The ACIT, 1(1), v. M/s Vikalp Deria (HUF),

ITA 804/IND/2007 | 2004-2005
Pronouncement Date: 25-01-2010 | Result: Allowed

Appeal Details

RSA Number 80422714 RSA 2007
Assessee PAN AAEHV4818H
Bench Indore
Appeal Number ITA 804/IND/2007
Duration Of Justice 2 year(s) 24 day(s)
Appellant The ACIT, 1(1),
Respondent M/s Vikalp Deria (HUF),
Appeal Type Income Tax Appeal
Pronouncement Date 25-01-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 25-01-2010
Date Of Final Hearing 25-01-2010
Next Hearing Date 25-01-2010
Assessment Year 2004-2005
Appeal Filed On 31-12-2007
Judgment Text
PAGE 1 OF 4 - 87 & 204/IND/2008 M/S. VIKALP DERIA (HUF) HOSHANGABAD IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER PAN NO. : AAEHV4818H I.T.A.NO. 804/IND/2007 A.Y. : 2004-05 ACIT M/S.VIKALP DERIA HUF 1(1) VS DERIA LIME BABLA BHOPAL. DISTRICT HOSHANGABAD. APPELLANT RESPONDENT PAN NO. : AAEHV4818H I.T.A.NO. 804/IND/2007 A.Y. : 2004-05 M/S.VIKALP DERIA HUF ACIT DERIA LIME BABLA VS 1(1) DISTRICT HOSHANGABAD. BHOPAL. APPELLANT RESPONDENT DEPARTMENT BY : SMT.APARNA KARAN SR. DR ASSESSEE BY : SHRI H.P.VERMA ADV.AND SHRI GIRISH AGARWAL ADV. DATE OF HEARING : 25/01/2010 O R D E R PER BENCH THESE CROSS APPEALS ARISE OUT OF ORDER OF THE LD. C IT(A) DATED 25.09.2007 FOR THE ASSESSMENT YEAR 2004-05. PAGE 2 OF 4 - 87 & 204/IND/2008 M/S. VIKALP DERIA (HUF) HOSHANGABAD 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY O UT-SET SUBMITTED THAT IN ASSESSEES APPEAL A LEGAL ISSUE REGARDING NON-SERVICE OF NOTICE U/S 143(2) CONSEQUENTLY MAKING THE ASSESSME NT NULL AND VOID HAD BEEN RAISED. HENCE THIS ISSUE SHOULD BE DECIDED FI RST. IN THIS REGARD HE FURTHER SUBMITTED THAT THE A.O. VIDE ITS LETTER DAT ED 27.11.2006 (COPY OF THE SAME IS PLACED AT PAGE 129 OF THE PAPER BOOK-II ) WAS APPRISED OF THIS FACT. HOWEVER THE A.O. DID NOT GIVE ANY FINDING ON THIS ASPECT IN THE ASSESSMENT ORDER. HE FURTHER SUBMITTED THAT A SPECI FIC GROUND NO. 2 HAD BEEN RAISED BEFORE THE LD. CIT(A) CHALLENGING THE V ALIDITY OF THE ASSESSMENT PROCEEDINGS FOR THIS VERY REASON. HOWEVE R THE LD. CIT(A) ALSO DID NOT GIVE ANY FINDING ON THIS GROUND. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND CONTENDED THAT AS PER THE ASSESSMENT ORDER PAGE 1 NOTICE U/S 143(2) HAD BEEN SERVED ON THE ASSESSEE ON 5.9.2006. THE LEARNE D COUNSEL AT THIS STAGE SUBMITTED THAT IN THE ASSESSMENT ORDER THE FACT OF ISSUE OF SUCH NOTICE WAS MENTIONED AND NOT THE SERVICE THEREOF. T HE LEARNED COUNSEL FURTHER SUBMITTED THAT AN AFFIDAVIT OF THE ASSESSEE SUPPORTING ITS SUCH CLAIM HAD ALSO BEEN BEFORE THE TRIBUNAL. IN THE BAC KGROUND OF THE FACTS AS STATED BY BOTH THE SIDES AND JUDICIALLY SETTLED PRI NCIPLE THAT SERVICE OF PAGE 3 OF 4 - 87 & 204/IND/2008 M/S. VIKALP DERIA (HUF) HOSHANGABAD NOTICE U/S 143(2) OF THE ACT WITHIN THE STIPULATED TIME IS A MUST FOR MAKING VALID ASSESSMENT U/S 143(3) WE ARE OF THE V IEW THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE LD. CIT(A) TO DEC IDE THE SPECIFIC GROUND RAISED BY THE ASSESSEE BEFORE HIM IN THIS REGARD. ACCORDINGLY WE RESTORE THIS GROUND OF THE ASSESSEE TO THE FILE OF LD. CIT( A) TO DECIDE THE SAME AS PER LAW AFTER GIVING AN ADEQUATE OPPORTUNITY OF HEA RING TO THE ASSESSEE WHO SHALL BE AT LIBERTY TO FURNISH THE AFFIDAVIT OR THE OTHER EVIDENCES IN SUPPORT OF ITS CLAIM. ACCORDINGLY WE DO NOT CONSID ER IT NECESSARY TO EXPRESS ANY OPINION ON THE ISSUES ON MERITS BECAUS E FIRST OF ALL THE VALIDITY OF ASSESSMENT HAS TO BE EXAMINED. ACCORDIN GLY BOTH THE GROUNDS ARE RESTORED TO THE FILE OF THE LD. CIT(A). 5. IN THE RESULT ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES ON LEGAL GROUNDS AND CONSEQUENTLY THE OTHE R ISSUES IN ASSESSEES APPEAL AS WELL AS REVENUES APPEAL ARE ALSO RESTORE D TO THE FILE OF THE LD. CIT(A) AS THE FATE OF SUCH ISSUES IS DEPENDENT UPON THE OUTCOME OF THE LD. CIT(A)S DECISION ON THE LEGAL ISSUE SO RESTORE D BACK TO HIS FILE. 6. IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR STA TISTICAL PURPOSES. PAGE 4 OF 4 - 87 & 204/IND/2008 M/S. VIKALP DERIA (HUF) HOSHANGABAD THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 25 TH JANUARY 2010. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 25 TH JANUARY 2010. CPU* 25271