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TMI Blog2011 (8) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue by the Tribunal - We however refrain from doing so in the hope that such indiscretion would not be repeated in future and also in view of the letter of apology filed by the revenue - Find no merits in the case sought to be pleaded by the Revenue and therefore dismiss the miscellaneous applications. - M.A. No. 240/Mum/2010 - - - Dated:- 30-8-2011 - J. Sudhakar Reddy, R.S. Padvekar, JJ. Virendra Ojha, D. Songate and Shantam Bose for the Appellant P.J. Pardiwala, Nitesh Doshi and Indira Anand for the Respondent ORDER J. Sudhakar Reddy: The circumstances under which the present M.A. arises for consideration by the Tribunal are as follows: 2. The Assessee is a partnership firm. It is engaged in the business of trading of diamonds. The Assessee is also engaged in export of diamonds. There was a search and seizure operation conducted u/s.132 of the Income Tax Act, 1961 (the Act) on 17.1.2000 in the case of the Assessee. A notice dated 14.6.2000 was issued by the AO under the provisions of Sec.158BC of the Act, calling upon the Assessee to file return of income for the Block period. On 19.7.2000, the Assessee filed a return of income for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y appeal. When this plea was raised by the learned counsel for the Assessee, the question whether the date of notice u/s.143(2)/142(1) of the Act mentioned as 15.10.2000 in the order of assessment is correct or not came up for consideration. As already mentioned, the correct date of issue of notice u/s.143(2) of the Act according to the Asssessee was 15.10.2001 and there was a typographical error in mentioning the said date in the order of assessment as 15.10.2000. 5. The Tribunal gave it's finding on the above issue in para 8 to 12 of its order dated 23rd March, 2010 and came to the conclusion, based on the admission of the concerned assessing officer in a letter, that the correct date of issue of notice u/s.143(2) of the Act was 15.10.2001 and there was a typographical error in mentioning the said date in the order of assessment as 15.10.2000. The relevant findings of the Tribunal were as follows: "8. The letter dated 18/5/2009 written by CIT, DR to the ACIT, Cen.Cir.11 reads as under:- "No. CIT(DR)/ITAT/G-Bench/2009-10 Date:18th May, 2009 To The Asstt. Commissioner of Income Tax, Central Circle 11, Mumbai. Sub:-Departmental Appeal in the case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had disclosed only Rs.15.00 lakhs under the block return filed by it, whereas the AO assessed u/s. 158 BC(c) the undisclosed income at Rs. 4.71 crores. The assessee's counsel has taken a plea before the Bench that since the notice u/s. 143(2) was issued only on 15/10/2001 i.e. after the lapse of more than one year from the date of filing of block return on 19/07/2000, the entire block assessment order is time barred, as held by High Courts. A report was called for from the AO by my predecessor in this connection. The AO has reported that the notice u/s. 143(2) was issued by him only on 15/10/2001. He has not mentioned whether before the transfer of the case records to him, his predecessor AO i.e. JCIT Spl.Range - 48, has issued any notice u/s. 143(2) or not/He has also not enclosed the copy of the complete order sheet notings, although asked to do so by my predecessor CIT(DR). This report of AO is in sharp contrast to his recording on the assessment order at page no.2 para no.5 that notices u/s. 143(2)/142(1) dated 15/10/2000 have been issued and served. If the actual date of notice is 15/10/2000 the department's case survives. If the actual date is 15/10/2001, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 144 and section 145 shall, so far as may be, apply". This indicates that this clause enables the Assessing Officer, after the return is filed, to complete the assessment under section 143(2) by following the procedure like issue of notice under section 143(2)/142. This does not provide accepting the return as provided under section 143(1)(a) : the officer has to complete the assessment under section 143(3) only. If an assessment is to be completed under section 143(3) read with section 158BC, notice under section 143(2) should be issued within one year from the date of filing of the block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be a procedural irregularity and is not curable. Therefore, the requirement of notice under section 143(2), within the prescribed period cannot be dispensed with. 7. In view of the aforesaid ruling of the Hon'ble Supreme Court, the Tribunal dismissed the appeal of the Revenue, without going into any other issues raised by the Revenue in its appeal. The result of such dismissal of the revenue's appeal was that the order of the AO as modified by the order of CIT(A) would still hold good and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of one year from the end of the month in which the return of income was filed by the Assessee. b) In support of the submission on behalf of the Assessee, two decisions of the Hon'ble Bombay High Court were cited but copies of those judgments were not furnished to the Departmental Representative. c) The Departmental representative had submitted before the Tribunal at the time of hearing of the appeal that since the Asssessee has raised a new issue verbally, the Assessee should furnish written submission with relevant case laws cited before the Bench so that the Departmental Representative can give his comments on the same. d) On such submission, the Bench directed the parties to file written submissions and treated the case as heard. e) The Departmental representative could file his written submissions only if the Assessee files his written submissions. The Assessee's written submission dated 4.3.2010 was given to the D.R. only on 9.3.2010. f) On 23.3.2010, the departmental representative sought to file written submissions on the new issue raised by the Assessee as well as on merits of the appeal but the same was not accepted by the Bench Clerk. Thereupo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised before him as it had not been raised before the AO in the course of assessment proceedings. Further, before the Tribunal this issue was raised by the Assessee in the course of the hearing on 12.05.2009, 29.06.2009, 18.8.2009 and 20.10.2009 i.e. on 4 occasions before the date of final hearing on 02.03.2010. On those occasions the hearing was adjourned for the Revenue to obtain appropriate instructions from the AO as to the date of service of the notice under section 143(2). c) The CIT (DR) has claimed that the date of 15.10.2000 as the date of issue of notice under section 143(2) of the Act by referring to para 5 on page 3 of the assessment order. The dated 15.10.2000 mentioned as date of service of notice u/s.143(2) of the Act in the order of assessment is clearly a case of typographical error and the actual date of issue of said notice is 15.10.2001. In this regard the Assessee's Counsel had produced the original notice before the Tribunal in the course of hearing. This fact has also been confirmed by the AO by his letter dated 25.06.2009 addressed to the CIT(DR) reproduced in para 9 at page 4 of the Tribunal's order. It was also pointed out that apart from alleging that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits of the additions/disallowances as the same would be academic and of no consequence. g) It was also submitted that the DR has also erred in observing that the Tribunal could not have decided the issue without consulting the assessment records or obtaining written submissions from the department. In this regard it was pointed out that the letter dated 25.06.2009 from the AO to the DR to the effect that the only notice issued under section 143(2) was dated 15.10.2001 proves beyond doubt that no further factual verification was required in the matter. 15. At the time of hearing of the M.A. the Lr.D.R. Mr.Songate, reiterated the stand of the Revenue as reflected in the letters of the D.R. referred to earlier. After the hearing of the matter, the ld. D.R., Shri Ajit Kumar Sinha, filed the following letter dated 05-07-2010 which is extracted below for ready reference: "From, Dated....5/7/10. Ajit Kumar Sinha CIT (DR), 'C' Bench, ITAT, Mumbai. To, The Hon'ble Members 'G' Bench Income Tax Appellate Tribunal Mumbai. Sirs, Sub:- Written submissions in the case of Simoni Gems, in ITA(SS) 747/m/03 Case heard on 02/03/2010-MA 240/M/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions on the preliminary issue only. At the request of the D.R., one week's time was granted for filing written submissions. The assessee files written submissions dated 4.3.2010 on 08- 03-2010. The DR also received a copy of the said written submissions on 09- 03-2010. He should have filed his written submissions by 9.3.2010 or after receiving the submissions of the assessee, latest by 15/16-03-2010. The Tribunal waited for one more week and only on 23-03-2010 disposed of the appeal in the absence of receipt of any written submissions from the Revenue, as the file was self-contained and in the opinion of the bench, no further material was required to decide the prelimnary issue. The facts available on record amply demonstrate that notice u/s.143(2) in this case was not issued within 12 months from the date of filing of the block return of income. This position is admitted in writing by the Assessing Officer. The correspondence between the D.R. and the AO is brought out in the impugned Tribunal order dated 23-03-2010. On this factual position, the statement of the D.R. in the last line of para 2 of petition dated 24-03-2010 is contrary to facts. It is totally wrong t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of earlier occasions when the matter came up before the Bench. Being a very important preliminary issue the tribunal was bound to consider it. The DR was very much present in Court and was aware of the stand of the Assessee and case laws relied upon by the ld. counsel for the Assessee. He had also opposed the contention on the date of hearing. Nothing prevented him from making his submissions within a reasonable time. The case laws cited were also read out in the Court by the Sr. Advocate during the course of hearing. Copies of reported decisions are not, as a matter of convention, given to the other side. 21. In the letter dated 25-03-2010, which is in continuation of the letter dated 24-03-2010, the DR states that the order of the Tribunal would be an ex parte order. The DR has not understood what is an ex parte order. When the learned Departmental Representative is heard and also given time to file written submissions, how can the order be an ex-parte. The D.R again refers to the time limit for giving written submissions as well as his view that the assessee has raised a new issue. Here, we find that the D.R. is misleading and making false statement before the Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as "It is also against any of the legal precedents ever heard of" etc. were made. This only shows the lack of understanding of the learned Departmental Representative and his attitude not to bring a truth before the Bench. 23. With regard to the statement of the D.R. that the Bench allowed the respondent to speak first, though it is the Revenue's appeal, we do not find anything wrong with such procedure. The counsel for the Assessee raised a preliminary objection at the start of the hearing by invoking Rule 27 of the ITAT Rules and when the issue so raised goes to the very jurisdiction of the AO to make assessment, the same has to be gone into at the outset. When such issues are raised, the Bench is duty bound to hear the same and it is unfortunate that the D.R. does not understand such basic practice in proceedings before Tribunal. The jurisdictional issue have to be addressed first and then only merits. The learned Departmental Representative wants the bench to hear him on merits, though from the record, it is obvious that the assessment is bad in law as the Assessing Officer did not follow the mandate laid down in Sec.143(2) of the Act. 24. We now deal with the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the facts as emerging from the records. It is admitted that the appellant did not raise these objections throughout the course of assessment proceedings before the A.O. and complied with all notices and consequent procedures voluntarily. That being so, the present ground of appeal becomes of the nature of a mere after thought and, whatever be the merit of the contentions, deserves to be rejected for that reason alone. It was held by the jurisdictional Bombay High Court in the case of Rameshchandra and Company vs. CIT (168 ITR 375) that where additions are made on the basis of the assesses own admission, they cannot be questioned in appeal. By analogy, where the appellant has voluntarily complied with provisions and procedures of the Act without any protest, he loses the right to take up the issue in appeal. Accordingly, this ground of appeal fails and is dismissed." 27. In the light of the above order of the CIT(A), it is not open to the D.R. to submit that the issue sought to be raised by the Assessee was a new issue. In para-2.4.3 and 2.4.4 of the written submission, the D.R. has submitted that the ground regarding validity of the order of assessment on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the D.R. in para 2.4.8 and the further submissions in para 2.4.9 are without any merit. 30. The submissions made in para 2.5 of the written submission are absolutely without any merit. The sum and substance of the argument raised in that paragraph is that a new plea cannot be raised for the first time before the tribunal unless facts necessary for adjudication of such new plea are already on record. We are of the view that the question whether notice u/s.143(2) of the Act was served within a period of 12 months from the end of the month in which the return of income was filed by the Assessee is a matter of record. In fact, the AO himself has admitted that such notice was not served within the time allowed in law. The issue, again at the cost of repetition, is not a new issue as presumed by the D.R. as the issue has been examined and adjudicated by the CIT(A). It is therefore futile on the part of the D.R. to make submissions on erroneous presumptions and assumptions. 31. The D.R., in our humble opinion, was unable to understand the judgment of the Hon'ble Bombay High Court in the case of B.R. Bamasi v.CIT (83 ITR 233). When the Hon'ble Court in its order clearly states th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional ground had been raised in an assessee's appeal. 33. Further, on going through the detailed written submissions and thereafter the petition made by the ld. D.R., we are of the opinion that the ld. D.R. has not bothered to read the order of the Tribunal. The least an officer is expected to do before filing a miscellaneous petition, is that the order of the Tribunal has to be read. The various statements made in the petition are totally against and contrary to the observations and conclusions in the order. When the ld. Sr. counsel states that he is relying on Rule 27 for the limited purpose of dismissal of the Revenue's appeal and not seeking any further relief in view of the observations of the jurisdictional High Court in the case of B.R. Bamasi (supra), the D.R. was unable to understand this submission and goes on to write that the acceptance of the argument of the Sr. counsel would result in cancellation of the assessment itself and the return of income filed by the assessee will become nullity. This submission is contrary to the order of the Tribunal where it is held that the order of the Assessing Officer as confirmed by the learned CIT(A), stands and the only effect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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