Shri Chaturbhai Joitaram Patel, Surat v. The Income tax Officer,Ward-2(1),, Surat

ITA 43/AHD/2013 | 2007-2008
Pronouncement Date: 31-07-2015 | Result: Allowed

Appeal Details

RSA Number 4320514 RSA 2013
Assessee PAN AHTPP0572G
Bench Ahmedabad
Appeal Number ITA 43/AHD/2013
Duration Of Justice 2 year(s) 6 month(s) 27 day(s)
Appellant Shri Chaturbhai Joitaram Patel, Surat
Respondent The Income tax Officer,Ward-2(1),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 31-07-2015
Date Of Final Hearing 27-07-2015
Next Hearing Date 27-07-2015
Assessment Year 2007-2008
Appeal Filed On 04-01-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD BEFORE SHRI G.D. AGRAWAL VICE PRESIDENT AND SHRI KUL BHARAT JUDICIAL MEMBER ./ ././ ./ ITA NOS. 39 TO 43/AHD/2013 / ASSESSMENT YEAR: 2003-04 TO 2007-08 SHRI CHATURBHAI JOITARAM PATEL PROP. M/S JAY AMBE WEAVES 26 SOLAPUR COMPOUND NR. ADARSH CHEMICALS UDHNA SURAT PAN : AHTPP 0572 G V/S. ITO WARD 2 (1) SURAT / // / (APPELLANT) / // / (RESPONDENT) ASSESSEE(S) BY : SHRI MEHUL SHAH AR REVENUE BY : SHRI NARENDRA SINGH SR. DR !' # $%&/ // / DATE OF HEARING : 27/07/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 31/07/2015 )* )* )* )*/ // / O R D E R PER BENCH : THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST FIVE SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -II SURAT ALL DATED 23.10.2012 FOR ASSESSMENT YEARS 2003-04 2004-05 2005-06 2006-07 AND 2007-08. SINCE THESE APPEALS INVOLVE COMMON ISSUES THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLID ATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 39/AHD/2013 ASSESSEES APPEAL FOR AY 2003- 04 2. FOR THE YEAR UNDER CONSIDERATION THE ASSESSEE M ADE A REQUEST FOR THE ADMISSION OF FOLLOWING ADDITIONAL GROUND:- THAT IN THE ABSENCE OF NOTICE ISSUED U/S 143(2) TH E REASSESSMENT PROCEEDING AND CONSEQUENTIAL ASSESSMENT ORDER IS WITHOUT JURIS DICTION AND UN- SUSTAINABLE IN LAW AS WELL AS ON MERITS. ITA NOS. 39 TO 43 AHD 2013 SHRI CHATURBHAI JOITARAM PATEL VS/ ITO AYS 2003-04 TO 2007-08 2 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE MAY BE ADMITTED IN VIEW OF THE DECISION OF THE HONBLE APE X COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998) 229 ITR 383 AND JUTE CORPORATION OF INDIA LIMITED VS. CIT 187 ITR 688. HE SUBMITTED THAT UNDISPUTEDLY ALL THE FACTS RELATING TO ADJUDICATION OF THIS GROUND OF APPEAL ARE ALREADY ON THE RECORD OF THE REVENUE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND SUBMITTED THAT THE ASSESSEE HAS NOT RAISED ANY SUCH GROUND BE FORE THE CIT(A) AND THEREFORE HE SHOULD NOT BE PERMITTED AT THIS LATE STAGE TO RAISE THIS ADDITIONAL GROUND. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THIS ISSUE TO BE SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. (SUPRA) . IN THE SAID CASE THE ASSESSEE HAD OFFERED THE INTEREST INCOME IN THE RET URN OF INCOME AND DID NOT DISPUTE THE TAXABILITY OF INTEREST INCOME BEFORE TH E CIT(A) AND EVEN BEFORE THE TRIBUNAL IN THE GROUNDS OF APPEAL. HOWEVER DUR ING THE COURSE OF HEARING BEFORE THE ITAT ADDITIONAL GROUND WAS RAIS ED CHALLENGING THE TAXABILITY OF INTEREST INCOME. THE ITAT REFUSED TO ENTERTAIN THE SAID GROUND. ON APPEAL THE HONBLE APEX COURT HELD THAT TRIBUNAL HAD JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH AROSE FROM THE FACT S AS FOUND BY THE IT AUTHORITIES AND HAVING A BEARING ON THE TAX LIABILITY OF THE AS SESSEE. THEREFORE THE ASSESSEE CAN RAISE THE GROUND FOR THE FIRST TIME BEFORE THE TRIBUNAL EVEN IF THE INTEREST WAS OFFERED AS INCOME IN THE RETURN OF INCOME PROVI DED RELEVANT FACTS FOR ADJUDICATION OF THE SAID GROUND ARE AVAILABLE ON RE CORD. WE THEREFORE ITA NOS. 39 TO 43 AHD 2013 SHRI CHATURBHAI JOITARAM PATEL VS/ ITO AYS 2003-04 TO 2007-08 3 RESPECTFULLY FOLLOWING THE ABOVE DECISION OF HONBL E APEX COURT ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. 6. AT THE TIME OF HEARING BEFORE US IT IS SUBMITTE D BY THE LD. COUNSEL THAT THE ASSESSING OFFICER NEVER ISSUED ANY NOTICE U/S 143(2) IN THIS CASE. HE REFERRED TO THE ASSESSMENT ORDER AND STATED THAT FROM THE ASSESSMENT ORDER IT IS EVIDENT THAT ONLY NOTICE ISSUED WAS NOT ICE U/S 142(1). HE RELIED UPON THE DECISION OF HONBLE APEX COURT IN THE CASE OF ACIT & ANR VS. HOTEL BLUE MOON (2010) 321 ITR 362 AND SUBMITTED THAT THE ASSESSMENT COMPLETED U/S 143(3) WITHOUT ISSUE OF NOTICE U/S 14 3(2) IS ILLEGAL AND SHOULD BE QUASHED. 7. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IN THE CASE OF HOTEL BLUE MOON (SUPRA) THE HONBLE APEX COURT HELD AS UNDER:- SECTION 158BC PROVIDES FOR ENQUIRY AND ASSESSMENT. AFTER THE RETURN IS FILED CLAUSE (B) OF SECTION 158BC PROVIDES THAT THE ASSESSING OFFICER SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECTION 158BB AND THE PROVISIO NS OF SECTION 142 SUB- SECTIONS (2) AND (3) OF SECTION 143 SECTION 144 AND SECTION145 SHALL SO FAR AS MAY BE APPLY. THIS INDICATES THAT THIS CLAUSE EN ABLES THE ASSESSING OFFICER AFTER THE RETURN IS FILED TO COMPLETE THE ASSESSME NT UNDER SECTION 143(2) BY FOLLOWING THE PROCEDURE LIKE ISSUE OF NOTICE UNDER SECTION 143(2)/142. THIS DOES NOT PROVIDE ACCEPTING THE RETURN AS PROVIDED U NDER SECTION 143(1)(A) : THE OFFICER HAS TO COMPLETE THE ASSESSMENT UNDER SE CTION 143(3) ONLY. IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECTION 143(3) R EAD WITH SECTION 158BC NOTICE UNDER SECTION 143(2) SHOULD BE 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 SECTION 143(2) CANNOT BE A PROCED URAL IRREGULARITY AND IS ITA NOS. 39 TO 43 AHD 2013 SHRI CHATURBHAI JOITARAM PATEL VS/ ITO AYS 2003-04 TO 2007-08 4 NOT CURABLE. THEREFORE THE REQUIREMENT OF NOTICE U NDER SECTION 143(2) CANNOT BE DISPENSED WITH. DECISIONS OF THE GAUHATI HIGH COURT AND OF THE DELH I HIGH COURT IN CIT V. PAWAN GUPTA (2009) 318 ITR 322 AFFIRMED. 9. THOUGH THE ABOVE DECISION OF THE HONBLE APEX CO URT WAS WITH REFERENCE TO BLOCK ASSESSMENT U/S 158BC THE RATIO OF ABOVE DECISION WOULD BE SQUARELY APPLICABLE FOR THE ASSESSMENT COMPLETED U/S 143(3) READ WITH SECTION 147. ADMITTEDLY IN THE CASE UNDER APPEAL BEFORE US THE ASSESSING OFFICER ASSUMED JURISDICTION U/S 147 BECAUSE AS PE R HIM THERE WAS AN ESCAPEMENT OF INCOME OF RS.6 LACS. HOWEVER AFTER THE ASSUMPTION OF JURISDICTION U/S 147 THE ASSESSMENT WAS ULTIMATELY COMPLETED U/S 143(3). FOR COMPLETION OF ASSESSMENT U/S 143(3) ISSUANCE O F NOTICE U/S 143(2) IS MANDATORY. FROM THE PERUSAL OF THE ASSESSMENT ORDE R WE FIND THAT THE ASSESSING OFFICER HAS MENTIONED ABOUT THE ISSUANCE OF NOTICE U/S 142(1) DATED 15.10.2010; THEREAFTER THE ISSUANCE OF LETTER DATED 10.12.2010 AND ANOTHER LETTER DATED 20.12.2010. THERE IS NO MENTI ON OF THE ISSUANCE OF ANY NOTICE U/S 143(2). IN VIEW OF ABOVE WE ACCEPT ASS ESSEES SUBMISSION THAT NO NOTICE U/S 143(2) WAS ISSUED. WE MAY CLARIFY HERE THAT EVEN AFTER PASSING OF THIS ORDER IF THE REVENUE FINDS THAT NOTICE U/S 14 3(2) WAS ISSUED AND SERVED WITHIN TIME UPON THE ASSESSEE THE REVENUE WILL BE AT LIBERTY TO FILE THE MISCELLANEOUS APPLICATION FOR RECALLING OF THIS ORD ER. SUBJECT TO THIS OBSERVATION WE HOLD THAT THE COMPLETION OF ASSESSM ENT U/S 143(3) R.W.S. 147 WITHOUT ISSUANCE OF NOTICE U/S 143(2) IS INVALID AN D ACCORDINGLY THE SAME IS QUASHED. 10. FOR ASSESSMENT YEARS 2004-05 2005-06 2006-07 AND 2007-08 THE ASSESSEE HAS RAISED THE IDENTICAL ADDITIONAL GROUND . THE SAME ARE ADMITTED FOR THE DETAILED DISCUSSION IN PARAGRAPH NO. 5 ABOV E. THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 FOR ASSESSMENT YEAR S 2004-05 TO 2007-08 ARE ITA NOS. 39 TO 43 AHD 2013 SHRI CHATURBHAI JOITARAM PATEL VS/ ITO AYS 2003-04 TO 2007-08 5 ALSO QUASHED AS IN ALL THOSE YEARS ALSO THERE IS NO EVIDENCE OF SERVICE OF ANY NOTICE U/S 143(2). 11. SINCE WE HAVE ALREADY QUASHED THE ASSESSMENT OR DER WHILE DISPOSING OF THE ASSESSEES ADDITIONAL GROUND OF APPEAL THE OTHER GROUNDS RAISED BY THE ASSESSEE ALONG WITH MEMO OF APPEAL NEED NO ADJU DICATION. 12. IN THE RESULT ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 31 ST JULY 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 31/07/2015 BIJU T. PS )* # $+ )+$ )* # $+ )+$ )* # $+ )+$ )* # $+ )+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ !- / CONCERNED CIT 4. !- ( ) / THE CIT(A) 5. +01 $ / DR ITAT AHMEDABAD 6. 13 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER TRUE COPY 5 55 5/ // / 6 6 6 6 ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD