DCIT, Faridabad v. Sanwali HUG, Ballabgarh

ITSSA 45/DEL/2009 | misc
Pronouncement Date: 12-03-2010 | Result: Dismissed

Appeal Details

RSA Number 4520116 RSA 2009
Bench Delhi
Appeal Number ITSSA 45/DEL/2009
Duration Of Justice 10 month(s) 1 day(s)
Appellant DCIT, Faridabad
Respondent Sanwali HUG, Ballabgarh
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 12-03-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 12-03-2010
Date Of Final Hearing 18-02-2010
Next Hearing Date 18-02-2010
Assessment Year misc
Appeal Filed On 11-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA VICE PRESIDENT AND SHRI I.P. BANSAL JUDICIAL MEMBER IT(SS)A NO. 45/DEL/2009 BLOCK PERIOD: 01.04.1989 TO 15.04.1999 DCIT CIRCLE-1 BLOCK-1-B CGO COMPLEX NH-4 FARIDABAD. VS. SANWALIA HUF C/O YADAV DAIRY MOHNA ROAD BALLABGARH. PAN NO. - (APPELLANT) (RESPONDENT) APPELLANT BY : GAJANAND MEENA CIT(DR) RESPONDENT BY: K.P. GARG CA O R D E R PER I.P. BANSAL J.M. THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER OF CIT(A) DATED 4.3.09 FOR BLOCK PERIOD FROM 1 ST APRIL 1989 TO 15 TH APRIL 1989. GROUNDS OF APPEAL READ AS UNDER: - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS RIGHT ON FACTS AND IN LAW IN QUASHIN G THE ASSESSMENT ON THE GROUND THAT THE STATUTORY CONDITI ONS OF SEC. 158BD REGARDING THE SATISFACTION OF THE AO HAVE NOT BEEN FULFILLED AND THAT NOTICE U/S 143(2) WAS ISSUED BEYOND PERIOD OF LIMITATION EVEN WHEN THE CONDITIONS OF SEC. 158BD HAVE BEEN FU LFILLED AND THE NORMAL PROVISIONS OF ISSUE OF NOTICE U/S 143(2) WITHIN THE PERIOD OF 12 MONTHS FROM THE MONTH IN WHICH RETURN IS FILED ARE NOT APPLICABLE IN A BLOCK ASSESSMENT? 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE FINDINGS RECOVERED BY THE LD. CIT(A) IN PARA 8 OF HIS ORDER ARE PERVERSE AND CONTRARY TO EVIDENCE AVAILABLE ON RECORD IN AS MUCH AS THE 2 IT(SS)A NO. 45/DEL/2009 AO VIDE NOTICE U/S 158BD ISSUED ON 13.10.2000 CALLE D FOR RETURN WITHIN 16 DAYS OF SERVICE OF NOTICE (COPY OF NOTICE ENCLOSED AS ANNEXURE A) AND THEREFORE THE CONDITION OF 15 DA YS NOTICE U/S 158BD STOOD DULY FULFILLED. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) WAS RIGHT ON FACTS AND IN LAW IN HOLDING THAT THE ASSESSMENT FRAMED BY THE AO U/S 158BD READ WITH 158BC/143(3)IS INVALID AND HAVING ANNULLED THE SAME DECIDING THE ADDITIONS MADE THEREIN ON MERITS AS ORDER HAS N O LEGALITY AND THEREFORE REFUSED TO DISCUSS THE CASE ON MERITS? 4. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD DELETE OR AMEND THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2. THE FACTS WHICH ARE REQUIRED TO ADJUDICATE GROUN D NO. 1 ARE THAT RETURN FOR BLOCK PERIOD WAS FILED ON 28.11.02. NOT ICE U/S 132(2) WAS ISSUED ON 29 TH SEPTEMBER 2004 I.E. BEYOND THE PERIOD OF ONE YEAR FROM THE END OF THE MONTH IN WHICH THE SERVICE OF NOTICE WAS MADE ON THE ASSESSEE. THUS IT WAS CLAIMED BY THE ASSESSEE THA T ASSESSMENT WAS TIME BARRED ON THAT ACCOUNT AND ASSESSEE RELIED ON VARIOUS DECISIONS FOR CONTENDING THAT ASSESSMENT COULD NOT BE FRAMED UNLE SS NOTICE U/S 143(2) IS ISSUED WITHIN THE PERIOD OF 12 MONTHS FRO M THE END OF THE MONTH IN WHICH THE NOTICE WAS SERVED ON ASSESSEE AN D LD. CIT(A) FOLLOWING THE DECISION INTER-ALIA OF HONBLE GUWAHA TI HIGH COURT IN THE CASE OF SMT. VANDANA GOGAI VS. CIT 289 ITR 37HAS HE LD THAT ASSESSMENT IS INVALID. THESE FINDINGS OF LD. CIT(A ) ARE RECORDED IN PARA 8 OF HIS ORDER AND THE FACTS ARE MENTIONED AT PAGE 13 OF THE ORDER OF LD. CIT(A) IN PARA 6. 3 IT(SS)A NO. 45/DEL/2009 3. IN THIS VIEW OF THE FACTUAL SITUATION THE DEPAR TMENTAL APPEAL WAS HEARD. AT THE TIME OF HEARING IT WAS CONTENDED BY LD. AR THAT ACCORDING TO LATEST DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. AWDESH KUMAR (TAX REPORTED 2009) (4 PG. 345) HONBL E SUPREME COURT HELD AS UNDER: - HELD: IF AN ASSESSMENT IS TO BE COMPLETED U/S 143(3) REA D WITH SEC. 158BC (INCOME TAX ACT) NOTICE U/S 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING O F BLOCK RETURN OMISSION ON THE PART OF THE ASSESSING AUTHO RITY TO ISSUE NOTICE U/S 143(2) CANNOT BE A PROCEDURAL IRRE GULARITY AND THE SAME IS NOT CURABLE AND THEREFORE THE REQ UIREMENT OF NOTICE U/S 143(2) CANNOT BE DISPENSED WITH. IN THIS CASE THE INCOME TAX APPELLATE TRIBUNAL WHIL E AFFIRMING THE DECISION OF THE CIT(A) HAD SAID NON-I SSUE OF NOTICE U/S 143(2) OF THE ACT IS ONLY A PROCEDURAL I RREGULARITY AND CURABLE. IT WAS OVERTURNED BY THE GUWAHATI HIG H COURT. AGAINST IT THE REVENUE DEPARTMENT HAD FILED SIX AP PEALS IN THE APEX COURT. THE DEPARTMENT HAD MAINTAINED THAT SINCE THE PROVISIONS INCORPORATED IN THE CHAPTER XIV B (R ELATED TO BLOCK ASSESSMENT) CONSTITUTE A SPECIAL CODE TO ASSE SS THE UNDISCLOSED INCOME IN SEARCH CASES THEY WOULD OVER RIDE THE PROVISIONS OF CHAPTER XIV THE PROCEDURE FOR NORMAL ASSESSMENTS. REJECTING THE PLEA OF DEPARTMENT THE APEX COURT SA ID: HAD THE INTENTION OF THE LEGISLATURE WAS TO EXCLUDE THE PROVISIONS OF CHAPTER XIV OF THE ACT THE LEGISLATURE WOULD HA VE OR COULD HAVE INDICATED THAT ALSO. 4. RESPECTFULLY FOLLOWING THE AFOREMENTIONED DECISI ON OF HONBLE SUPREME COURT AFTER HEARING BOTH THE PARTIES WE D ECLINE TO INTERFERE IN THE ORDER OF CIT(A) AS IT COULD NOT BE SHOWN BY THE DEPARTMENT THAT FACTS 4 IT(SS)A NO. 45/DEL/2009 RECORDED IN THE ORDER OF CIT(A) REGARDING DATE OF F ILING OF RETURN AND DATE OF ISSUE OF NOTICE U/S 143(2) ARE INCORRECT. THERE FORE FINDING NO MERIT IN DEPARTMENTAL APPEAL THE SAME IS DISMISSED. 5. IN THE RESULT THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.03.2010 (G.E. VEERABHADRAPPA) VICE PRESIDENT (I.P. BANSAL) JUDICIAL MEMBER DATED: 12.3.2010 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR