Shri Devi Ram, New Delhi V. ACIT, New Delhi

CO 223/DEL/2009

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 4333 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 08-01-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-12-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 04-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KISHORE
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 2165/DEL/2009 ASSESSMENT YEAR : 2005-06 ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 27(1),ROOM NO.218, D-BLOCK, VIKAS BHAWAN, NEW DELHI. VS. SHRI DEVI RAM, VILLAGE & PO SAMALKHA, NEW DELHI. C.O. NO.223/DEL/2009 (ITA NO.2165/DEL/2009) ASSESSMENT YEAR: 2005-06 SHRI DEVI RAM, VILLAGE & PO SAMALKHA, NEW DELHI. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 27(1),ROOM NO.218, D-BLOCK, VIKAS BHAWAN, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PIYUSH KAUSHIK, ADVOCATE REVENUE BY : SHRI B. KISHORE, DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER: THE APPEAL IS FILED BY THE REVENUE AND THE CROSS O BJECTION BY THE ASSESSEE. THEY ARE DIRECTED AGAINST THE ORDER OF T HE CIT (A) DATED 13 TH MARCH, 2009 FOR ASSESSMENT YEAR 2005-06. GROUNDS OF APPEA L BY THE DEPARTMENT READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN DELETING THE ADDITION OF RS.30,00,000/ - WITHOUT PROVIDED THE AO AN OPPORTUNITY TO EXAMINE THE DOCUM ENTS ITA NO.2165/DEL/2009 CO NO. 223/DEL/2009 2 PRODUCED BEFORE HIM DURING THE COURSE OF APPELLATE PROCEEDINGS IN THE CASE. THE AO WAS UNABLE TO VERI FY THE VERACITY OF THE DOCUMENT SINCE THE ORIGINALS WERE N OT PRODUCED BEFORE HIM TO EXAMINE IN BLATANT VIOLATION OF RULE 46A. THE APPELLANT CRAVES THE RIGHT TO ADD ANY OTHER GRO UND OF APPEAL. 2. THE GROUNDS OF APPEAL OF CROSS OBJECTION READ AS UNDER:- THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE ASSESSMENT ORDER DATED 24.12.2007 FRAMED U/S 14 4 BY THE DAO-41, NEW DELHI IN THE CASE OF THE ASSESSEE I S NONEST AND INVALID UNDER THE LAW SINCE THE ASSESSEE HAS ALREADY BEEN ASSESSED FOR THE SAME ASSESSMENT YEAR VIDE ORDER U/S 143(3) DATED 10.09.07 ISSUED BY THE ACIT, CIRCLE 27(1), NEW DELHI. 3. ARGUING THE CROSS OBJECTION ON BEHALF OF THE AS SESSEE, IT WAS SUBMITTED BY LD. COUNSEL OF THE ASSESSEE THAT THE CAPTIONED A SSESSEE HAS ALREADY BEEN ASSESSED BY THE AO VIDE ASSESSMENT ORDER DATED 10 TH SEPTEMBER, 2007 IN THE NAME OF JAGDEV SHARMA AND SUCH FACT WAS BROUGHT TO THE NOTICE OF CIT (A) AND IT WAS CONTENDED THAT THE ASSESSMENT ON THIS GROUND SH OULD BE HELD INVALID AS THERE COULD NOT BE ANY MULTIPLICITY OF THE ASSESSM ENTS. HE, IN THIS REGARD, REFERRED TO THE ORDER OF CIT (A) IN WHICH SUCH CONT ENTION WAS TAKEN AND WHICH IS RECORDED IN THE ORDER OF THE CIT (A) IN THE FOLLOWI NG WORDS:- THE A.O. ON THE BASIS OF INFORMATION OF CIB ALLEGI NG THAT PROPERTY WORTH OF RS.30 LACS WAS SOLD BY THE ASSESSEE IN THE PREVIOUS YEAR 2004-05 RELEVANT TO THE ASSESSMENT YEAR 2005-06, WH EREAS NO SUCH PROPERTY HAS BEEN SOLD BY THE ASSESSEE. NO SA LE DEED OF ANY SORT WAS CONFRONTED OR SENT TO THE ASSESSEE ON THE BASIS OF WHICH THE LD. AO RELIED AND PASSED THE ASSESSMENT ORDER T HAT ASSESSEE HAS SOLD THE PROPERTY. THE ASSESSEE IS A REGULAR INCOME TAX ASSESSEE, FILI NG HIS RETURN REGULARLY AND HIS ASSESSMENT HAS BEEN PASSED U/S 14 3(3) IN THE NAME OF SH. JAGDEV SHARMA WITH A.O., DCIT, CIRCLE-2 7(1) HAVING PAN NO. ABBPS8562R. THE LD. AO WITHOUT ANY CONCRET E ITA NO.2165/DEL/2009 CO NO. 223/DEL/2009 3 EVIDENCE AND ENQUIRY HAS PASSED THE ASSESSMENT ORDE R IN THE NAME OF DEVI RAM WHEREAS THERE IS NO DEVI RAM IN TH E VILLAGE AND POST SAMALKHA, DELHI AND IF ANY DEVI RAM IS THERE H E IS NOT THE APPELLANT. THE PHOTOCOPY OF THE ASSESSMENT ORDER P ASSED U/S 143(3) IN THE NAME OF SH. JAGDEV SHARMA FOR A.Y. 20 05-06 IS ALSO ENCLOSED. 4. HE SUBMITTED THAT COPY OF SUCH ASSESSMENT ORDER WAS ALSO PLACED BEFORE THE LD. CIT (A), WHO HAD SENT THE SAME TO THE AO IN TERMS OF RULE 46A(3) OF IT RULES, 1962 AND THE AO HAS SUBMITTED HIS REPORT AS UNDER:- IN THE SAID CASE, THE ASSESSEE WAS REQUESTED TO AP PEAR ON 15.01.2009. HOWEVER, HE SOUGHT AN ADJOURNMENT TILL 19.01.2009. ON THAT DAY, THE AR OF THE ASSESSEE APPEARED AND SU BMITTED THAT THE ASSESSEE HAS NOT MADE ANY SALE OF LAND DURING T HE RELEVANT A.Y. THE FILER OF THE AIR INFORMATION IN THE SAID CASE, THE SUB- REGISTRAR IX, KAPASHERA, WAS REQUESTED TO PROVIDE A COPY OF THE SALE DOCUMENT ON THE BASIS OF WHICH THE INFORMATION WAS REPORTED. HE HAS PROVIDED A COPY OF THE AGREEMENT TO SELL DT. 3.12.2004, WHEREIN IT IS SENT THAT SH. DEVI RAM, ALIAS SH. JAG DEV SHARMA HAS SOLD LAND FOR A CONSIDERATION OF RS.74,00,000/-. C OPY OF THE SAME IS ENCLOSED. 5. IT WAS SUBMITTED THAT WHILE DECIDING THE LEGALIT Y OF THE ASSESSMENT, LD. CIT (A) HAS THOUGH RECORDED THE CONTENTIONS OF THE ASSESSEE AND HAS ALSO GIVEN A FINDING IN THE FOLLOWING WORDS, THEREFORE, IT SHO ULD BE TAKEN THAT HE HAS ANNULLED THE ASSESSMENT AS WELL AS DECIDED THE CASE IN FAVOU R OF THE ASSESSEE ON MERITS:- (VI) THE PERUSAL OF THE SALE DEED REVEALS THAT THE SALE HAS BEEN MADE IN THE NAME OF SH. DEVI RAM ALIAS SH. JAG DEV SHARMA WHICH ALSO IMPLIES THAT SH. DEVI RAM AND SH. JAGDEV SHARMA ARE THE SAME PERSON. (VII) THE PERUSAL OF THE ASSESSMENT ORDER U/S 143(3 ) PASSED BY DCIT, CIRCLE 27(1), DELHI ON 10.09.2007 FOR A.Y. 20 05-06 REVEALS THAT SH. JAGDEV SHARMA IS ALREADY ASSESSED TO TAX B Y DCIT, CIRCLE 27(1), DELHI AND HIS PERMANENT ACCOUNT NO. I S ABBPS8562R. THIS INDICATES THAT SH. DEVI RAM ALIAS SH. JAGDEV SHARMA IS KNOWN AS SH. JAGDEV SHARMA IN ACCORDANCE WITH THE RECORDS OF THE INCOME TAX DEPARTMENT. ITA NO.2165/DEL/2009 CO NO. 223/DEL/2009 4 6. AS AGAINST SUCH CONTENTION OF LD. AR, IT IS THE CASE OF LD. DR THAT THOUGH THE CIT (A) HAS RECORDED HIS CONTENTION, BUT HE HAS NOT GIVEN A SPECIFIC FINDING ON THE SUBJECT THAT WHETHER THE ASSESSMENT IS INVAL ID ON THIS GROUND AND, THUS, HE REQUESTED THAT IT WILL BE IN THE INTEREST OF JUS TICE IF THE MATTER IS RESTORED BACK TO THE FILE OF AO WITH THE DIRECTION TO CONFIRM THE FACTUAL ASPECT OF THIS MATTER AND THEN TO DECIDE THE MERITS OF THE CLAIM. 7. IN A REJOINDER LD. AR SUBMITTED THAT ONCE THE AS SESSEE HAS BEEN ASSESSED, THEN, AGAIN THE ASSESSMENT CANNOT BE FRAM ED AND IT WILL BE A CASE OF MULTIPLICITY OF THE ASSESSMENT AND, FOR THIS PURPOS E, HE RELIED ON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DHAMPUR SUGAR MILLS LTD.170 ITR 449 (ALL). 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. THE LEGAL ISSUE GOES TO THE ROOT OF THE MERIT AND HAS TO BE DECIDED FIRST AS IS RAISED IN THE CROSS OBJEC TION FILED BY THE ASSESSEE. IT IS CLEAR FROM THE ORDER OF THE CIT (A) THAT HE HAS NOT GIVEN THE FINDINGS AS TO THE VALIDITY OR OTHERWISE OF ASSESSMENT PROCEEDINGS ON THE GROUND THAT THE ASSESSEE HAS ALREADY BEEN ASSESSED AND SUBSEQUENT ASSESSMENT CANNOT BE VALIDLY FRAMED IN LAW. THE LD. CIT (A) HAS NOT ADJUDICATED THE SAID CONTENTIONS PARTICULARLY AND HE HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE ON MERITS. THEREFORE, IN THE INTEREST OF JUSTICE, WE CONSIDER IT JUST AND PROPER TO RESTORE THIS ISSUE TO THE FILE OF AO WITH A DIRECTION THAT THE A O SHALL FIRST DECIDE THE CONTENTION OF THE ASSESSEE THAT THE EARLIER ASSESSMENT REFERRE D BY LD.AR IS OF THE ASSESSEE AND IF IT IS SO, THE SUBSEQUENT ASSESSMENT WHETHER COULD VALIDLY BE FRAMED IN EXISTENCE OF EARLIER ASSESSMENT. FOR DECIDING SUCH POINT, HE WILL GIVE REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND AFTER GI VING SUCH OPPORTUNITY, THE ISSUE WILL BE DECIDED. THEREAFTER, IF THE AO FOUND THAT SUBSEQUENT ASSESSMENT CAN BE VALIDLY FRAMED, THEN HE WILL REFRAME THE ASS ESSMENT DENOVO AS PER LAW. WE DIRECT ACCORDINGLY. AS WE ARE RESTORING THE LEG AL ISSUE TO THE FILE OF AO, WE DO NOT EXPRESS ANY OPINION ON MERIT WHICH WAS NOT E VEN ARGUED BY BOTH THE ITA NO.2165/DEL/2009 CO NO. 223/DEL/2009 5 PARTIES FOR WHICH THE ASSESSEE MAY HAVE THE OPPORTU NITY TO CONTEST EVEN BEFORE THE AO IN THE RESTORED PROCEEDINGS AS PER PROVISION S OF LAW. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE A S WELL AS CROSS OBJECTION FILED BY THE ASSESSEE BOTH ARE ALLOWED IN AFOREMENT IONED TERMS FOR STATISTICAL PURPOSES. . 10. THE ORDER PRONOUNCED IN THE OPEN COURT ON 08.01 .2010. [R.C. SHARMA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 08.01.2010. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES