The DCIT, Circle-5,, Ahmedabad v. Panorama Builders Pvt.Ltd.,, Ahmedabad

ITSSA 152/AHD/2007 | misc
Pronouncement Date: 02-07-2010 | Result: Dismissed

Appeal Details

RSA Number 15220516 RSA 2007
Assessee PAN AACCP1958R
Bench Ahmedabad
Appeal Number ITSSA 152/AHD/2007
Duration Of Justice 2 year(s) 7 month(s) 2 day(s)
Appellant The DCIT, Circle-5,, Ahmedabad
Respondent Panorama Builders Pvt.Ltd.,, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 02-07-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 02-07-2010
Date Of Final Hearing 30-06-2010
Next Hearing Date 30-06-2010
Assessment Year misc
Appeal Filed On 30-11-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND D. C. AGRAWAL AM) IT (SS) A NO.152/AHD/2007 BLOCK PERIOD: 01-04-1997 TO 25-07-2002 THE DCIT CENTRAL CIRCLE-5 C. U. SHAH COLLEGE BUILDING 2 ND FLOOR AHMEDABAD VS PANORAMA BUILDERS PVT. LTD. C/O. HOTEL FORTUNE LANDMARK USMANPURA AHMEDABAD PA NO. AACCP 1958 R (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SHELLEY JINDAL DR RESPONDENT BY SHRI S. H. TALATI AR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XI AHMEDAB AD DATED 28-09-2007 FOR THE ABOVE BLOCK PERIOD ON THE FOLLOWING EFFECTI VE GROUNDS: 1. THE LD. COMMISSIONER OF INCOME TAX (A) XI AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSMENT ORDER PASSED IS BAD IN LAW AS T HE NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT 1961 WAS ISSUED BEYOND A PERIOD OF 12 MONTHS FROM THE EN D OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FURNISHED BY THE ASSESSEE. 2. THE LD. COMMISSIONER OF INCOME TAX (A) XI AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE OF RS.1 42 01 000/- UNDER SECTION 68 OF THE INCOME TAX ACT 1961 ON ACCOUNT OF UNDISCLOS ED INCOME. 2. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH THE P ARTIES PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERE D THE MATERIAL ON RECORD POINTED OUT BY THE PARTIES. IT (SS)A NO.152/AHD/2007 DCIT CIR-5) AHMEDABAD VS PANORAMA BUILDERS PVT. LT D. 2 3. BRIEFLY THE FACTS OF THE CASE ARE RETURN FOR TH E BLOCK PERIOD WAS FILED BY THE ASSESSEE ON 06-10-2004. IT WAS THEREF ORE CONTENDED BEFORE THE LEARNED CIT(A) THAT NOTICE U/S 143(2) OF THE IT ACT OUGHT TO HAVE BEEN ISSUED LATEST BY 31-10-2005. HOWEVER THE SAME WAS ISSUED ONLY ON 06-07-2006 AS STATED IN THE ASSESSMENT ORDER AND AL SO CONFIRMED VIDE PARA 3 OF THE AOS REPORT. ACCORDING TO THE ASSESSE E THUS THE NOTICE ISSUED BEYOND THE PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN WAS FURNISHED BY THE ASSESSEE. IT WAS THEREFORE PLEADED THAT THE ASSESSMENT ORDER PASSED BY THE AO MAY BE Q UASHED BEING BAD IN LAW. THE DECISION OF THE HONBLE GAUAHTI HIGH CO URT IN THE CASE OF SMT. BANDANA GOGOI VS CIT AND OTHERS 289 ITR 28 WAS REFERRED TO. THE LEARNED CIT(A) CONSIDERING THE SUBMISSION OF THE AS SESSEE NOTED THAT THE RETURN OF INCOME FOR THE BLOCK PERIOD WAS FILED ON 06-10-2004 WHEREAS NOTICE U/S 143(2) OF THE IT ACT WAS ISSUED ONLY ON 06-07-2006. THEREFORE SUBMISSION OF THE ASSESSEE THAT THE SAID NOTICE OUG HT TO HAVE BEEN ISSUED LATEST BY 31-10-2005 IS CORRECT IN VIEW OF T HE DECISION OF THE HONBLE GAUHATI HIGH COURT IN THE CASE OF SMT. BAND ANA GOGOI (SUPRA) IN WHICH IT WAS HELD THAT ISSUE OF NOTICE U/S 143(2 ) OF THE IT ACT IS MANDATORY IN THE ASSESSMENT PROCEEDINGS FOR BLOCK P ERIOD UNDER CHAPTER XIV B OF THE IT ACT. HE LEARNED CIT(A) CONS IDERING THE ABOVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND ALL OWED THE APPEAL OF THE ASSESSEE ON WHICH REVENUE HAS RAISED GROUND NO.1 AB OVE. AS REGARDS GROUND NO.2 IT WAS EXPLAINED BEFORE THE LEARNED CI T(A) THAT THE AFORESAID SUM WAS FOUND CREDITED IN THE BOOKS OF ACCOUNT ABOU T WHICH PROPER EXPLANATION HAS BEEN FILED. THE LEARNED CIT(A) ON C ONSIDERATION OF HE MATERIALS ON RECORD NOTED THAT THE ADDITION IS UNJU STIFIED AND ACCORDINGLY DELETED THE ADDITION BY CONSIDERING THE MATERIALS O N RECORD AS WELL AS REMAND REPORT FILED BY THE AO. 4. WHILE ELABORATING GROUND NO.1 LEARNED REPRESENT ATIVES OF BOTH THE PARTIES STATED THAT NOW THE ISSUE IS COVERED IN FAV OUR OF THE ASSESSEE BY IT (SS)A NO.152/AHD/2007 DCIT CIR-5) AHMEDABAD VS PANORAMA BUILDERS PVT. LT D. 3 THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CA SE OF ACIT VS HOTEL BLUE MOON 321 ITR 362 AND 229 CTR 219. 5. ON CONSIDERATION OF THE ABOVE FACTS WE ARE OF THE VIEW THAT THERE IS NO MERIT IN DEPARTMENTAL APPEAL ON GROUND NO.1. THE LEARNED CIT(A) HAS SPECIFICALLY NOTED IN THE IMPUGNED ORDER THAT R ETURN OF INCOME WAS FILED FOR THE BLOCK PERIOD ON 06-10-2004 WHEREAS N OTICE U/S 143(2) OF THE IT ACT WAS ISSUED ONLY ON 06-07-2006 WHICH OUG HT TO HAVE BEEN ISSUED LATEST BY 31-10-2005. THESE FACTS ARE ADMITT ED THAT THE NOTICE U/S 143(2) OF THE IT ACT WAS ISSUED IN THE INSTANT CASE BEYOND THE PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN WAS FURNISHED. ACCORDING TO THE PROVISO TO SECTION 143(2) OF THE I T ACT NO NOTICE UNDER THE ABOVE PROVISION SHALL BE SERVED UPON THE ASSESS EE AFTER EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN IS FURNISHED. HONBLE SUPREME COURT IN THE CASE OF HOT EL BLUE MOON (SUPR A) HELD THAT ISSUE OF NOTICE U/S 143(2) OF THE IT ACT WITHIN THE PRESCRIB ED TIME IS MANDATORY. IT WAS FURTHER HELD THAT - CONCLUSION: IF THE AO FOR ANY REASON REPUDIATES THE RETURN FILED BY THE ASSESSEE IN RESPONSE TO A NOTIC E UNDER S. 158BC (A) HE MUST NECESSARILY ISSUE NOTIC E UNDER S. 143(2) WITHIN THE TIME PRESCRIBED IN THE P ROVISO TO S. 143(2); OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER S. 143(2) CANNOT BE A MERE PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE. 6. CONSIDERING THE ABOVE WE ARE OF THE VIEW THAT L EARNED REPRESENTATIVES OF BOTH THE PARTIES HAVE RIGHTLY CO NTENDED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE. WE A CCORDINGLY DO NOT FIND ANY IRREGULARITY OR ILLEGALITY IN THE ORDER OF THE LEARNED CIT(A) IN DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE. ONCE THE NOTI CE U/S 143(2) IS NOT SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME THE WHOLE BLOCK ASSESSMENT ORDER WOULD BE NULL AND VOID AND BAD IN LAW. RESULTANTLY IT (SS)A NO.152/AHD/2007 DCIT CIR-5) AHMEDABAD VS PANORAMA BUILDERS PVT. LT D. 4 THERE IS NO MERIT IN GROUND NO.1 OF APPEAL OF THE R EVENUE. THE SAME IS ACCORDINGLY DISMISSED. 7. SINCE THE BLOCK ASSESSMENT ORDER IS QUASHED BY T HE LEARNED CIT(A) ON LEGAL ISSUE AND IS CONFIRMED BY THE TRIBUNAL HE NCE AL ADDITIONS WOULD SAND DELETED THEREFORE THE ISSUE OF DELETIN G THE ADDITION ON MERIT ON GROUND NO.2 IS OF ACADEMIC INTEREST ONLY. NO PU RPOSE WOULD SERVE TO DECIDE THE SAME ON MERIT HERE. 8. AS A RESULT THE DEPARTMENTAL APPEAL STANDS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2-07-2010 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 2-07-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR ITAT AHMEDABAD