. ACCORDINGLY WE FIND THAT THE RETURN WHICH WAS FILE D ON 30-1-2008 BECAME FINAL BECAUSE OF NON ISSUANCE OF ANY NOTICE UNDER SECTION 143(2) ON OR BEFORE 30-9-2008. IN THE CIRCUMSTANCES IN OUR CONSIDERED OPINION NO VALID RETURN WAS PENDING ON 7 -1-2009 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AND THEREFORE THE NOTICE UNDER CONSIDERATION CANNOT BE HELD AS INVALID. THUS THESE GROUNDS OF APPEAL OF THE ASSESSEE ARE DISMISSED. 6. GROUND NO.5 OF THE ASSESSEE IS DIRECTED AGAINST DISALLOWANCE OF EXEMPTION OF `.5 00 000/- CLAIMED UNDER SECTION 10(10C) OF THE ACT AND FOR THE BALANCE AMOUNT RELIEF UNDER SECTION 89(1) OF THE I.T.ACT 1961. - 3 - 7. WE FIND THAT RECENTLY THE HON'BLE SUPREME COURT IN THE CASE OF CHANDRA RANGANATHAN & OTHERS VS. CIT (2010) 326 ITR 49(SC) HAS DECIDED THE ISSUE OF DEDUCTION UNDER SECTION 10 (10C) BEING COMPENSATION RECEIVED ON OPTIONAL EARLY RETIREMENT SCHEME AND IN VIEW OF THIS DECISION THE ISSUE IS REQUIRED TO BE R E-ADJUDICATED BY THE LEARNED ASSESSING OFFICER AFTER CONSIDERING THE ABOVE DECISION OF THE HON'BLE SUPREME COURT AND THE C.B.D.T. LETTE R DATED 8 TH MAY 2009 REFERRED TO BY THE HON'BLE SUPREME COURT I N THE ABOVE ORDER. WE THEREFORE SET ASIDE THE ORDERS OF THE LO WER AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF THE LEARN ED ASSESSING OFFICER FOR FRESH ADJUDICATION OF THE ISSUE IN THE LIGHT OF THE ABOVE OBSERVATIONS MADE HEREINABOVE AFTER ALLOWING REASON ABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS THIS GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 8. GROUND NO.6 7 AND 8 OF THE APPEAL READS AS UNDE R :- 6. WHEN CLAIM OF DEDUCTION UNDER SECTION 10(10C) A ND RELIEF UNDER SECTION 89(1) CLAIMED BY ASSESSEE ALLO WED UNDER SECTION 143(1) LEARNED AUTHORISED REPRESENTATIVE O F THE ASSESSEE IN ABSENCE OF SPECIFIC INFORMATION SUBSEQU ENTLY COMING TO HIM MAY NOT PERMIT HIM TO TAKE ACTION UND ER SECTION 147 OF I.T. ACT. 7. THOUGH NOTICE UNDER SECTION 148 OF I.T. ACT WAS ISSUED AND SERVED ON THE ASSESSEE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE DOES NOT PASS ORDER UNDER SECTION 143 R.W.S. 147 OF I.T. ACT SHOWS THAT HE HA D NO REASON AS SUCH TO ISSUE NOTICE UNDER SECTION 148 OF I.T. A CT. 8. NOTICE UNDER SECTION 148 WAS ISSUED WITHOUT SANC TION OF CIT/ADDL.CIT AND THEREFORE NOTICE IS BAD IN LAW AND ASSESSMENT IS INVALID. 9. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE HAS MADE NO SUBMISSIONS AT THE TIME OF HEARING ON THE A BOVE GROUNDS OF APPEAL TAKEN IN THE MEMORANDUM OF APPEAL AND THE REFORE THEY ARE BEING DISMISSED FOR WANT OF PROSECUTION. - 4 - 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON THIS 31 ST DAY OF AUGUST 2010. SD/- SD/- ( T.K. SHARMA ) ( T.K. SHARMA ) ( T.K. SHARMA ) ( T.K. SHARMA ) ( N.S. SAINI ) ( N.S. SAINI ) ( N.S. SAINI ) ( N.S. SAINI ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTAN ACCOUNTAN ACCOUNTAN ACCOUNTANT MEMBER T MEMBER T MEMBER T MEMBER AHMEDABAD: ON THIS 31 ST DAY OF AUGUST 2010 COMPILED AND COMPARED BY: PATKI. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-V 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 30-8-2010 ------------- ------ 2. DRAFT PLACED BEFORE AUTHORITY 30-8-2010 ----- -------------- 3. DRAFT PROPOSED & PLACED 30-8-2010 ----------- -------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED --------------- ---- --------------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S ---------------- -- ------------------ 6. KEPT FOR PRONOUNCEMENT ON ---------------- --- ----------------- 7. FILE SENT TO THE BENCH CLERK ---------------- -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------