SAURABH BANKIMCHANDRA DANI, MUMBAI v. DCIT 4(1), MUMBAI

ITA 339/MUM/2016 | 2009-2010
Pronouncement Date: 07-10-2016

Appeal Details

RSA Number 33919914 RSA 2016
Assessee PAN AACPD8834B
Bench Mumbai
Appeal Number ITA 339/MUM/2016
Duration Of Justice 8 month(s) 17 day(s)
Appellant SAURABH BANKIMCHANDRA DANI, MUMBAI
Respondent DCIT 4(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 07-10-2016
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 07-10-2016
Assessment Year 2009-2010
Appeal Filed On 21-01-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH MUMBAI BEFORE: SHRI R.C.SHARMA AM & SHRI PAWAN SINGH JM ITA NO. 339/MUM/2016 ( ASSESSMENT YEAR : 200 9 - 20 10 ) SHRI SAURABH BANKIMCHANDRA DANI 6 TH FLOOR VASUDHA APARTMENT SADANAND HUFHU MARG WORL I MUMBAI 400025 VS. DCIT 4 ( 1 ) MUMBAI PAN/GIR NO. : AA CPD8834B ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI BHARATH JANARTHANAN REVENUE BY : MISS KUSUM BANSAL DATE OF HEARING : 04/10 /2016 DATE OF PRON OUNCEMENT 07 / 10 /2016 / O R D E R PER R.C.SHARMA (A.M) : THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) FOR THE ASSESSMENT YEAR 2009 - 2010 IN THE MATTER OF ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE I.T. ACT. 2. IN THIS APPEAL ASSESSEE IS AGGRIEVED FOR THE ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 ON THE PLEA THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED NOR THE REASONS RECORDED FOR REOPENING WERE SUPPLIED TO THE ASSESSEE. 3. IT WAS ARGUED BY LE ARNED AR THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED. OUR ATTENTION WAS INVITED TO THE REMAND REPORT CALLED BY CIT(A) DURING APPELLATE PROCEEDINGS WHEREIN AO HAS CLEARLY ACCEPTED THAT NO NOTICE UNDER SECTION 143(2) WAS ISSUED. RELIANCE WAS PLACED ON TH E DECISION OF THE DELHI HIGH COURT 2 ITA NO. 339/M/2016 SAURABH BANKIMCHANDRA DANI IN THE CASE OF JAI SHIV SHANKAR TRADERS PVT. LTD. 383 ITR 448 BANGALORE HIGH COURT IN THE CASE OF ASHED PROPERTIES & INVESTMENTS (P) LTD. 62 TAXMANN.COM 340 AND ON THE DECISION OF CHANDIGARH TRIBUNAL IN CASE OF SAN JEEV AGGARWAL 159 ITD 302 IN SUPPORT OF PROPOSITION THAT ASSESSMENT FRAMED WITHOUT ISSUE OF NOTICE UNDER SECTION 143(2) IS NULL AND VOID. IT WAS ALSO CONTENTION OF LEARNED A.R THAT REASONS RECORDED FOR REOPENING WAS ALSO NOT SUPPLIED TO ASSESSEE INSPITE OF SPE CIFIC REQUEST MADE BY ASSESSEE. 4. ON THE OTHER HAND LEARNED DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 5. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS REMAND REPORT ISSUED BY THE AO WHEREIN AO HAS CLEARLY ACCEPTED THE FACT THAT NO NOTICE UNDER SECTION 143( 2 ) WAS ISSUED HOWEVER HE SUPPORTED THE ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 BY OBSERVING THAT ASSESSEE HAS NOT OBJECTED THE SAME DURING THE COURSE OF ASSESSMENT PROCEEDINGS . T HE FAILURE BY THE AO TO ISSUE NOTICE UNDER SECTION 143(2) IS FATAL T O THE ORDER OF THE REASSESSMENT AS PER VERDICT OF HONBLE DELHI HIGH COURT IN THE CASE OF JAI SHIV SHANKAR TRADERS (SUPRA) HONBLE CHANDIGARH HIGH COURT IN CASE OF SANJEEV AGGARWAL FURTHER CLARIFIED THE POSITION WITH REGARD TO INTRODUCTION OF PROVISIONS UNDER SECTION 292BB AND THE ASSESSMENT FRAMED WITHOUT ISSUE OF 143(2) NOTICE AND OBSERVED AS UNDER: - FROM THE BARE PERUSAL OF THE ABOVE SECTION WE SEE THAT A DEEMING FICTIO N HAS BEEN CREATED BY THIS SECTION. IN CASE AN ASSESSEE COOPERATES DURING THE ASSESSMENT EVEN IF NO NOTICE HAS BEEN SERVED ON HIM IT IS DEEMED TO BE SERVED UPON HIM IN TIME AS PER THE PROVISIONS OF THE ACT. THE PROVISIONS OF THIS 3 ITA NO. 339/M/2016 SAURABH BANKIMCHANDRA DANI SECTION IS DEEMED TO BE SERVED UPON HIM IN TIME AS PER THE PROVISIONS OF THE ACT. THE PROVISIONS OF THIS SECTION CLEARLY LAID DOWN THE CIRCUMSTANCES UNDER WHICH THE DEEMING FICTION HAS TO COME INTO FORCE. THESE CONDITIONS HAVE BEEN STATED TO BE AS (A) (B) AND (C) WHICH TALKS AB OUT THE SITUATION WHERE THE NOTICE WAS NOT SERVED UPON THE ASSESSEE OR NOT SERVED UPON HIM IN TIME OR SERVED UPON HIM IN AN IMPROPER MANNER RESPECTIVELY. THEREFORE WE SEE THAT SECTION TALKS ABOUT ONLY THE SITUATION WHERE THE ASSESSEE RAISES THE ISSUE OF N ON - SERVICE OF A NOTICE AND STILL COOPERATES WITH THE DEPARTMENT. OTHERWISE ALSO WE ARE OF THE OPINION THAT ISSUANCE OF STATUTORY NOTICE CANNOT BE DISPENSED WITH BY THE COOPERATION OF THE ASSESSEE. SINCE THIS NOTICE FORMS THE BASIS FOR ASSESSING OFFICER TO ASSUME JURISDICTION UNDER RESPECTIVE SECTIONS. RELIANCE PLACED BY THE LEARNED COUNSEL FOR THE ASSESSEE ON THE JUDGMENT OF THE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CEBON INDIA LTD (SUPRA) IS NOT OUT OF PLACE WHEREBY IT HAS BEEN VERY CATEGORICALLY HE LD THAT ABSENCE OF A STATUTORY NOTICE CANNOT BE HELD TO BE CURABLE UNDER SECTION 292BB OF THE ACT. 6. IN VIEW OF THE ABOVE DISCUSSION RESPECTFULLY FOLLOWING THE DECISION OF DELHI HIGH COURT AS WELL AS CO - ORDINATE BENCH AS REFERRED ABOVE WE DO NOT FIND ANY MERIT IN THE RE - ASSESSMENT ORDER PASSED U/S 143(3) READ WITH SECTION 147 FRAMED WITHOUT ISSUE OF 143(2) NOTICE. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 / 10 / 2016. SD/ - ( PAWAN SINGH ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 07/10 /2016 KARUNA SR. PS / COPY OF THE ORDER FORWARDED TO : 4 ITA NO. 339/M/2016 SAURABH BANKIMCHANDRA DANI / BY ORDER / ( ASSTT. REGISTRAR) / ITAT MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) MUMBAI. 4. / CIT 5. / DR ITAT MUMBAI 6. / GUARD FILE. //TRUE COPY//