ITO, UDAIPUR v. Shri Bhuvanesh maheshwari, UDAIPUR

ITA 326/JODH/2013 | 2009-2010
Pronouncement Date: 31-10-2013 | Result: Dismissed

Appeal Details

RSA Number 32623314 RSA 2013
Assessee PAN ABFPM0872N
Bench Jodhpur
Appeal Number ITA 326/JODH/2013
Duration Of Justice 5 month(s) 21 day(s)
Appellant ITO, UDAIPUR
Respondent Shri Bhuvanesh maheshwari, UDAIPUR
Appeal Type Income Tax Appeal
Pronouncement Date 31-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 31-10-2013
Assessment Year 2009-2010
Appeal Filed On 10-05-2013
Judgment Text
IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI N.K. SAINI ACCOUNTANT MEMBER. ITA NO.326/JODH/2013 (A.Y. 2009-10) ITO WARD-1(2) VS. SHRI BHUVANESH MAHESHWARI UDAIPUR. PROP. M/S. B. MAHESHWARI & CO. OPPOSITE SURAJPOLE UDAIPUR. PAN NO. ABFPM 0872 N (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE. DEPARTMENT BY : SHRI R.H. GOHEL- D.R. DATE OF HEARING : 31/10/2013. DATE OF PRONOUNCEMENT : 31/10/2013. O R D E R PER N.K.SAINI A.M THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE OR DER DATED 05/03/2013 OF LD. CIT (A) UDAIPUR. DURING THE COU RSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NOR ADJOURNME NT WAS SOUGHT. WE THEREFORE PROCEEDED EXPARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED D.R. AND THE APPEAL IS DISPOSED OFF ON MERIT. THE ONLY EFFECTIVE GROUND RAISED IN THIS APPEAL READS AS UNDER:- 2 1. ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES O F THE CASE THE LEARNED CIT(A) HAS EARNED IN QUASHING THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT DESPITE THE FACT THAT NOTICE U/S. 143(2) OF THE I.T. ACT WAS DULY SERVED UPON THE ASSESSEE BY WAY OF PERSONA L SERVICE AND THROUGH REGISTERED POST DESPITE THE FACT THAT ANOTH ER NOTICE WAS ALSO SENT WITHIN THE PRESCRIBED TIME WHICH HAS BEEN TOT ALLY IGNORED. 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE F ILED HIS RETURN OF INCOME BELATEDLY ON 26/03/2010 SHOWING TAXABLE INCO ME OF RS. 6 03 414/- WHICH WAS PROCESSED UNDER SECTION 143(1 ) OF THE I.T. ACT 1961 (HEREINAFTER REFERRED TO AS ACT FOR SHORT ON 05/04/2010. SINCE IT WAS SURVEY CASE SO IT WAS SELECTED FOR SCRUTINY . THE ASSESSING OFFICER OBSERVED THAT NOTICE UNDER SECTION 143(2) OF THE AC T WAS ISSUED TO THE ASSESSEE ON 23/09/2010 AND THEREAFTER ALSO OTHER N OTICES WERE ISSUED UNDER SECTION 143(2) OF THE ACT. THE ASSESSEE STAT ED THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT DATED 23/09/2010 HA S NOT BEEN RECEIVED BY HIM. THE ASSESSING OFFICER HOWEVER FRAMED THE ASSESSMENT BY INVOKING THE PROVISIONS OF SECTION 144 OF THE ACT B Y OBSERVING THAT THE ASSESSEE FOR THE REASONS BEST KNOWN TO HIM HAD NOT COMPLIED WITH THE TERMS OF THE NOTICES. ULTIMATELY THE ASSESSMENT W AS FRAMED AT AN INCOME OF RS. 42 38 457/- BY MAKING THE VARIOUS ADD ITIONS. 3. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER T O THE LEARNED CIT(A) AND STATED THAT THE ASSESSMENT ORDER PASSED WAS WITHOUT JURISDICTION SO LIABLE TO BE QUASHED BEING BARRED BY LIMITATION AS THE 3 NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT ISSU ED AND SERVED WITHIN THE TIME ALLOWED. THE ASSESSING OFFICER OBJECTED T HE SUBMISSIONS OF THE ASSESSEE THAT THE ORDER PASSED UNDER SECTION 144 OF THE ACT WAS LIABLE TO BE QUASHED AND ALSO OBJECTED TO ADMISSION OF THE AD DITIONAL EVIDENCES UNDER RULE 46A OF THE ACT. THE LEARNED CIT(A) POINTED OUT THAT AS PER THE ASS ESSING OFFICER THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERV ED ON THE ASSESSEE ON 24/09/2010 THROUGH NOTICE SERVER AND THE SAID NOTIC E WAS RECEIVED ON BEHALF OF THE ASSESSEE BY ONE SHRI BHERULAL. LEARN ED CIT(A) DISCUSSED THE EVENTS RELATING TO THE ISSUANCE AND SERVICE OF NOTI CES UNDER SECTION 143(2) OF THE ACT AS STATED BY THE ASSESSING OFFICER AS UN DER:- DT. OF ISSUE OF NOTICE DATE OF SERVICE DATE OF HEARING SERVED ON REMARKS 03/03/2011 04/03/2011 16/03/2011 SH. BHERULAL NONE ATTENDED 06/06/2011 08/06/2011 15/06/2011 PERSON NOT IDENTIFIED NONE ATTENDED 12/07/2011 14/07/2011 26/07/2011 SH. BHERULAL NONE ATTENDED 23/09/2011 28/09/2011 05/01/2011 PERSON NOT IDENTIFIED NONE ATTENDED 07/10/2011 11/10/2011 18/10/2011 PERSON NOT IDENTIFIED NONE ATTENDED 18/11/2011 24/11/2011 25/01/2011 PERSON NOT IDENTIFIED ADJOURNMENT APPLICATION FILED 4 4. THE ASSESSEE STATED TO THE LEARNED CIT(A) THAT NO NOTICE WAS SERVED UPON HIM. THE ASSESSEE FURNISHED AN AFFIDAV IT OF SHRI BHERULAL TO WHOM NOTICE WAS CLAIMED TO HAVE BEEN SERVED. IN TH E SAID AFFIDAVIT SHRI BHERULAL STATED ON OATH THAT HE WAS NOT IN SERVICE WITH THE ASSESSEE AFTER 12/11/2008 AND WAS NOT IN TOUCH WITH THE ASSESSEE A ND NEVER HAD VISITED BUSINESS PLACE AFTER LEAVING THE SERVICES AND THAT HE HAD NOT RECEIVED ANY NOTICE FROM ANY GOVERNMENT DEPARTMENT IN HIS NAME O R IN THE NAME OF THE ASSESSEE. THE ASSESSEE PRAYED TO THE LEARNED C IT(A) THAT THE ASSESSMENT ORDER PASSED WITHOUT SERVING NOTICE UNDE R SECTION 143(2) OF THE ACT MAY BE QUASHED AND HELD INVALID. RELIANCE WAS PLACED ON THE FOLLOWING CASE-LAWS:- 1. HIND BOOK HOUSE VS. ITO 93 TTJ 0224 (DEL. TRB.) 2. CIT VS. THAYABALI MULLA JEEVAJI KAPASI [1976] 6 6 ITR 147. (SC) 3. R.L. NARANG VS. CIT 136 ITR 108(DEL.) 4. SPRINGER VERLAG GMBH VS. DY. DIRECTOR OF INCOME TAX 97 TTJ 0269 (DEL. TRB.) 5. LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS O F THE ASSESSEE OBSERVED THAT AS PER THE PROVISIONS OF SECTION 143( 2) OF THE ACT THE ASSESSING OFFICER SHOULD HAVE SERVED STATUTORY NOTI CE UNDER SECTION 143(2) OF THE ACT ON OR BEFORE 30/09/2010 AS RETURN OF INC OME WAS FILED BY THE ASSESSEE ON 6/03/2010. HE FURTHER OBSERVED THAT TH E ASSESSING OFFICER 5 HAD NOT CONTROVERTED THE AFFIDAVIT OF SHRI BHERULAL FILED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS WHICH W AS SENT TO THE ASSESSING OFFICER FOR HIS COMMENTS. HE THEREFORE HELD THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED ALONG WI TH QUESTIONNAIRE TO THE ASSESSEE ON 18/11/2011 WHICH WAS BARRED BY LIM ITATION PRESCRIBED UNDER THE PROVISIONS OF SECTION 143(2) OF THE ACT. ACCORDINGLY THE ASSESSMENT COMPLETED ON THE BASIS OF INVALID NOTIC E UNDER SECTION 143(2) OF THE ACT WAS QUASHED. NOW THE DEPARTMENT IS IN APPEAL. 6 . AT THE TIME OF HEARING NOBODY WAS PRESENT ON BE HALF OF ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT. WE THEREFORE PROCEEDED EXPARTE QUA THE ASSESSEE AND HAVE CONSIDERED THE SUBMISSION S OF LEARNED D.R. ALONG WITH MATERIAL AVAILABLE ON RECORD. 7. THE ONLY CONTENTION OF THE LEARNED D.R. WAS THAT SINCE ASSESSEE PARTICIPATED IN THE ASSESSMENT PROCEEDINGS THEREFO RE AS PER THE PROVISIONS OF SECTION 292BB OF THE ACT IT WAS TO B E PRESUMED THAT THE STATUTORY NOTICE WAS RECEIVED BY THE ASSESSEE AND THEREFORE LEARNED CIT(A) WAS NOT JUSTIFIED IN QUASHING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE IT IS 6 AN ADMITTED FACT THAT THE ASSESSING OFFICER CLAIMED TO HAVE SERVED THE NOTICE UNDER SECTION 143(2) OF THE ACT TO ONE SHRI BHERULAL ON 24/09/2010 FIXING THE DATE OF HEARING FOR 07/10/2010. ON THE CONTRARY SHRI BHERULAL IN HIS AFFIDAVIT STATED THAT HE WAS NOT IN TOUCH WI TH THE ASSESSEE AND HAD ALSO NOT RECEIVED ANY NOTICE AFTER LEAVING THE SERV ICES ON 12/11/2008. THE CONTENTS OF THE AFFIDAVIT WERE NOT CONTROVERTED BY THE ASSESSING OFFICER. THE NOTICE UNDER SECTION 143(2) OF THE AC T IN THIS CASE WAS TO BE SERVED ON THE ASSESSEE BEFORE 30/09/2010 WHEREAS NO TICE DATED 07/10/2010 WAS RECEIVED BY THE ASSESSEE FIRST TIME ON 11/10/2010 I.E. AFTER THE STATUTORY TIME LIMIT PRESCRIBED UNDER SEC TION 143(2) OF THE ACT FOR SERVICE OF NOTICE. ON A SIMILAR ISSUE THE HON 'BLE APEX COURT IN THE CASE OF ACIT & ANOTHER VS. HOTEL BLUE MOON (2010) 321 ITR 3 62 HAS HELD AS UNDER:- SECTION 158BC PROVIDES FOR ENQUIRY AND ASSESSMENT. AFTER THE RETURN IS FILED CLAUSE (B) OF SECTION 158BC PROVIDES THAT TH E ASSESSING OFFICER SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME O F THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECTION 158BB AND THE P ROVISIONS OF SECTION 142 SUB-SECTIONS (2) AND (3) OF SECTION 14 3 SECTION 144 AND SECTION145 SHALL SO FAR AS MAY BE APPLY. THIS I NDICATES THAT THIS CLAUSE ENABLES THE ASSESSING OFFICER AFTER THE RET URN IS FILED TO COMPLETE THE ASSESSMENT UNDER SECTION 143(2) BY FOL LOWING THE PROCEDURE LIKE ISSUE OF NOTICE UNDER SECTION 143(2) /142. THIS DOES NOT PROVIDE ACCEPTING THE RETURN AS PROVIDED UNDER SECT ION 143(3) ONLY. IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECTION 143( 3) READ WITH SECTION 158BC NOTICE UNDER SECTION 143(2) SHOULD B E ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF THE BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTI ON 143(2) CANNOT BE 7 A PROCEDURAL IRREGULARITY AND IS NOT CURABLE. THERE FORE THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH. 9. FROM THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASE IT IS CRYSTAL CLEAR THAT THE OMISSION ON THE PART OF ASSE SSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT CANNOT BE PR OCEDURAL IRREGULARITY AND IS NOT CURABLE. THEREFORE REQUIREMENT OF NOTI CE UNDER SECTION 143(2) OF THE ACT CANNOT BE DISPENSED WITH. IN THE PRESENT CASE SINCE THE ASSESSING OFFICER FAILED TO SERVE THE NOTICE UN DER SECTION 143(2) OF THE ACT TO THE ASSESSEE WITHIN THE STIPULATED TIME LIMIT PRESCRIBED THEREFORE LEARNED CIT(A) RIGHTLY QUASHED THE ASSES SMENT FRAMED BY THE ASSESSING OFFICER ON THE BASIS OF INVALID NOTICE UN DER SECTION 143(2) OF THE ACT. WE DO NOT SEE ANY MERIT IN THIS DEPARTMENTAL APPEAL. 10. IN THE RESULT APPEAL IS DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 31 ST OCTOBER 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31 ST OCTOBER 2013. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR ITAT JODHPUR.