ITO, Kota v. YOGENDRA KUMAR KHURANA, Kota

ITSSA 1/JPR/2011 | misc
Pronouncement Date: 22-07-2011 | Result: Dismissed

Appeal Details

RSA Number 123116 RSA 2011
Bench Jaipur
Appeal Number ITSSA 1/JPR/2011
Duration Of Justice 6 month(s) 11 day(s)
Appellant ITO, Kota
Respondent YOGENDRA KUMAR KHURANA, Kota
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 22-07-2011
Assessment Year misc
Appeal Filed On 10-01-2011
Judgment Text
1 ITSSA 1-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITSSA NO. 1/JP/2011 BLOCK PERIOD : 1990-91TO 2000-01. THE INCOME-TAX OFFICER VS. SHRI YOGENDRA KUMAR K HURANA WARD 1(2) 1-JHA-16 VIGYAN NAGAR KOTA. KOTA. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. ROSHANTA MEENA RESPONDENT BY : SHRI G.G. MUNDRA ORDER DATE OF ORDER : 22/07/2011. PER R.K. GUPTA J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO BLOCK PERIOD 1990-91 TO 2000-01 (UPTO 07.04.1999). 2. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE DEP ARTMENT :- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD. CIT (A) HAS GROSSLY ERRED IN ANNULLING THE ASSESSMENT ORDER MAD E BY THE ASSESSING OFFICER U/S 158BC/143(3) ON 30.4.2001 ON LEGAL GROU ND OF NOT ISSUING THE NOTICE U/S 143(2) WITHIN 12 MONTHS FROM THE END OF MONTH IN WHICH THE RETURN OF INCOME WAS FILED AS THIS IS A SEARCH AND SEIZURE CASE AND NOTICE REQUIRED TO BE SEND IS U/S 158BC(A)(II) R.W.S. 142( 1) OF THE IT ACT WHICH WAS SEND BY AO ON 08.12.2000. (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD. CIT (A) HAS GROSSLY ERRED IN NOT DECIDING THE APPEAL ON MERITS AS PER THE DIRECTION OF HONBLE ITAT JAIPUR WHILE REMANDING THE CASE TO HI M. 2 3. THE LD. D/R LACED RELIANCE ON THE ORDER OF AO. IT WAS FURTHER SUBMITTED THAT THE GROUNDS OF THE DEPARTMENT ARE SELF-EXPLANATORY THE REFORE THE GROUNDS OF THE DEPARTMENT SHOULD BE TAKEN INTO CONSIDERATION. 4. ON THE OTHER HAND THE LD. COUNSEL OF THE ASSESS EE STATED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF HONBLE APEX COURT IN CA SE OF HOTEL BLUE MOON 321 ITR 362 (SC) AND LD. CIT (A) HAS FOLLOWED THE SAME. THERE FORE THE ORDER OF LD. CIT (A) IS LIABLE TO BE CONFIRMED. 5. AFTER CONSIDERING THE ORDERS OF AO AND LD. CIT ( A) WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A). UNDISPUTEDLY NO NOTICE UN DER SECTION 143(2) WAS ISSUED TO THE ASSESSEE WHICH IS MANDATORY FOR ASSUMING JURISDICT ION FOR COMPLETION OF ASSESSMENT. THE HONBLE APEX COURT IN CASE OF HOTEL BLUE MOON (SUPR A) HAS HELD THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) WITHIN THE PRESCRIBED TIME IS MANDATORY AND IF THE NOTICE IS NOT ISSUED WITHIN THE PRESCRIBED TIME THEN THE ASSESSM ENT SO COMPLETED IS WITHOUT JURISDICTION. 6. SIMILAR VIEW HAS BEEN TAKEN BY THE TRIBUNAL IN C ASE OF KAILASH NATH MALHOTRA 34 SOT 541 (MUM). SIMILAR VIEW HAS BEEN EXPRESSED IN T HE CASE OF CIT VS. PAWAN GUPTA 318 ITR 322 (SC) ALSO. THE LD. CIT (A) HAS FOLLOW ED THESE DECISIONS. THEREFORE WE SEE NO REASON TO INTERFERE WITH THE FINDING OF LD. CIT (A) WHICH REMAINED UNCONTROVERTED ALSO ON THE LEGAL ISSUE. 7. REGARDING SECOND GROUND OF THE DEPARTMENT THAT L D. CIT (A) HAS NOT DECIDED THE ISSUE ON MERIT ONCE THE ASSESSMENT WAS QUASHED BY HOLDING THAT THE SAME WAS WITHOUT JURISDICTION THEREFORE THE OTHER GROUND BECAME AC ADEMIC IN NATURE. THEREFORE WE 3 UPHOLD THAT THE LD. CIT (A) WAS JUSTIFIED IN NOT DE CIDING THE GROUND AT THAT POINT OF TIME. ACCORDINGLY THIS GROUND OF THE DEPARTMENT IS ALSO DISMISSED. 8. IN THE RESULT APPEAL OF THE DEPARTMENT IS DISMI SSED. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 22. 7.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR D/- COPY FORWARDED TO :- THE ITO WARD 1(2) KOTA. SHRI YOGENDRA KUMAR KHURANA KOTA. THE CIT (A) THE CIT THE D/R GUARD FILE (ITSSA NO. 1/JP/2011) BY ORDER AR ITAT JAIPUR.