Shri Mohd. Iqbal Butt, Jammu & Kashmir v. Income-tax Officer, UDHAMPUR

ITA 156/ASR/2015 | 2007-2008
Pronouncement Date: 30-11-2017 | Result: Allowed

Appeal Details

RSA Number 15620914 RSA 2015
Assessee PAN PATEL1987A
Bench Amritsar
Appeal Number ITA 156/ASR/2015
Duration Of Justice 2 year(s) 8 month(s) 7 day(s)
Appellant Shri Mohd. Iqbal Butt, Jammu & Kashmir
Respondent Income-tax Officer, UDHAMPUR
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-11-2017
Last Hearing Date 25-10-2017
First Hearing Date 25-10-2017
Assessment Year 2007-2008
Appeal Filed On 23-03-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T.S. KAPOOR ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY JUDICIAL MEMBER I.T.A NO.156(ASR)/2015 ASSESSMENT YEAR:200 7-08 SH. MOHD. IQBAL BUTT S/O MOHD. ABDULLAH BUTT R/O MANDOLE KASTIGARH DODA (J&K). PAN:AAGPI-9074C VS. 1-CIT(APPEAL) JAMMU. 2-ITO UDHAMPUR (J&K). (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARUN BANSAL (LD. ADV. ) RESPONDENT BY: SH. S.S.KANWAL (LD. D.R) DATE OF HEARING: 25.10.2017 DATE OF PRONOUNCEMENT:30.11.201 7 ORDER PER N.K.CHOUDHRY: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE A SSESSEE ON FEELING AGGRIEVED AGAINST THE ORDER DATED 21.01.201 5 PASSED BY THE LD. CIT(A)- JAMMU IN APPEAL NO.233/13-14 FOR A. Y .:2007-08. 2. THE ASSESSEE HAS RAISED THE FOLLOWING AMENDED GROUND S OF APPEAL WHICH ARE REPRODUCED HEREIN BELOW. 1. THAT THE ID AO HAS ERRED IN LAW BY NOT REJE CTING THE AUDITED BOOKS OF ACCOUNTS AND AUDIT REPORT BEFORE CONFIRMIN G THE ADDITION. 2. THAT ADDITION AT SERIAL NO. (II) TO (V) (PAGE-9) AMOUNTING TO RS.5 28 648 MADE BY A.O IS TOTALLY BASED ON ASSUMPT IONS SURMISES CONJECTURES AND IS BAD-IN-LAW AND FURTHE R THE A.O HAS NOT SEEN EXPEDIENCY FROM POINT OF BUSINESS. 3. THAT THE ID A.O HAS WRONGLY CALCULATED TOTAL OF ADDITIONS AT RS.26 62 196 INSTEAD OF AT RS.24 06 122 AND MADE EX CESS ADDITION OF RS.2 56 074. ITA NO.156 (ASR)/2015 ASST. YEAR:200 7-08 2 4. THAT THE ID. A.O HAS WRONGLY CALCULATED TOTAL OF TD S AT RS.49 686 INSTEAD OF AT RS.1.58 802 AND GAVE LESS RELIEF BY RS.1 09 116. 5. THAT THE ID AO HAS WRONGLY CALCULATED THE TOTAL CO NTRACT RECEIPTS OF TWO FORMS-16A AT RS.72 65 012 INSTEAD OF AT RS.6 6 56 237 (5387538 + 1268699) AND MADE EXCESS ADDITION BY RS. 6 08 775. 6. THAT THE ID AO WRONGLY CALCULATED CONTRACT RECEIPTS AT RS.18 77 474 AND MADE 100% ADDITION AT RS.18 77 474 WITHOUT ALLOWING ANY EXPENDITURE OUT OF IT IGNORING FACTS AND CIRCUMSTANCES CIRCUMSTANTIAL EVIDENCE EXPEDIENCY AND LAW AND FURTHER IGNORING THAT THE ACTUAL FIGURE IS AT RS.12 68 699 (AS PER FORM-16A). 7. THAT THE ORDER OF A.O IS BAD-IN-LAW AS WELL AS ON FACTS. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: IN THE INSTANT CASE RETURN OF INCOME DECLARING THE TA XABLE INCOME OF RS.3 29 036/-HAS BEEN FILED BY THE ASSESSEE ON 29.10.2008 FOR THE ASST. YEAR: 2007-08 WHICH WAS PROCESSE D U/S 143(1) AND REFUND EXCEEDING RS.1 LAC AS CLAIMED BY THE ASSESSEE WAS GRANTED HOWEVER DURING THE COURSE OF AUDIT IT W AS FOUND THAT THE ASSESSEE HAS SHOWN GROSS CONTRACT RECEIPTS AT RS.53 87 538/ - WHEREAS ON THE BASIS OF THE TWO F.NO.16A(TDS CERTIFICA TES) ATTACHED WITH THE RETURN FILED-ONE FROM EX. EN. PWD SPL. DIV ISION DODA AND ANOTHER FROM XEN J&K POLICE HOUSING CORPORATION JAMM U THE ACTUAL CONTRACT RECEIPTS WORKED OUT TO RS.6 65 56 237/- A ND TDS IN RESPECT OF THE BOTH THE CERTIFICATE WAS CLAIMED IN THE RE TURN. THEREAFTER NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE AND SUBSEQUENTLY VARIOUS STATUTORY NOTICES HAVE BEEN ISSUED ON EIGHT OCCASIONS HOWEVER THE ASSESSEE FAILED TO APPEAR AND IN TH E CONSTRAINED CIRCUMSTANCES THE ASSESSING OFFICER FRAMED THE ASSESSMENT ORDER U/S 144 OF THE I.T. ACT AS EX-PARTE TO TH E BEST OF HIS JUDGMENT AND MADE ADDITION OF RS.26 62 196/- ON D IFFERENT HEADS. ITA NO.156 (ASR)/2015 ASST. YEAR:200 7-08 3 4. THE ASSESSEE CHALLENGED THE SAID ASSESSMENT ORDER BEFORE THE LD. CIT(A) MAINLY ON THE GROUND THAT NO NOTICE WAS SER VED UPON THE ASSESSEE ON DATED 10.09.2012. THE LD. CIT(A) IN ORDER TO GIVE PROPER OPPORTUNITIES OF BEING HEARD BY ISSUING THE NOT ICES FIXED THE DATES FOR PROCEEDINGS ON EIGHT OCCASIONS HOWEVER EXCEPT O N TWO OCCASIONS THE ASSESSEE DID NOT JOIN THE APPELLATE PROCEED INGS AND ALSO NOT FILED ANY EVIDENCE IN SUPPORT OF HIS CASE THERE FORE THE LD. CIT(A) WHILE FULLY SATISFYING HIMSELF FOR OFFERING EN OUGH OPPORTUNITIES OF BEING HEARD AS GIVEN TO THE ASSESSEE CAME TO THE CONCLUSI ON THAT IT APPEARS THAT THE ASSESSEE/ APPELLANT IS NOT INTERESTED IN PURSUING THE APPEAL AND IN THE CONSTRAINED CIRCUMSTANCES CONFIRMED T HE ADDITION MADE BY THE ASSESSING OFFICER ON MERITS WHILE D ISMISSING THE APPEAL OF THE ASSESSEE. 5. THE ASSESSEE PREFERRED THE INSTANT APPEAL BY FEELI NG AGGRIEVED AGAINST THE ORDER PASSED BY THE CIT(A) ON THE GROUNDS MENTIONED IN PARA NO.2 OF THE ORDER. DURING THE COURSE OF HEARING THE LD. AR SH. TARUN BANSAL (ADVOCATE) IN ADDITION TO THE AFORESAID G ROUNDS ALSO RAISED THE ISSUE THAT IN THE INSTANT CASE NOTICE WAS SENT BY SPEED POST ON 31 ST MARCH 2012 FROM UDHAMPUR TO DODA WHICH WAS NOT SERVED WITHIN THE TIME AS IT IS QUITE FAR FROM EACH OT HER AND NOT A LOCAL POST THEREFORE THE A.O WAS BARRED BY THE JURISD ICTION AND NOTICE WAS VOID AB INITIO AND ACCORDING TO THE SEC.148 T HE NOTICE IS TO BE SERVED BUT NOT TO BE ISSUED WITHIN FOUR YEARS AN D IN SUPPORT OF ITS CASE MAINLY RELIED UPON THE JUDGMENT PASSED BY THE G UJRAT HIGH COURT IN THE CASE OF SHAMBAI PATEL VS. ITO (1974) 196 ITR 141(GUJ. HIGH COURT). 6. ON THE CONTRARY THE LD. DR DRAWN OUR ATTENTION TO THE JUDGMENT PASSED BY THE HONBLE APEX COURT IN THE CASE O F R.K. UPADHYAYA VS. SHANABHAI P. PATEL 1987 AIR 1378 AND SUBMITTED THAT ITA NO.156 (ASR)/2015 ASST. YEAR:200 7-08 4 THE CONTROVERSY QUA SERVICE OF NOTICE AND/OR ISSUE OF NOT ICE HAS ALREADY BEEN SENT AT REST BY THE HONBLE APEX COURT. A S THE HONBLE APEX COURT LAID DOWN THE RATIO THAT THE MANDATE OF SEC. 148(1) IS THAT THE REQUIREMENT OF ISSUE OF NOTICE IS SATISFIED WH EN A NOTICE IS ACTUALLY ISSUED. WE HAVE GIVEN OUR THOUGHTFUL PARAMOUNT CONSIDERATION TO THE ISSUE RAISED BY THE LD. AR AS WE REALIZED THAT THE ISSUE UNDER HANDS IS LEGAL ISSUE AND CERTAINLY HAVING EFFECT ON THE MERIT OF THE CASE HENCE ALLOWED TO BE RAISED. 7. WE HAVE GONE THROUGH WITH ORDER PASSED BY THE APE X COURT IN THE CASE OF R.K. UPADHYAYA VS. SHANABHAI P. PATEL (SU PRA) IN WHICH THE HONBLE APEX COURT HAS DRAWN THE DISTINCTION BETW EEN ISSUE OF NOTICE AND SERVICE OF NOTICE. WE FEEL IT APPROPRIATE TO REPRODUCE THE INGREDIENTS OF SEC.149 RELEVANT TO THE ISSUE OF NOTICE U/S 148. SEC.149. [(1) NO NOTICE UNDER SECTION 148 SHALL BE ISSUED F OR THE RELEVANT ASSESSMENT YEAR - (A) IN A CASE WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR SECTION 147 HAS BEEN MADE FOR SUCH ASSESSMEN T YEAR.- (I) IF FOUR YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE CASE FALLS UNDER SUB-CLAUSE (II) O R SUB-CLAUSE (TIT); (IT) IF FOUR YEARS BUT NOT MORE THAN SEVEN YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOU NTS TO OR IS LIKELY TO AMOUNT TO RUPEES FIFTY THOUSAND OR MORE F OR THAT YEAR; (III) IF SEVEN YEARS BUT NOT MORE THAN TEN YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCOME CHARGE- ABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS LIKELY TO AMOUNT TO 63 [* * *] RUPEES ONE LAKH OR MORE FOR THAT YEAR ; (B) IN ANY OTHER CASE (I) IF FOUR YEARS HAVE ELAPSED FROM THE END OF THE REL EVANT ASSESSMENT YEAR UNLESS THE CASE FALLS UNDER SUB-CL AUSE (IT) OR SUB- CLAUSE (III); (II) IF FOUR YEARS BUT NOT MORE THAN SEVEN YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS L IKELY TO AMOUNT TO RUPEES TWENTY-FIVE THOUSAND OR MORE FOR THAT YEAR; ITA NO.156 (ASR)/2015 ASST. YEAR:200 7-08 5 (III) IF SEVEN YEARS BUT NOT MORE THAN TEN YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS L IKELY TO AMOUNT TO RUPEES FIFTY THOUSAND OR MORE FOR THAT YEAR. EXPLANATION. IN DETERMINING INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT FOR THE PURPOSES OF THIS SUB-SECTION TH E PROVISIONS OF EXPLANATION 2 OF SECTION 147 SHALL APPLY AS THEY AP PLY FOR THE PURPOSES OF THAT SECTION.] 2. THE PROVISIONS OF SUB-SECTION (1) AS TO THE ISSUE O F NOTICE SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 151. 3. IF THE PERSON ON WHOM A NOTICE UNDER SECTION 148 IS TO BE SERVED IS A PERSON TREATED AS THE AGENT OF A NON-RESIDENT UNDER SECTION 163 AND THE ASSESSMENT REASSESSMENT OR RECOMPUTATION TO BE MADE IN PURSUANCE OF THE NOTICE IS TO BE MADE ON HIM AS THE AGENT OF SUCH NON-RESIDENT THE NOTICE SHALL NOT BE ISSUED AFTER THE EXPIRY OF A PERIOD OF TWO YEARS FROM THE END OF THE RELEVANT ASSESSMEN T YEAR. FROM THE SIMPLE MEANING OF THE SEC.149 IT APPEARS TH AT NO NOTICE U/S 148 SHALL BE ISSUED FOR THE RELEVANT ASSESSMENT Y EAR IF FOUR YEARS OR SIX YEARS OR SIXTEEN YEARS HAVE BEEN ELAPSE D AS APPLICABLE THERETO FROM THE END OF THE RELEVANT ASSESSME NT YEARS IN APPROPRIATE CASES. IT IS CLEAR THAT MANDATE OF SEC.149 IS ONLY TO ISSUE TH E NOTICE BUT NOT TO BE SERVED THEREFORE WHILE FOLLOWING THE JUDGMENT MENTIONED ABOVE RENDERED BY THE HONBLE APEX COURT A ND CONSIDERING THE INGREDIENTS OF SEC. 149 OF THE I.T. ACT WE DO NOT HAVE ANY HESITATION TO HOLD THAT THE REVENUE AUTHORI TIES ARE SUPPOSED TO ISSUE NOTICE U/S 148 WITHIN THE PRESCRIBED LI MIT AND IT IS NOT MANDATORY THAT SERVICE OF THE NOTICE HAS TO BE EFFE CTED ACTUALLY BEFORE THE PRESCRIBED PERIOD OF LIMITATION. HENCE THE LEGAL ISSUES RAISED BY THE LD. AR HAVING NO ESSENCE AND STAND DISMISSED. NOW LET US TO DEAL WITH THE CASE ON MERITS AS ALTERNA TIVELY LD. AR PRAYED FOR DISPOSAL OF THE APPEAL ON MERIT. ITA NO.156 (ASR)/2015 ASST. YEAR:200 7-08 6 WE HAVE AGAIN GONE THROUGH WITH THE ORDER PASSED BY THE AUTHORITIES BELOW AND REALIZED THAT ASSESSING OFFICER HAD ISSUED STATUTORY NOTICES ON 8 OCCASIONS BY FIXING THE DATE OF PRO CEEDINGS HOWEVER REASON BEST KNOWN TO THE ASSESSEE HE DID NOT J OIN THE SAME AND THEREAFTER THE ASSESSEE FILED THE APPEAL BEFOR E THE LD. CIT(A) IN THE APPELLATE PROCEEDING AS WELL EVEN AFTE R RECEIVING EIGHT NOTICES THE APPELLANT DID NOT BOTHER TO JOIN THE PR OCEEDINGS AND ALSO FAILED TO FILE ANY MATERIAL IN SUPPORT OF HIS CASE. WHILE CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF T HE CASE AS WE REALIZED FROM THE ORDER PASSED BY THE LD. CI T(A) THAT ALTHOUGH HE HAS OFFERED NINE OPPORTUNITIES OF BEING H EARD TO THE APPELLANT HOWEVER NOT PASSED THE ORDER UNDER CHALLEN GE ON MERIT. THEREFORE KEEPING IN VIEW THE INTEREST OF JUSTICE A ND RULE OF AUDI ALTERAM PARTEM WE SET ASIDE THE ISSUES EXCEPT THE LEGAL ISSUE QUA ISSUE OF NOTICE WHICH HAS ALREADY DECIDED BY THIS BENCH TO THE FILE OF LD. CIT(A) TO DECIDE AFRESH ON MERITS. THE APPEAL FILE D BY THE ASSESSEE IS REMANDED TO THE FILE OF THE LD. CIT(A) FOR D ECIDING AFRESH IN VIEW OF THE OBSERVATIONS MADE IN THE INSTANT ORDER. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:30.11.2017. /PK/ PS. ITA NO.156 (ASR)/2015 ASST. YEAR:200 7-08 7 COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A) (4) THE CIT (5) THE SR DR I.T.A.T. TRUE COPY BY ORDER