Shri Raisuddun, New Delhi V. ITO, Ghaziabad

CO 27/DEL/2014

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0525 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 06-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 19-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 17-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Assessee Lawyers: ASHWANI TANEJA
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH F FF F : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA, VICE , VICE , VICE , VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI INTURI RAMA RAO INTURI RAMA RAO INTURI RAMA RAO INTURI RAMA RAO, , , , ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 3622/DEL/2013 3622/DEL/2013 3622/DEL/2013 3622/DEL/2013 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008 - -- - 09 0909 09 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -2(2), 2(2), 2(2), 2(2), GHAZIABAD. GHAZIABAD. GHAZIABAD. GHAZIABAD. VS. VS. VS. VS. SHRI RAI SHRI RAI SHRI RAI SHRI RAI SUDDIN, SUDDIN, SUDDIN, SUDDIN, S/O SHRI IMAMUDDIN, S/O SHRI IMAMUDDIN, S/O SHRI IMAMUDDIN, S/O SHRI IMAMUDDIN, VILLAGE VILLAGE VILLAGE VILLAGE- -- -PIPLERA, PIPLERA, PIPLERA, PIPLERA, POST POST POST POST- -- -MUSSORIE, MUSSORIE, MUSSORIE, MUSSORIE, DISTRICT GHAZIABAD. DISTRICT GHAZIABAD. DISTRICT GHAZIABAD. DISTRICT GHAZIABAD. PAN : AGEPR9360C. PAN : AGEPR9360C. PAN : AGEPR9360C. PAN : AGEPR9360C. (APPELLANT) (RESPONDENT) CROSS OBJECTION CROSS OBJECTION CROSS OBJECTION CROSS OBJECTION NO NONO NO .27/DEL/2014 .27/DEL/2014 .27/DEL/2014 .27/DEL/2014 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2008 2008 2008 2008 - -- - 09 0909 09 SHRI RAISUDDIN, SHRI RAISUDDIN, SHRI RAISUDDIN, SHRI RAISUDDIN, S/O SHRI IMAMUDDIN, S/O SHRI IMAMUDDIN, S/O SHRI IMAMUDDIN, S/O SHRI IMAMUDDIN, VILLAGE VILLAGE VILLAGE VILLAGE- -- -PIPLERA, PIPLERA, PIPLERA, PIPLERA, P PP POST OST OST OST- -- -MUSSORIE, MUSSORIE, MUSSORIE, MUSSORIE, DISTRICT GHAZIABAD. DISTRICT GHAZIABAD. DISTRICT GHAZIABAD. DISTRICT GHAZIABAD. PAN : AGEPR9360C. PAN : AGEPR9360C. PAN : AGEPR9360C. PAN : AGEPR9360C. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -2(2), 2(2), 2(2), 2(2), GHAZIABAD. GHAZIABAD. GHAZIABAD. GHAZIABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI VIKRAM SAHAY, SR.DR. ASSESSEE BY : SHRI ASHWANI TANEJA AND SHRI TARUN KUMAR, ADVOCATES. DATE OF HEARING : 08.04.2015 08.04.2015 08.04.2015 08.04.2015 DATE OF PRONOUNCEMENT : 06.05.2015 06.05.2015 06.05.2015 06.05.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA PER G.C. GUPTA PER G.C. GUPTA PER G.C. GUPTA, VP , VP , VP , VP : :: : THE APPEAL BY THE REVENUE AND THE CROSS-OBJECTION B Y THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09 ARE DIRECTED AGAIN ST THE ITA-3622/DEL/2013 & C.O.27/DEL/2014 2 ORDER OF LEARNED CIT(A), GHAZIABAD DATED 14 TH MARCH, 2013. THESE ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. ASSESSEES CROSS ASSESSEES CROSS ASSESSEES CROSS ASSESSEES CROSS- -- -OBJECTION NO.27/DEL/2014 : OBJECTION NO.27/DEL/2014 : OBJECTION NO.27/DEL/2014 : OBJECTION NO.27/DEL/2014 :- -- - 2. THE GROUNDS RAISED BY THE ASSESSEE IN HIS CROSS-OBJECTI ON ARE AS UNDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD.CIT(A) HAS ERRED IN LAW AND ON FACTS I N NOT QUASHING THE IMPUGNED ASSESSMENT ORDER WHICH WAS FRAMED BY LD.AO WITHOUT ISSUING/SERVING THE MANDATORY NOTICE U/S 143(2) WITHIN THE STIPULATED TIM E AS PER LAW. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, IMPUGNED ORDER PASSED BY LD.AO U/S 147 IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THIS CASE, THE MANDATORY NOTICE UNDER SECTION 143(2) OF THE IN COME-TAX ACT, 1961 WAS NOT ISSUED WITHIN THE STIPULATED TIME AS PER L AW AND, THEREFORE, THE IMPUGNED ASSESSMENT ORDER IS BAD IN LAW A ND THE SAME IS LIABLE TO BE CANCELLED. HE REFERRED TO PAGE 58 O F THE LEARNED CIT(A)S ORDER WHEREIN THIS LEGAL GROUND HAS BEEN TAKEN BY THE ASSESSEE AND THE LEARNED CIT(A) HAS SUMMARILY REJECTED THE SAME BY REFERRING TO THE PROVISIONS OF SECTION 292BB OF THE ACT. HE SUBMITTED THAT THE PROVISION OF SECTION 292BB TAKES CARE OF CERTAIN DEFE CTS IN THE NOTICE ISSUED TO THE ASSESSEE AND COULD NOT CURE THE DEFECT WHE RE NO NOTICE UNDER SECTION 143(2) WAS ISSUED TO THE ASSESSEE AND THE ASSE SSMENT WAS COMPLETED ON THE BASIS OF NOTICE ISSUED UNDER SECTIO N 148 OF THE ACT. HE RELIED ON THE DECISION OF DELHI TRIBUNAL IN THE CASE OF RIMMELS INTERNATIONAL PVT.LTD. VS. ITO IN ITA NO.2596/DEL/20 13 DATED 4 TH MARCH, 2015 IN SUPPORT OF HIS CASE. ITA-3622/DEL/2013 & C.O.27/DEL/2014 3 4. LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE CIT(A) HAS PASSED A WELL- REASONED SPEAKING ORDER ON THIS ISSUE. THE NOTICE UNDER SECTION 147 WAS DULY ISSUED TO THE ASSESSEE AND SERVED ON HIM. MOREOV ER, THE NEWLY INTRODUCED PROVISION OF SECTION 292BB PROVIDES THAT THE ENTIRE ASSESSMENT COULD NOT BE SAID TO BE NULLITY WHEN THE ASSESSEE HAS APPEARED DURING ASSESSMENT PROCEEDINGS AND HIS SUBMISSIONS HA VE BEEN CONSIDERED. HE REFERRED TO THE RELEVANT PORTIO N OF THE CIT(A)S ORDER ON THIS ISSUE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PER USED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). WE FIND THAT THE REVENUE COULD NOT DEMONSTRATE THAT ANY NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE. THE ISSUANCE OF NOTI CE UNDER SECTION 143(2) OF THE ACT IS MANDATORY IN NATURE AND HAS TO BE ISSUED WITHIN THE STIPULATED TIME AS PER LAW. IN THE ABSENC E OF ANY ISSUANCE OF NOTICE UNDER SECTION 143(2), THE IMPUGNED ASSESSMEN T FRAMED IN THIS CASE COULD NOT BE SUSTAINED AS PER LAW. THE PROVISI ON OF SECTION 292BB INSERTED WITH EFFECT FROM 1.4.2008 WOULD NOT H ELP THE CASE OF THE REVENUE AS THE ISSUE OF NON-ISSUANCE OF NOTICE UNDE R SECTION 143(2) GOES TO THE ROOT OF THE JURISDICTION BEING ASSU MED BY THE ASSESSING OFFICER FOR COMPLETING THE ASSESSMENT AND WOULD N OT CURE THE DEFECT OF NON-ISSUANCE OF MANDATORY NOTICE UNDER SECTION 143(2) OF THE ACT BEFORE THE ASSESSMENT IS COMPLETED. IN THE ABSEN CE OF ANY MATERIAL BROUGHT ON RECORD TO SUGGEST THAT THE DEPART MENT HAS ISSUED/SERVED NOTICE UNDER SECTION 143(2) WITHIN THE ST IPULATED TIME AS PER LAW BEFORE THE COMPLETION OF THE ASSESSMENT, WE AR E UNABLE TO SUSTAIN THE IMPUGNED ASSESSMENT ORDER AND THE SAME IS CANCE LLED. ITA-3622/DEL/2013 & C.O.27/DEL/2014 4 ACCORDINGLY, THE GROUNDS OF THE CROSS-OBJECTION OF TH E ASSESSEE ARE ALLOWED. ITA NO.3622/DEL/2013 ITA NO.3622/DEL/2013 ITA NO.3622/DEL/2013 ITA NO.3622/DEL/2013 (REVENUES APPEAL) : (REVENUES APPEAL) : (REVENUES APPEAL) : (REVENUES APPEAL) :- -- - 6. THE GROUNDS OF APPEAL OF THE REVENUE ARE AS UNDER: - 1. THAT THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, BY DELETING THE ADDITION OF RS.38,90,000/- WITHOUT APPRECIATING THE EVIDENCES ELABORATELY DISCUSSED BY THE AO. 2. THAT THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS, IN NOT APPRECIATING THAT THE TAHSILDAR (REVENUE AUTHORI TY OF THE STATE GOVERNMENT) HAS CATEGORICALLY MENTIONED IN HIS REPORT THAT THE VALUE OF THE PROPERTY IS APPRO X. RS.1.20 CRORE, AND THE PROCEEDING OF UNDER VALUATION OF STAMP DUTY HAVE ALSO BEEN INITIATED. 3. THAT THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS A ND CIRCUMSTANCES OF THE CASE, IN IGNORING THE STATEMENT OF THE BANK MANAGER RECORDED DURING ASSESSMENT PROCEEDINGS. 4. CIRCUMSTANTIAL EVIDENCES PROVE THAT THE PAYMENT WAS MADE BY THE ASSESSEE. THE WITNESS OF PURCHASE DEED SHRI GULZAR AND SHRI GAFFAR IN THEIR STATEMENT HAVE SAID THAT THE PURCHASERS HAVE MADE PAYMENT OF RS.1,00,00,000/- TO SELLER SHRI INTEZAR ALI (RS.7,00,0 00/- BY DD AND RS.93,00,000/- IN CASH) AT THE TIME OF REGISTRY. BANK PAY IN SLIP DATED 12/13.11.2007 SHOWS LATE HOUR DEPOSIT OF RS.90,00,000/- HONBLE ITAT IN ITS DECISION IN THE CASE OF SELLER SHRI INTEZAR ALI IN ITA NO.1657/DEL/2012 DATED 08.03.2013 HAS MENTIONED THE ABOVE FACTS. HENCE ORDER OF THE LD.CIT(A) DESERVES TO BE REVERSED/SET ASIDE AND THE ORDER OF THE AO MAY BE RESTORED. 5. THAT THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS A ND CIRCUMSTANCES OF THE CASE, BY DELETING THE ADDITION OF RS.10,00,000/- ON ACCOUNT OF UNEXPLAINED LOAN TAKEN FROM SHRI CHAMAN LAL. ITA-3622/DEL/2013 & C.O.27/DEL/2014 5 7. IN VIEW OF OUR ALLOWING THE CROSS-OBJECTION FILED BY THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR 2008-09 WHILE DISPOSING OF THE CROSS- OBJECTION OF THE ASSESSEE NO.27/DEL/2014 IN THE FOREGO ING PARAGRAPHS OF THIS ORDER AND HOLDING THAT THE ASSESSMENT WAS NOT LEG AL SINCE FRAMED WITHOUT ISSUANCE OF NOTICE UNDER SECTION 143(2 ) OF THE ACT AND IN VIEW OF THE FACT THAT THE ASSESSMENT ITSELF HAS BEEN C ANCELLED, WE HOLD THAT THE GROUNDS OF APPEAL OF THE REVENUE COULD NOT BE SUSTAINED AND ARE ACCORDINGLY DISMISSED. 8. IN THE RESULT, THE CROSS-OBJECTION OF THE ASSESSEE IS AL LOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 6 TH MAY, 2015. SD/- SD/- ( (( ( INTURI RAMA RAO INTURI RAMA RAO INTURI RAMA RAO INTURI RAMA RAO ) )) ) (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -2(2), GHAZIABAD. 2(2), GHAZIABAD. 2(2), GHAZIABAD. 2(2), GHAZIABAD. 2. RESPONDENT : SHRI RAISUDDIN, SHRI RAISUDDIN, SHRI RAISUDDIN, SHRI RAISUDDIN, S/O SHRI IMAMUDDIN, VILLAGE S/O SHRI IMAMUDDIN, VILLAGE S/O SHRI IMAMUDDIN, VILLAGE S/O SHRI IMAMUDDIN, VILLAGE- -- -PIPLERA, PIPLERA, PIPLERA, PIPLERA, POST POST POST POST- -- -MUSSORIE, DISTRICT GHAZIABAD. MUSSORIE, DISTRICT GHAZIABAD. MUSSORIE, DISTRICT GHAZIABAD. MUSSORIE, DISTRICT GHAZIABAD. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR