Sh. Inderpal Singh, Jalandhar V. The Asstt. Commissioner of Income-tax, Jalandhar

CO 22/ASR/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9215 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-01-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 09-07-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: J S BHASIN
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.33(ASR)/2012 ASSESSMENT YEAR:2006-07 PAN :AGFPP8315C ASSTT. COMMR. OF INCOME TAX VS. SH. INDER PAL SINGH , CENTRAL CIRCLE-1, 29, LINK ROAD, JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) C.O. NO.22(ASR)/2012 (ARISING OUT OF I.T.A. NO.33(ASR)/2012) ASSESSMENT YEAR:2006-07 PAN :AGFPP8315C SH. INDER PAL SINGH, VS. ASSTT. COMMR. OF INCOME TA X 29, LINK ROAD, CENTRAL CIRCLE-1, JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) ASSESSEE BY: SH.J.S.BHASIN, ADVOCATE DEPARTMENT BY: SH.AMRIK CHAND, DR DATE OF HEARING: 15/01/2014 DATE OF PRONOUNCEMENT:30/01/2014 ORDER PER BENCH ; ITA NO.33(ASR)/2012 CO NO.22(ASR)/2012 2 THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F THE CIT(A), JALANDHAR, DATED 16/11/2011 RELATING TO ASSESSMENT YEAR 2006-07. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND O N FACTS OF THE CASE IN DELETING THE ADDITION OF RS.16,92,000/- MAD E BY THE A.O. ON ACCOUNT OF IMPUGNED GIFTS RECEIVED BY THE A SSESSEE FROM HER MOTHER. 2. THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.13,00,000/- MAD E BY THE A.O. U/S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CA SH CREDITS IN RESPECT OF BANK A/C NO.1024B MAINTAINED BY THE ASSE SSEE IN LUDHIANA CENTRAL CO-OP. BANK LTD. 3. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE G ROUNDS OF APPEAL ON OR BEFORE THE APPEAL IS HEARD AND DISPOSE D OFF. 4. IT IS PRAYED THAT THE ORDER OF THE CIT(A) BE SET AS IDE AND THAT OF THE AO BE RESTORED. 2. THE ASSESSEE HAS ALSO FILED C.O.NO.22(ASR)/2012 RAISING THEREIN FOLLOWING GROUNDS: 1. THAT THE ORDER OF THE AO OUGHT TO HAVE BEEN QUA SHED AS AB- INITIO VOID AS IT WAS PREMATURELY PASSED ON 29.12.2 008 WHEN THE PROCEEDINGS CONTINUED UPTO 31.03.2008. 2. THAT THE LD. CIT(A), DEALING WITH ADDITIONAL GRO UND OF ASSESSEE, OUGHT TO HAVE HELD THE IMPUGNED ORDER AS TIME BARRED IN TERMS OF TWIN PROVISOS INSERTED SIMULTANEOUSLY BY THE FINANCE ACT,2005 W.E.F. 01.06.2003 TO SECTION 153C( 1) AS WELL AS TO SECTION 153B(1). 3. THAT THE ORDER UNDER APPEAL TO THE EXTENT DISPUT ED ABOVE, IS AGAINST LAW AND FACTS OF THE CASE. ITA NO.33(ASR)/2012 CO NO.22(ASR)/2012 3 3. THE ASSESSEE HAS NOT PRESSED GROUND NO.2 OF ITS C.O. AND ACCORDINGLY, THE SAME IS DISMISSED AS NOT PRESSED. 4. THE LD. DR HAS RAISED PRELIMINARY OBJECTION THAT THE C.O. OF THE ASSESSEE HAS BEEN FILED LATE BY 60 DAYS AND ACCORDI NGLY THE SAME SHOULD NOT BE ADMITTED. 5. THE ASSESSEE HAS FILED THE PETITION FOR CONDONAT ION OF DELAY, WHICH IS REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: 1. THAT THE (RESPONDENT) ASSESSEE FIRM HEREIN, FIL ED A CROSS OBJECTION ON 09.07.2012 TO THE INCOME TAX APPEAL FI LED BY THE DEPARTMENT AGAINST THE ORDER OF LD. CIT(A)-1, LUDHI ANA DATED 16.11.2011. WHILE THE REVENUES APPEAL HAS BEEN LI STED AS ITA NO.33/ASR/2012, THE ASSESSEES CO HAS BEEN LISTED A S CO NO.22(ASR)/2012. 2. THAT THE TRIBUNALS COMMUNICATION DATED 05.04.20 12, FORWARDING COPY OF APPEAL MEMO FILED BY THE REVEN UE, WAS RECEIVED AT ASSESSEES END ON 10.04.2012. HOWEVER, THE ASSESSEE, SWAYED BY THE IMPRESSION THAT THE LD. CI T (A) HAD SINCE DELETED ALL THE ADDITIONS MADE IN ASSESSMENT , FELT NO URGENCY IN HANDING OVER THE ABOVE COMMUNICATION TO HIS COUNSEL AND KEPT IT AT HOME. 3. HOWEVER, AFTER THE NOTICE FOR HEARING OF THE ABOVE MATTER WAS RECEIVED BY ASSESSEE, HE TRACED OUT THE ABOVE INTIM ATION, AND LEFT IT WITH HIS COUNSEL. SINCE TWO LEGAL ISSUES RA ISED BEFORE THE LD. CIT(A), SEEKING THEREBY TO HOLD THE ORDER AB IN ITIO-VOID, WERE DECIDED AGAINST THE ASSESSEE, THOUGH THE ADDIT IONS WERE FULLY DELETED, THE ASSESSEE WAS ADVISED TO FILE A C ROSS OBJECTION TO THE ABOVE APPEAL OF THE REVENUE. ITA NO.33(ASR)/2012 CO NO.22(ASR)/2012 4 4. ACCORDINGLY, THE ASSESSEES C.O. CAME TO BE FILED O NLY ON 09.07.2012, WHICH OUGHT TO HAVE BEEN FILED ON 10.05 .2012. THUS, THERE OCCURRED A DELAY OF 59 DAYS. 5. THE DELAY UNINTENDED AND WITHOUT MALAFIDE, THE SAME IS HUMBLY PRAYED TO BE CONDONED. 6. WE HAVE CONSIDERED THE ARGUMENT MADE BY THE LD. COUNSEL FOR THE ASSESSEE AND FIND A SUFFICIENT CAUSE IN FILING THE C.O. LATE BY 60 DAYS AND ACCORDINGLY, THE SAME IS CONDONED. 7. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET A RGUED THAT THE IMPUGNED ORDER IS LIABLE TO BE QUASHED AS AB-INITIO -VOID FOR HAVING BEEN PASSED ON 29.12.2008 AS MENTIONED IN THE BODY OF TH E ASSESSMENT ORDER AS ACCOMPANIED BY THE DEMAND NOTICE THOUGH THE PROCEED INGS CONTINUED UPTO 31.12.2008 WHICH IS ADMITTED AO IN PARA 5 OF HIS OR DER ITSELF. THE LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO T HE COPY OF THE PENALTY NOTICES ISSUED ALONGWITH THE ASSESSMENT ORDER WHIC H ARE DATED 29.12.2008 AT PB 5 & 6 AND PAGE 1 OF THE ASSESSMENT ORDER. THE DATE OF ISSUANCE OF NOTICE U/S 271(1)(C) IS DATED 29.12.2008 WHEREAS TH E ORDER PASSED ON 31.12.2008 AND DATE OF HEARING WENT UPTO 31.12.2008 AS PER COLUMN NO.11 OF THE ORDER. THE RELEVANT PARA 5 OF PAGE 2 OF AOS ORDER IS REPRODUCED FOR THE SAKE OF CLARITY AS UNDER: 5. HOWEVER, ON 08.12.2008, SH. J.S. BHASIN, ADVOCA TE AND SHRI R.BHARDWAR APPEARED AND THE HEARING CONTINUED TILL 31.12.008, THE DATE WHEN SOME RELEVANT DOCUMENT WAS PRODUCED. ITA NO.33(ASR)/2012 CO NO.22(ASR)/2012 5 7.1. THEREFORE, THE LD. COUNSEL FOR THE ASSESSEE AR GUED THAT THE ORDER PASSED BY THE AO IS LIABLE TO BE QUASHED. 7.2. THE SAID ISSUE WAS RAISED BEFORE THE LD. CIT(A ) WHO UPHELD THE ORDER OF THE AO AS VALID ORDER. 8. THE LD. DR, SH. AMRIK CHAND, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE LD. CIT(A). 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ORDER OF THE LD. CIT(A) FOR THE SAKE OF CONVENI ENCE IS REPRODUCED AS UNDER: 6. I HAVE CONSIDERED THE ARS CLAIM AND THE CLARIFI CATION SUBMITTED BY THE AO ON THE ISSUE AS WELL AS THE AR S REJOINDER DETAILED ABOVE. IT IS APPARENT THAT THE AO HAS NOT BEEN ABLE TO CLEAR THE DOUBTS ARISING OUT OF CLAIM OF THE AR THAT THE PENALTY NOTICES ISSUED, CARRIED THE DATE 26.12.2008 AND THE SAME WA S OVER WRITTEN AS 29/12/2008. FURTHER, THE DATE ON THE DEMAND NOTICE IS ALSO 29/12/2008 WHICH IS NORMALLY PREPARED BY THE CLERI CAL STAFF. HOWEVER, THE INCONSISTENCY POINTED OUT BY THE AR A RE NOT GRAVE ENOUGH SO AS TO RENDER THE ASSESSMENT ORDER AS NULL AND VOID AB- INITIO. THE AO HAS TAKEN INTO CONSIDERATION THE SUB MISSIONS MADE BY THE APPELLANT EVEN ON THE LAST DATE OF HEARING AND TIME BARRING I.E. 31/12/2008. IT IS ANOTHER MATTER THAT THE EXPLANATI ON GIVEN HAD NOT BEEN ACCEPTED BY THE AO. AS SUCH THIS GROUND OF APP EAL IS DISMISSED AND THE AOS ORDER IS HELD TO BE VALID. 9.1. THERE IS NO DISPUTE TO THE FACT THAT THE NOTIC ES OF PENALTY ARE DATED 29.12.2008 (AVAILABLE AT PB 5-6) AND AOS ORDER IS DATED 31.12.2008 AND HEARING CONTINUED UPTO 31.12.2008 ALSO MENTIONED IN THE AOS ORDER AT PAGE 1-2. THEREFORE, THIS POINT REQUIRES A CLARIFICATION . RATHER THE AO HAS TO PASS ITA NO.33(ASR)/2012 CO NO.22(ASR)/2012 6 A SPEAKING ORDER ON THE ISSUE WHETHER THE ORDER OF THE AO IS DATED 31.12.2008 I.E. WHETHER THE ORDER HAS BEEN PASSED ON 31.12.2008 AND THE DATES OF NOTICES ISSUED U/S 271(1)(C) ARE NOT 29.1 2.2008 BUT 31.12.008, IF IT IS SO, THE AO WILL PASS A SPEAKING ORDER IN ACCORDA NCE WITH LAW. ACCORDINGLY, GROUNDS OF APPEAL OF THE REVENUE AND G ROUND NO.1 OF THE C.O. OF THE ASSESSEE ARE SET ASIDE TO THE FILE OF THE A .O. WITH THE DIRECTION TO DECIDE THE ISSUE AFRESH, AS DIRECTED HEREINABOVE. I N VIEW OF OUR DECISION HEREINABOVE, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES AND C.O. OF THE ASSESSEE IS PARTLY ALLOWED FOR STAT ISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IN ITA NO.33(ASR)/2012 IS ALLOWED FOR STATISTICAL PURPOSES AND C.O. NO.22 (ASR)/2012 OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH JANUARY, 2014. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30TH JANUARY, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH.INDER PAL SINGH, JALANDHAR. 2. THE ACIT, CC-1, JALANDHAR 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER