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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM & SHRI PARTHA SARATHI CHAUDHURY, JM
आदेश / ORDER
PER PARTHA SARATHI CHAUDHURY, JM :
This appeal preferred by the Assessee emanates from the order of Commissioner of Income Tax (Appeals)-1, Pune dated 31.03.2016 for assessment year 2009-10. As per grounds of appeal on record, assessee has preferred both legal ground as well as grounds on merits.
2 ITA No.1355/PUN/2016 A.Y.2009-10
First we would address legal grounds wherein it has been submitted by
assessee that since no notice was issued u/s.143(2) of the Income Tax Act,
1961 (hereinafter referred to as ‘the Act’), therefore, the assessment order
passed u/s.143(3) r.w.s.147 of the Act is bad in law and liable to be quashed.
Brief facts in this case are that the assessee-company is engaged in the
business of manufacturing of ‘custom made’ machinery. It filed its return of
income for assessment year 2009-10 on 22.09.2009 declaring total income of
Rs.3,19,44,930/-. The return was assessed u/s.143(1) of the Act. The
Assessing Officer received information from the Maharashtra Sales Tax
Department that the assessee was beneficiary of Hawala transactions.
Accordingly, notice u/s.148 of the Act was issued to the assessee on
22.03.2013 and was served on it. The Assessing Officer has recorded reasons
to believe that income has escaped assessment before issue of notice u/s.148
of the Act. Thereafter, the Assessing Officer completed the assessment
on14.03.2014 u/s.143 (3) r.w.s. 147 of the Act.
It is to this factual situation, the Ld. AR for the assessee vehemently
argued at the time of hearing that before assessment order was passed, no notice u/s.143(2) of the Act was issued to the assessee.
On the other hand, Ld. DR for the Revenue produced case records and
submitted that no notice u/s.143(2) of the Act was served on the assessee.
However, Ld. DR contended that there was no return filed by the assessee in
pursuance to notice u/s.148 of the Act and therefore, there was no need for
issuance of notice u/s.143(2) of the Act.
3 ITA No.1355/PUN/2016 A.Y.2009-10
The Ld. AR per contra vehemently submitted that the original return of
income u/s.139(1) of the Act was filed. However, there was no return filed in
pursuance to the notice u/s.148 of the Act. The ld. AR placed reliance on the
decision of Hon'ble Jurisdictional High Court in the case of CIT-10, Mumbai
Vs. Ms.Malvika Arun Somaiya [2010] 2 taxmann.com 144 ( Bombay) where
the facts are similar to the present case of the assessee, wherein the assessee
has not filed any fresh return in response to the notice u/s.148 of the Act.
The Assessing Officer had passed order of assessment. The Tribunal held that
notice u/s.143(3)(2) ought to have been served upon assessee before taking
any further proceedings and therefore, order of assessment was in violation of
statutory provisions. The findings of the Tribunal were upheld by the Hon'ble
Bombay High Court in favour of the assessee.
We have perused the case records and heard the rival contentions on
the legal grounds. We find that the case of the assessee is squarely covered by
the decision of Hon'ble Bombay High Court in the case of CIT-10, Mumbai Vs.
Ms.Malvika Arun Somaiya (supra.) where also, the original return was filed by
assessee. However, in response to the notice u/s.148 of the Act, no return
was filed. The Assessing Officer did not issue notice u/s.143(2) of the Act
before taking any further proceedings u/s.148 of the Act. It was held by the
Tribunal that such notice u/s.143(2) of the Act ought to have been served
upon the assessee before taking any further proceedings and therefore, order
of assessment was in violation of statutory provisions. This finding of the
Tribunal was upheld by the Hon'ble Bombay High Court.
We, therefore, respectfully following the aforesaid judgment of the
Hon'ble Bombay High Court, answer the legal grounds raised by the assessee
4 ITA No.1355/PUN/2016 A.Y.2009-10
in favour of the assessee and thereby setting-aside the order of Ld. CIT(Appeals).
Since we have answered the legal grounds in favour of the assessee, grounds on merits become academic.
In the result, appeal of the assessee is allowed.
Order pronounced on 1st day of January, 2019.
Sd/- Sd/- D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER
पुणे / Pune; �दनांक / Dated : 1st January, 2019. SB
आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to :
अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(Appeals)-1, Pune. 4. The CIT-1, Pune. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “बी” ब�च, 5. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 6.
// True Copy // आदेशानुसार / BY ORDER,
�नजी स�चव / Private Secretary आयकर अपील�य अ�धकरण, पुणे / ITAT, Pune.
5 ITA No.1355/PUN/2016 A.Y.2009-10
Date 1 Draft dictated on 31.12.2018 Sr.PS/PS 2 Draft placed before author 01.01.2019 Sr.PS/PS 3 Draft proposed and placed JM/AM before the second Member 4 Draft discussed/approved by AM/JM second Member 5 Approved draft comes to the Sr.PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order