Commissioner Of Income Tax vs. Ashok Kumar Agrawal

1 ITA No. 23/2009

Commissioner of Income Tax, Gwalior Vs. Shri Ashok Kumar Agrawal 01/09/2014 Shri DPS Bhadauria, Advocate for the appellant. Shri Brij Kishore Nema and Shri OP Meena, Advocates for respondent. Heard. This appeal has been filed against the order dated 20-03-2009 passed by Income Tax Appellate Tribunal, Agra Bench, Agra in IT (SS)A No.20/Agr/2003, IT (SS)A No.37/Agr/2003 and IT (SS)A No.27/Agr/2003( Annexure A-1). Learned counsel for the appellant- Revenue has fairely admitted that against similar order an appeal was filed before the Main Seat at Jabalpur and the same was dismissed by Division Bench of this Court. Copy of the order passed by Main Seat in CIT Vs. Vijay Kumar Agrawal reported in (2005) 33 ITC 336, has been produced by learned counsel for the appellant- Revenue. Learned counsel for the appellant- Revenue also admitted the fact that against the order passed by the Main Seat no SLP was filed by the Department before Hon'ble the Supreme Court. Since in the similar matter the Main Seat has decided the point and dismissed the appeal, in our opinion, it is not necessary to pass a detailed order in the present case although the appeal was admitted for final hearing on the following substantial question of law:- “1) Whether on the facts and in circumstances of the case and in law, the ITAT is justified in impliedly holding that the ITO, Chhattarpur continued to hold jurisdiction over the assessee in his individual status and therefore the assessment framed by the ACTI, Range-I, Gwalior in the case of the assessee was illegal,

2 ITA No. 23/2009 bad in law and void ab-initio for want of jurisdiction and whether such finding of the ITAT is not contrary to the material on record ? 2) Whether on the facts and circumstances of the case and in law, the ITAT is justified in allowing the assessee's appeal challenging the order under Section 263 of the Income Tax Act passed by the CIT by impliedly holding that the order under Section 263 passed by the CIT was in the case of the assessee's HUF, and as no assessment order existed in the case of the assessee's HUF, the order under Section 263 passed by the CIT is void ab initio for want of jurisdiction ?” The Main Seat has passed the following order:- “This appeal under Section 260 of the Income-tax Act is filed against the order passed by Income-tax Appellate Authority, Bench at Agra. Counsel for appellant submitted that the Tribunal committed error in quashing the order of the assessing authority as notices were not served upon the respondents and they were issued in the name of partner of M/s. Alankar Jewellers. He submitted that notice was in fact meant for the assessee in the individual capacity. Counsel for appellant then further submitted that Tribunal committed error in holding that the Commissioner of Income-tax, Gwalior had no jurisdiction to decide the appeal and Tribunal was not justified in quashing the order under section 263 on the ground that the assessment order for the block period stood merged with the order of Commissioner of Income-tax(Appeals) and in the absence of any order of assessment for the block period which could be revised by the CIT, as such no interest could be charged in the absence of assessment. Counsel for appellant further submitted that the Tribunal was not justified in quashing the order under section 263 on the ground that there was no independent order for charging interest and that charging of interest is mandatory and that the order of assessment not charging interest is erroneous. Heard on admission. Counsel for appellant has referred to the judgment in the case of Additional Commissioner of Income-tax, MP Vs. Indian Pharmaceuticals reported in 123 ITR 874. In this case question involved was whether under section 263 Additional Commissioner of Income-tax had power to

3 ITA No. 23/2009 impose penalty and whether such order is without jurisdiction or bad in law. He has referred to another judgment in the case of Addl. CIT, MP Vs. Kantilal Nathoolal Balaram reported in 125 ITR 373 where the same question was considered by the Court. He further referred to the judgment in the case of Addl. CWT, Bhopal Vs. Nathoolal Balaram reported in 125 ITR 596 wherein the question of law determined is whether order of Addl. CWT under section 25(2) of the Wealth-tax Act,195, directing the Wealth-tax Officer to make fresh assessment keeping in view the applicability of the provisions of Section 18(i)(a) of the Wealth-tax Act was bad in law. In the present case Tribunal has considered the merits of the case and has found that there was no assessment and the notice to assessee was not in his individual capacity but was served to him as a partner of M/s Alankar Jewellers. Reasoned orders have been passed by the Tribunal and we do not find any substantial question of law arise in this appeal. Appeal fails and is dismissed.” In this view of the matter, the appeal is hereby dismissed. It is further observed that if the monetary limits have fixed by Central Board of Direct Tax (CBDT) in regard to finalizing the appeal vide Circular No.9th February, 2011 be relaxed by Hon'ble the Supreme Court, the Revenue is at liberty to revive the same subsequently.

(S.K.Gangele) (S.K.Palo)

Judge Judge MKB