D.b.income Tax Appeal v. The Commissioner Of Income Tax, Kota

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPUR D.B.INCOME TAX APPEAL NO. 140 / 2005 Smt. Pushpa Devi W/o Shri Kailash Chand Garg aged about 43years, R/o Hira Lal Ki Mill, Chuli gate bazaar, Gangapur City. ----Appellant Versus The Commissioner of Income Tax, Kota. ----Respondent __________________________________________ For Petitioner :Mr Sanjay JhanwarFor Respondent :Mrs. Parinitoo Jain __________________________________________ HON'BLE MR. JUSTICE K. S. JHAVERIHON'BLE MR. JUSTICE DINESH MEHTAJudgment / Order Per08/12/2016 1.By way of this appeal, the appellant has challenged thejudgment and order passed by the Tribunal whereby theTribunal has partly allowed the appeal of the department aswell as the cross objection filed by the assessee. 2.The facts of the case are that a retrun of income was filedon 31.03.2000 declaring income at Nil. The return wasprocessed u/s 143(1) on 25.04.2001. Shri Kailash Chand Garghusband of the assessee Was dealing in the business of cloth atGangapur City. A survery u/s 133A of the I.T. Act wasconducted on 20.01.2000at the business permises of ShriKailash Chand Garg, husband of the assessee. During the course of survey, an agreement to sale deed dated 28.07.96,regarding purchase of plot in the name of Smt. Pushpa Deviwas found in which, sale consideration was shown at Rs.41,000/-. During the course of survey the assessee’s husbandstated that actual sale consideration is Rs. 2,11,000. Furtherthe assessee’s husband stated that the plot situated in “HeeraLal Ki Mill” was purchased for Rs.2,11,000/- as againstRs.41,000/- and also invested Rs. 8 lakhs in construction ofhouse in the Financial year 1998-99, 99-2000. Shri KailashChand surrendered the below mentioned amount for taxation inthe hand’s of his wife Smt. Pushpa Devi. Smt. Pushpa Devi alsoaccepted the surrender and given separate declaration ofsurrender of above amounts for taxation vide her letter dated20.1.2000. 3.This Court on 23.01.2006 while admitting the appeal hasframed the following substantial question of law: “Whether notice u/s 143(2) can be issued after theexpiry of 12 months from the end of the month in whichreturn was filed and whether, if the notice has beenissued after the expiry of the said period, theconsequential assessment would not be illegal andvoid?” 4.The above issue is covered by the decision of theSupreme court reported in (Assistant Commissioner of IncomeTax & Anr. Vs. Hotal Blue Moon) [2010] 321 ITR 362 and alsoby the same the Gujarat High Court reported in case of(Commissioner of Income Tax Vs. Gujarat Foils Ltd.) [2015]377 ITR 0324 (Guj) & in case of (Deputy Commissioner of Income Tax Vs. Maxima Systems Ltd.) [2012] 344 ITR 0204. 5.That a perusal of factual matrix reveals that in the presentcase, the assessee had filed original return of income on31.03.2000 and later on filed return pursuant to notice u/s 148on 30.04.2002, where as the AO has issued notice u/s 143(2)on 21.03.2003. As such the notice in question is ex faciebeyond the prescribed period of limitation of 1 year and theAssessment Order dated 23.03.2003. 4.Counsel for the respondent has contended that he is notin a position to dispute the same. Therefore, the issue isanswered in favour of the assessee and against thedepartment. 5.The appeal stands allowed. (DINESH MEHTA)J. (K. S. JHAVERI)J. MohitR77