ELECTROCOAT SURFACE COATING SYSTEMS PVT. LTD.,PUNE vs. DEPUTY COMMISSIONER OF INCOME-TAX,

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.

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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.

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.

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.

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.

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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.

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

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in favour of the assessee and thereby setting-aside the order of Ld. CIT(Appeals).

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