ITO WD 2 (3), THANE v. NEELAM MAHESH GOYAL, THANE

ITA 546/MUM/2012 | 2003-2004
Pronouncement Date: 17-10-2013 | Result: Dismissed

Appeal Details

RSA Number 54619914 RSA 2012
Assessee PAN AACPM0287H
Bench Mumbai
Appeal Number ITA 546/MUM/2012
Duration Of Justice 1 year(s) 8 month(s) 20 day(s)
Appellant ITO WD 2 (3), THANE
Respondent NEELAM MAHESH GOYAL, THANE
Appeal Type Income Tax Appeal
Pronouncement Date 17-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 17-10-2013
Date Of Final Hearing 10-10-2013
Next Hearing Date 10-10-2013
Assessment Year 2003-2004
Appeal Filed On 27-01-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH MUMBAI BEFORE SHRI D. MANMOHAN VICE PRESIDENT AND SHRI SANJAY ARORA ACCOUNTANT MEMBER ITA NO. 546/MUM/2012 (ASSESSMENT YEAR: 2003-04) INCOME TAX OFFICER - 2(3) SMT. NEELAM MAHESH GOYAL QURESHI MANSION 1ST FLOOR A-5 SAI ARADHANA CHS LT D. GOKHALE ROAD NAUPADA VS. SWAGATAM COMPLEX JESAL PARK THANE (W) BHAYANDER (W) THANE PAN - AACPM0287H APPELLANT RESPONDENT APPELLANT BY: SHRI MANVENDRA GOYAL RESPONDENT BY: SHRI N.M. PORWAL DATE OF HEARING: 17.10.2013 DATE OF PRONOUNCEMENT: 17.10.2013 O R D E R PER D. MANMOHAN V.P. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-II THANE AND IT PERTAINS TO A.Y. 2003-04. 2. THE MAIN GROUND URGED BEFORE US IS THAT THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ORDER PASSED CONSEQUENT TO THE NOT ICE ISSUED UNDER SECTION 148 OF THE ACT IS BAD IN LAW; ACCORDING TO THE AO T HE IMPUGNED ASSESSMENT ORDER WAS PASSED AFTER DULY SERVING NOTICE UNDER SE CTION 143(2) AND 142(1) OF THE ACT AND HENCE THE LEARNED CIT(A) WAS NOT JUS TIFIED IN DELETING THE CONSEQUENT ADDITION MADE THEREIN. 3. THE CASE WAS POSTED FOR HEARING ON 14.10.2013 ON W HICH DATE THE LEARNED COUNSEL SHRI N.M. PORWAL APPEARED ON BEHA LF OF THE ASSESSEE AND CONTENDED THAT THE ASSESSMENT WAS COMPLETED WITHOUT PROPER SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT BY THE CONCERNE D AO. HE HAS ALSO ADVERTED OUR ATTENTION TO THE ASSESSMENT ORDER AS W ELL AS THE ORDER OF THE CIT(A) TO SUBMIT THAT THERE IS NO DISPUTE WITH REGA RD TO THE FACT THAT NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED BY THE DCIT CIRCLE I KALYAN BUT ITA NO. 546/MUM/2012 SMT. NEELAM MAHESH GOYAL 2 UPON ALLEGED TRANSFER OF JURISDICTION THE INCOME T AX OFFICER WARD 2(3) THANE HAS NEVER ISSUED NOTICE UNDER SECTION 148 OF THE ACT BUT ASSUMED JURISDICTION AND HENCE THE ASSESSMENT ORDER DESERVE S TO BE QUASHED FOR WANT OF ASSUMING PROPER JURISDICTION. SINCE THIS IS A DEPARTMENTAL APPEAL WE HAVE DIRECTED THE LEARNED D.R. TO OBTAIN THE REC ORD AND ALSO TO FURNISH RELEVANT DETAILS WHICH MAY THROW LIGHT UPON THE FAC TUAL MATRIX OF THE CASE. THE CASE WAS ACCORDINGLY ADJOURNED TO 17.10.2013 O N WHICH DATE SHRI SANJEEV GHEI JT. COMMISSIONER OF INCOME TAX RANGE -2 THANE APPEARED AND FILED A LETTER DATED 15.01.2013 ADDRESSED TO TH E CIT-DR WHICH READS AS UNDER: - KINDLY REFER TO OUR TELEPHONIC CONVERSATION ON THE ABOVE CITED SUBJECT. SINCE THE AO VIDE HIS LETTER NO. THN/ITO/WD/2(2)/NG /2013-14/NIL NUMBER DATED 15/10/2013 (COPY ENCLOSED FOR READY RE FERENCE) ADDRESSED TO UNDERSIGNED HAS EXPRESSED HIS INABILIT Y TO PROVIDE THE REQUISITE DETAILS/ DOCUMENTS/RECORDS IN THE ABOVE C ITED CASE AT A SHORT NOTICE IT IS REQUESTED THAT SUFFICIENT TIME MAY KI NDLY BE SOUGHT FROM THE HON'BLE ITAT B BENCH MUMBAI SO THAT THE CON CERNED RECORDS COULD BE TRACED AND PRODUCED ON THE NEXT DATE OF HE ARING. 4. UNDER THESE CIRCUMSTANCES WE PROCEEDED TO DISPOSE O F THE APPEAL ON THE STRENGTH OF THE MATERIAL AVAILABLE ON RECORD. T HE FACTS IN SHORT ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN PRIVATE TU ITIONS AND SHE DECLARED TOTAL INCOME OF ` 2 14 430/- BEFORE THE AO WARD 4(3) THANE WHO HAD JURISDICTION ON THE ASSESSEE AT THAT POINT OF TIME SINCE ASSESSEE WAS RESIDING AT BHAYANDAR. NO ACTION WAS TAKEN THEREIN BUT THE C ASE WAS SOUGHT TO BE REOPENED BY THE DCIT CIRCLE-I KALYAN BY ISSUING N OTICE UNDER SECTION 148 OF THE ACT ON THE GROUND THAT THE ASSESSEE AND ITS GROUP WAS ENGAGED IN FRAUDULENT BILLING ACTIVITIES ETC. 5. AS THE JURISDICTION OF THE CASE LIES WITH THE ITO WARD 2(3) THANE THE CASE WAS TRANSFERRED TO THE ITO WARD 2(3) WHO MERE LY ISSUED A NOTICE UNDER SECTION 143(2)/142(1) OF THE ACT ON 11.10.2010. VID E LETTER DATED 30.11.2010 THE ASSESSEE REQUESTED THE AO TO FURNISH REASONS FO R REOPENING OF ASSESSMENT COPY OF NOTICE PROOF OF SERVICE OF NOT ICE AND REASONS RECORDED THEREIN. THE AO SUPPLIED THE COPIES ASKED FOR EXCEP T PROOF OF SERVICE OF NOTICE. AT THIS JUNCTURE THE ASSESSEE CHALLENGED TH E REOPENING OF THE ITA NO. 546/MUM/2012 SMT. NEELAM MAHESH GOYAL 3 ASSESSMENT ON THE GROUND THAT THE SO CALLED NOTICE UNDER SECTION 148 OF THE ACT WAS NOT SERVED UPON THE ASSESSEE AND THEREFORE THE PROCEEDINGS INITIATED IS BAD IN LAW. THE AO REJECTED THE CONTEN TION OF THE ASSESSEE BY OBSERVING THAT NOTICE WAS ISSUED UNDER SECTION 148 BY THE DCIT CRICEL-I KALYAN AND THE CASE WAS ULTIMATELY TRANSFERRED TO T HE AO CONCERNED WHO IN TURN ISSUED NOTICE UNDER SECTION 143(2)/142(1) OF T HE ACT. HE THEREFORE PROCEEDED TO COMPLETE THE ASSESSMENT WHEREIN HE DET ERMINED THE TOTAL INCOME AT ` 14 58 297/-. 6. AGGRIEVED ASSESSEE CONTENDED BEFORE THE LEARNED CI T(A) THAT SHE WAS REGULARLY ASSESSED TO TAX AT WARD 2(3) THANE (EARL IER WARD 4(3) THANE). HOWEVER FOR A.Y. 2003-04 THE CASE WAS STATED TO HA VE BEEN REOPENED BY DICT KALYAN WHO HAS NO JURISDICTION OVER THE CASE . IT WAS ALSO CONTENDED THAT UNDER SECTION 148 OF THE ACT SERVICE OF NOTICE IS A CONDITION PRECEDENT TO MAKING THE ORDER OF ASSESSMENT. IN THE INSTANT CASE THERE IS NO PROOF OF SERVICE OF NOTICE. RELIANCE WAS PLACED UPON SEVERAL DECISIONS IN SUPPORT OF HER CONTENTION THAT SERVICE OF NOTICE CANNOT BE REG ARDED AS MERE PROCEDURAL REQUIREMENT AND IN THE ABSENCE OF SERVICE OF NOTICE THE ENTIRE PROCEEDINGS SHOULD BE TREATED AS NULL AND VOID. THE LEARNED CIT (A) CALLED FOR THE ASSESSMENT RECORDS AND NOTICE. THE NATURAL JURISDIC TION OF THE CASE OF THE ASSESSEE WAS WITH THE ITO WARD 2(3) THANE BUT THE DCIT CIRCLE-I KALYAN SOUGHT TO REOPEN THE ASSESSMENT WHICH IS NOT IN AC CORDANCE WITH LAW. THE ISSUE WAS DEALT WITH ELABORATELY IN PARA 5 OF HIS O RDER. IN PARA 5.12 HE ULTIMATELY HELD THAT THE AO HAS NOT PLACED ANY EVID ENCE ON RECORD THAT THE NOTICE UNDER SECTION 148 OF THE ACT WAS PROPERLY SE RVED UPON THE ASSESSEE AS LAID DOWN IN THE LAW. IN THE ABSENCE OF EVIDENCE ON RECORD HE CONCLUDED THAT THE NOTICE IN THE INSTANT CASE WAS WITHOUT JUR ISDICTION AND THE SAME WAS NOT PROPERLY SERVED ON THE ASSESSEE AS PER LAW WHICH IS A PRE-REQUISITE FOR MAKING ASSESSMENT. CONSEQUENTLY THE ASSESSMENT BASED UPON THE SO CALLED REASSESSMENT PROCEEDINGS INITIATED ARE BAD IN LAW AND HENCE THE ADDITIONS MADE THEREIN WERE DELETED BY THE LEARNED CIT(A). 7. EVEN BEFORE US THE LEARNED D.R. WAS NOT ABLE TO PLA CE ANY MATERIAL TO CONTRADICT THE FINDINGS OF THE LEARNED CIT(A). IT D ESERVES TO BE NOTICED THAT ITA NO. 546/MUM/2012 SMT. NEELAM MAHESH GOYAL 4 THE FIRST APPELLATE AUTHORITY PASSED THE ORDER ON 1 3.10.2011 AND THE APPEAL WAS PREFERRED IN THE MONTH OF JANUARY 2012 AND EVE N THEREAFTER THE LEARNED D.R. SOUGHT NUMBER OF ADJOURNMENTS TO OBTAI N RELEVANT RECORD TO SUPPORT THE GROUNDS URGED BEFORE US. HOWEVER THE L EARNED D.R. WAS UNABLE TO FURNISH ANY RECORD. IN FACT THE AO HAS NOT EVEN CONSIDERED THE OBJECTIONS RAISED BY THE ASSESSEE WHICH CLEARLY INDICATES THA T THE AO WAS AWARE OF THE LACUNA IN THE MATTER OF REOPENING OF THE ASSESSMENT AND HENCE CHOSE NOT TO DEAL WITH THE ISSUES URGED BEFORE HIM IN DETAIL. UN DER THESE CIRCUMSTANCES IN THE ABSENCE OF ANY EVIDENCE PLACED BY THE LEARNE D D.R. TO CONTRADICT THE FINDINGS OF THE LEARNED CIT(A) WE ARE OF THE VIEW THAT THE REVENUE COULD NOT MAKE OUT ANY CASE TO SUPPORT ITS CONTENTIONS AND HE NCE THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH OCTOBER 2013. SD/- SD/- (SANJAY ARORA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI DATED: 17 TH OCTOBER 2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) II- THANE 4. THE CIT I - THANE 5. THE DR B BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.