ITO, New Delhi v. Mr Raj Kumar Mujral, New Delhi

ITA 4289/DEL/2009 | 2006-2007
Pronouncement Date: 31-03-2010 | Result: Dismissed

Appeal Details

RSA Number 428920114 RSA 2009
Assessee PAN AHNPM6327L
Bench Delhi
Appeal Number ITA 4289/DEL/2009
Duration Of Justice 4 month(s) 25 day(s)
Appellant ITO, New Delhi
Respondent Mr Raj Kumar Mujral, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 31-03-2010
Date Of Final Hearing 29-03-2010
Next Hearing Date 29-03-2010
Assessment Year 2006-2007
Appeal Filed On 05-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO. 4289/DEL/2009 ASSESSMENT YEAR : 2006-07 INCOME-TAX OFFICER ROOM NO.304-A D BLOCK VIKAS BHAVAN NEW DELHI VS. MR RAJ KUMAR MUJRAL PROP. M/S SHRI KRISHNA FOAM 1364 SUNAHARO WALI GALI NAJAFGARH NEW DELHI-110043 PAN NO. AHNPM6327L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.K. LAL SR. D.R. RESPONDENT BY : SHRI KAPIL GOEL C.A. ORDER PER I.P. BANSAL JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER OF THE CIT(A) DATED 30.6.2009 FOR ASSESSMENT YEAR 2006 -07. 2. GROUND OF APPEAL READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD . CIT(A) ERRED IN CANCELING THE ASSESSMENT ON PROCEDURAL GROUNDS. AS PER THE PROVISIONS OF SECTION 143(2) OF THE I.T. ACT TIME UPTO 31.10.2007 WAS AVAILABLE TO THE A.O. TO SERVE THE SAID NOTICE. 3. THE ASSESSMENT IN THE PRESENT CASE HAS BEEN ANNU LLED BY LD. CIT(A) ON THE GROUND THAT AFTER INSPECTION OF RECORD AND AFTE R CALLING THE CONCERNED ASSESSING OFFICER HE HAS FOUND THAT THOUGH THE NOT ICE U/S 143(2) WAS DATED ITA NO.4289/DEL/09 2 21.7.2007 BUT THE SAME WAS FOR THE FIRST TIME POSTE D ONLY ON 21.8.2007 AS PER SPEED POST BOOKING RECEIPT NO.ED-2225859621N WHICH WAS FOUND TO BE ANNEXED WITH THE SAID NOTICE AND FINDING OF FACT HA S BEEN RECORDED BY LD. CIT(A) THAT ASSESSING OFFICER COULD NOT OFFER ANY COMMENT ON THIS ASPECT. TAKING NOTE OF THESE FACTS AND REFERRING TO THE PROVISIONS OF S ECTION 143(2) LD. CIT(A) HAS OBSERVED THAT NOTICE TO INITIATE ASSESSMENT PROCEED INGS U/S 143(2) COULD ONLY BE ISSUED WITHIN 12 MONTHS FROM THE END OF THE MONTH I N WHICH THE RETURN OF INCOME WAS FILED. HE FOUND THAT RETURN OF INCOME WAS FILE D BY THE ASSESSEE ON 31.7.2006 AND THUS PERMISSIBLE TIME WITHIN WHICH NO TICE COULD BE SERVED ON THE ASSESSEE WAS UPTO 31.7.2007 AND THE NOTICE U/S 143( 2) THOUGH WAS DATED 21.7.2007 WAS FIRST POSTED ONLY ON 21.8.2007 AS PER AFOREMENTIONED SPEED POST BOOKING NUMBER. THE REVENUE IS AGGRIEVED BY SUCH F INDING OF LD. CIT(A) AND HENCE FILED THE ABOVE GROUND OF APPEAL. 4. THE LD. D.R. REFERRING TO THE OBSERVATIONS OF TH E ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT THE FIRST NOTICE U/S 143(2) W AS ISSUED BY THE ASSESSING OFFICER ON 21.7.2007 FOR 9 TH OCT. 2007 WHICH WAS RETURNED BACK UNSERVED WITH POSTAL REMARKS LEFT AND AGAIN THE NOTICE WAS SENT ON NEW ADDRESS ON 21.8.2007. THUS IT WAS PLEADED BY THE LD. D.R. TH AT THE NOTICE WAS ISSUED BY THE ASSESSING OFFICER WITHIN THE PRESCRIBED TIME. FURT HER RELYING ON THE GROUND OF APPEAL HE PLEADED THAT THE TIME AVAILABLE WITH THE REVENUE TO ISSUE SUCH NOTICE WAS UPTO 31.10.2007 BUT HE COULD NOT SUPPORT HIS AR GUMENT BY SHOWING THAT ON WHAT STRENGTH SUCH GROUND OF APPEAL HAS BEEN RAISED . 5. ON THE OTHER HAND IT WAS SUBMITTED BY THE LD. A .R. THAT LD. CIT(A) HAS CALLED THE ASSESSING OFFICER AS WELL AS THE ASSESSM ENT RECORD AND AFTER EXAMINING THE ASSESSMENT RECORD IT HAS BEEN FOUND B Y HIM THAT THE FIRST NOTICE ITA NO.4289/DEL/09 3 AVAILABLE ON RECORD WAS DATED 21.7.2007 WHICH WAS P OSTED ONLY ON 21.8.2007. HE CONTENDED THAT AS PER PROVISO TO SECTION 143(2)( II) NO NOTICE UNDER CLAUSE (II) OF SECTION 143(2) COULD BE SERVED ON ASSESSEE AFTER THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISH ED. HE CONTENDED THAT THE RETURN IN THE PRESENT CASE WAS SUBMITTED BY THE ASS ESSEE ON 31.7.2006 AND THUS THE NOTICE IF ANY UNDER PROVISO TO CLAUSE (II) OF SECTION 143(2) COULD BE ISSUED ONLY UPTO 31.7.2007 AND AS THE FIRST NOTICE WAS SEN T BY POST ONLY ON 21.8.2007 IT WAS TIME-BARRED AND THUS LD. CIT(A) IS RIGHT IN HOL DING THAT ASSESSMENT IS VOID AB INITIO AS NOTICE U/S 143(2) WAS NOT SERVED WITHIN THE PERI OD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN OF INCOME WAS FILE D. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. PROVISO TO SECTION 143(2)(II) AS IT STOOD FOR THE RELEVANT ASSESSMENT YEAR READS AS UNDER:- 143.(2) WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139 OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION(1) OF SECTIO N 142 THE ASSESSING OFFICER SHALL - (I) .. (II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE ( I) IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NOT UNDER-PAID THE TAX IN ANY MANNER SERVE ON THE ASSESSEE A NOTICE REQUIRIN G HIM ON A DATE TO BE SPECIFIED THEREIN EITHER TO ATTEND HIS OFFICE OR TO PRODUCE OR CAUSE TO BE PRODUCED ANY EVIDENCE O N WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN; PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED O N THE ASSESSEE AFTER THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED. THUS AS PER REQUIREMENT OF THE STATUTE THE NOTICE TO INITIATE ASSESSMENT PROCEEDINGS WAS REQUIRED TO BE ISSUED WITHIN 12 MON THS FROM THE END OF THE ITA NO.4289/DEL/09 4 MONTH IN WHICH THE RETURN OF INCOME WAS FILED. IN THE PRESENT CASE RETURN OF INCOME IS FILED ON 31.7.2006. THEREFORE PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FILED EXPIRES ON 31.7. 2007. AFTER EXAMINATION OF THE RECORD AND AFTER CALLING THE EXPLANATION OF THE ASS ESSING OFFICER A FINDING HAS BEEN RECORDED BY THE LD. CIT(A) THAT NOTICE DATED 2 1.7.2007 WAS FIRST POSTED FOR SERVICE ON 21.8.2007 VIDE AFOREMENTIONED SPEED POST BOOKING NUMBER. THUS ATTEMPT TO SERVE THE NOTICE U/S 143(2) FOR THE YEAR UNDER CONSIDERATION WAS MADE BY THE ASSESSING OFFICER ONLY ON 21.8.2007 WHICH IS A DATE BEYOND THE PRESCRIBED STATUTORY PERIOD AND THEREFORE WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) VIDE WHICH THE IMPUGNED ASSESSMENT PROCEEDIN GS HAVE BEEN HELD TO BE VOID AB INITIO ON THE GROUND OF NON-SERVICE OF NOTICE WITHIN THE P RESCRIBED PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FILED. HERE IT MAY BE MENTIONED THAT THE TIME LIMIT AS ST ATED IN THE GROUND OF APPEAL IS NOT FOUND IN THE STATUTE AND DEPARTMENT COULD NOT S UPPORT ITS CONTENTION THAT THE EXPIRY OF TIME FOR SERVING THE NOTICE WAS ON 31 ST OCT. 2007. THEREFORE THERE IS NO FORCE IN SUCH GROUND OF APPEAL BY THE REVENUE. 7. IN VIEW OF AFOREMENTIONED DISCUSSION WE FOUND N O INFIRMITY IN THE ORDER OF THE CIT(A). WE DECLINE TO INTERFERE. 8. IN THE RESULT DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.3.2010 SD/- SD/- ( R.C. SHARMA ) ( I.P. BANSAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31.3.2010 VSK ITA NO.4289/DEL/09 5 COPY TO: 1. ASSESSEE-APPELLANT 2. RESPONDENT-REVENUE 3. CIT (A) 4. CIT 5. DR ITAT NEW DELHI. ASSISTANT REGISTRAR