TMI Blog2012 (5) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) is dated 10.10.2004 and the same was served on the assessee on 19.10.2004 fixing the date of hearing on 16.12.2004. When going through the order sheet entry, which is taken by assessee from the assessment records clearly reveals that factually notice u/s. 143(2) was first time issued on 18.10.2004 and not on 10.10./2004. Thus we quash the issuance of notice u/s. 143(2) of the Act and subsequent assessment framed u/s. 143(3) of the Act. Appeal of assessee is allowed. - I.T.A No. 1426/Kol/2011 - - - Dated:- 21-5-2012 - Pramod Kumar (Accountant Member) And Mahavir Singh (Judicial Member) For the Appellant : Ratan Kumar Goel For the Respondent : A. K. Maitra ORDER Mahavir Singh (Judicial Member) This appeal by assessee is arising out of order of CIT(A)-VI, Kolkata in Appeal No. 1378/CIT(A)-VI/Wd-4(3)/09-10/Kol dated 19.08.2011. Assessment was framed by ITO, Ward- 4(3), Kolkata u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) for Assessment Year 2003-04 vide his order dated 31.03.2006. 2. The first legal issue raised by assessee in this appeal is against the order of CIT(A) in upholding the selection of his case under scruti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case falls under the following paras: Cases not falling in the above categories and where the Assessing Officer is of the opinion that scrutiny is required for specific reasons, viz., cases of builders/contractors following project completion method to declare their income, cases where there is prima facie evidence of dividend/bonus stripping, etc. may be selected for scrutiny after recording the reasons in writing and with prior approval of CCIT concerned. The process of selection of cases for scrutiny for returns filed up to 31-3-2004 must be completed by 15-10-2004. For returns filed during the current financial year 2004-05, the selection of cases for scrutiny will have to be completed within 3 months of the date of filing of the return. All returns filed in response to notice issued under section 148 will be selected for scrutiny. In addition to the above, returns processed on AST will be selected through a Computer Assisted Scrutiny System (CASS). The selection criteria will be determined by the Board and the process, which will be run by the Central System, will be completed in the first week of October, 2004 Instruction No.9/2004, Dated 20.9.2004. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive action. The assessee has not taken objection regarding the issuance of notice before the Assessing Officer and has submitted to his jurisdiction. There was no attendance by the assessee for hearing on 9th November, 2005, 28th November, 2005 and 6th December, 2005 while the case was getting time barred in March, 2006. It was only after issuance of a penalty notice that the A.R. of the assessee attended the proceedings. The facts of the case are distinguishable from the case of DCIT vs. Sunita Finlease Ltd. 21st October 2011 330 ITR 491 (Chhattisgarh) cited by the assessee. In the present case as mentioned in the assessment order notice u/s 143(2) was issued on 10 th October, 2004 whereby it means that the case was selected for scrutiny before 15 th October, 2004 as required vide the instruction no. 9/2004 on 20 th September, 2004. It is only the entry in the order sheet which was done on 18th October, 2004; there is a possibility that instead of issued notice the assessing officer may have written issue notice, it appears to be a mistake while writing the order-sheet. It is also not clear whether the order- sheet had been written by the Assessing Officer himself or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of selection of cases for scrutiny for returns for a particular financial year and allowing time of three months for completion of the same cannot be considered to override or detract from the provisions of the Act. It only directs that the above exercise should be completed within three months of the date of filing of return by the assessee, which amounts to an assurance to the assessee that the return filed by him can be scrutinised by the Assessing Officer within three months of filing of the return. The Hon ble High Court, dismissing the appeal held that Instruction No. 9 of 2004 dated September 20, 2004, was applicable in the present case, in view of the specific stipulation in the circular that for returns filed during the current financial year 2004-05, the selection of cases for scrutiny will have to be completed within three months of the date of filing the returns and considering that the return had admittedly, been filed by the assessee on October 29, 2004, i.e., during the current financial year 2004-05. The selection for scrutiny of the assessee s case and completion of the assessment was not valid. 6. We find that the Hon ble Chhatishgarh High Court in Sunita ..... X X X X Extracts X X X X X X X X Extracts X X X X
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