Sh. Joginder Singh Nijjar, United Kingdom V. Asstt. Director of Income Tax, Chandigarh

ITA 1251/CHANDI/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 2951 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 01-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH GUPTA
• Keywords: Search and seizure; Double taxation relief; Opportunity of being heard; TDS; Set aside
• Section: 142(1); 153A; 32; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHA, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NOS. 1248 TO 1251/CHD/2018 (ASSESSMENT YEARS : 2009-10 TO 2012-13) SH. JOGINDER SINGH NIJJAR VS. THE ASSTT. DIRECTO R C/O SH. TEJMOHAN SINGH, OF INCOME TAX ADVOCATE, #527, SECTOR-10D (INTERNATIONAL TAXATIO N) CHANDIGARH CHANDIGARH PAN NO. AIHPN7432J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. TEJMOHAN SINGH, ADVOCATE DEPARTMENT BY : SHRI. ASHISH GUPTA, CIT DATE OF HEARING : 05/03/2019 DATE OF PRONOUNCEMENT : 05/03/2019 O R D E R PER BENCH : THESE FOUR APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE CONSOLIDATED ORDER OF THE LD. CIT(A)-43, NEW DELHI DT. 26/03/201 8. 2. SINCE THE ISSUES INVOLVED ARE COMMON AND THE APP EALS WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS CO MMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. THE ASSESSEE HAS RAISED THE COMMON GROUNDS IN AL L THESE APPEALS THE ONLY DIFFERENCE IS IN THE AMOUNT INVOLVED. THE GROUNDS R AISED IN ITA NO. 1248/CHD/2018 FOR THE A.Y. 2009-10 READ AS UNDER: 1. THAT THE LD. CIT(A), HAS ERRED IN LAW AND FACTS IN HOLDING THAT THERE WAS A VALID SERVICE OF NOTICE UNDER SECTION 153A, 142(1) AND 14 3(2) WHICH IS CONTRARY TO THE FACTS ON RECORD AND AS SUCH THE ORDER PASSED IS ILL EGAL, ARBITRARY AND UNJUSTIFIED. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS FURTHER ERRED IN NOT DECIDING THE OTHER GROUNDS OF APPEAL AS HAD BEEN RA ISED BEFORE THE HON'BLE ITAT WHICH IS IN VIOLATION OF THE DIRECTIONS OF THE HON' BLE ITAT WHEREIN THE ORDER WAS SET- SIDE IN TOTO BACK TO THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WITH A DIRECTION TO PASS A SPEAKING ORDER AND AS SUCH THE ORDER PASSED IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE GROUNDS OF APPE AL AS RAISED BEFORE THE HON'BLE ITAT AGAINST THE ORDER OF COMMISSIONER OF I NCOME TAX (APPEALS) DATED 27.09.2016 IN THE ORIGINAL PROCEEDINGS ARE AGAIN RA ISED HEREIN UNDER IN GROUNDS OF APPEAL NOS. 4 TO 11. 2 4. THAT THE LD. COMMISSIONER OF INCOME (APPEALS) HAS E RRED IN LAW IN UPHOLDING THE FRAMING OF ASSESSMENT U/S 153 A READ WITH SECTI ON 144 OF THE ACT IN AS MUCH AS THERE HAS BEEN NO WARRANT OF AUTHORIZATION U/S 1 32 IN HIS NAME AND THEREAFTER FRAMING AN EX-PARTE ASSESSMENT WITHOUT COMPLYING WI TH THE REQUIREMENTS OF THE SECTION 153 OF THE ACT IS ILLEGAL, ARBITRARY AND UN JUSTIFIED AND AS SUCH THE ASSESSMENT MERITS ANNULMENT. 5. THAT THERE WAS NO SEARCH EVER ON THE ASSESSEE AND A S SUCH NO WARRANT OF AUTHORIZATION U/S 132 AS ALLEGED IN THE ASSESSMENT ORDER WAS EVER EXECUTED AND SERVED ON THE ASSESSEE AND UPHOLDING OF AN EX-PARTE ASSESSMENT ON A WRONG PRESUMPTION AND UNDER DIFFERENT PROVISIONS OF THE A CT IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 6. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS FURTHER ERRED IN UPHOLDING THE FRAMING OF ASSESSMENT UNDER SECTION 1 44 OF THE ACT WITHOUT AFFORDING ANY OPPORTUNITY OF HEARING WHICH IS ILLEG AL, ARBITRARY AND UNJUSTIFIED. 7. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) HAS ERRED IN UPHOLDING AN ADDITION OF RS. 70,72,164/- TREATING ALLEGED INCOME RECEIVED FROM M/S OMAXE LIMITED TO BE INCOME FROM OTHER SOURCES WHEN IN FACT NO AMOUNT HAS BEEN RECEIVED BY THE ASSESSEE AND AS SUCH THE ADDITION UPHELD IS ARBITRARY AND UNJUSTIFIED. 8. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS FURTHER ERRED IN UPHOLDING THAT THE ALLEGED ASSURED RETURN PAID TO T HE ASSESSEE IS NOT COVERED UNDER DEFINITION OF INTEREST AS PER ARTICLE 12 OF I NDO-UK DTAA AND SECTION 2(28A) OF THE INCOME TAX ACT THEREBY DENYING THE BENEFIT OF A RTICLE 12 OF THE DTAA WHICH IS ARBITRARY AND UNJUSTIFIED. 9. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS FURTHER ERRED IN UPHOLDING THE INCOME TO BE 'INCOME FROM OTHER SOURC ES' AND NOT 'INCOME FROM HOUSE PROPERTY' WHICH IS ARBITRARY AND UNJUSTIFIED. 10. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS FURTHER ERRED IN NOT DIRECTING THE ASSESSING OFFICER TO COMPUTE INCOME A S APPEARING IN FORM 26AS AND ONLY ALLOWING BENEFIT OF THE TDS DEDUCTED ON TH E SAME INCOME WHICH IS SOUGHT TO BE TAXED WHICH IS ARBITRARY AND UNJUSTIFI ED. 11. THAT THE ORDER OF THE LD. ASSTT. COMMISSIONER OF IN COME TAX PASSED UNDER SECTION 144 READ WITH SECTION 153 A OF THE ACT IS E RRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF THE CASE AND IS, THUS, UNTENABLE. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESEE IS NON-RESIDENT, A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE INCO ME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) WAS UNDERTAKEN I N HIS CASE. THE ASSESSING OFFICER ISSUED THE NOTICE UNDER SECTION 153A(1)(A) OF THE ACT READ WITH SECTION 132 OF THE ACT. HOWEVER THERE WAS NO COMPLIANCE, TH E ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 144 READ WITH SECTION 153A OF THE ACT AND MADE THE ADDITION OF RS. 70,72,164/- FOR THE YEAR UNDER CONSIDERATION, SIMILAR ADDITIONS WERE MADE FOR THE OTHER YEARS. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND CHALLENGED THE SERVICE OF NOTICE. THE LD. CIT(A) HO WEVER DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND SUSTAINED THE ADDIT ION MADE BY THE ASSESSING OFFICER. THEREAFTER THE ASSESSEE PREFERRED AN APPEA L BEFORE THE ITAT, CHANDIGARH BENCH IN ITA NO. 1265 TO 1268/CHD/2016 F OR THE A.YS 2009-10 TO 3 2012-13 WHEREIN VIDE ORDER DT. 08/06/2017 THE ISSUE WAS SET ASIDE TO THE FILE OF THE LD. CIT(A) BY MAKING THE FOLLOWING OBSERVATION: 3. IN THE FACTS OF THE PRESENT CASE ALSO, NOTICE IS STATED TO HAVE BEEN SERVED THROUGH AFFIXTURE. HOWEVER, HERE EVEN THE PLACE OF AFFIXTURE HAS NOT BEEN MENTIONED. CONSIDERING THE FACTS, SUBMISSIONS AND A RGUMENTS TO BE COMMON, ACCEPTING THE PRAYER OF THE PARTIES, THE IMPUGNED O RDER IS SET ASIDE IN TOTO BACK TO THE FILE OF THE ID. CIT(A) WITH A DIRECTION TO P ASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD ON THE JURISDICTION ISSUE AND THEN TO PROCEED TO DECIDE THE ISSUE ON MERITS, IF NEED BE. SAID ORDER WAS PRONOUNCED IN THE OPEN C OURT AT THE TIME OF HEARING ITSELF. 6. NOW THE ASSESSEE IS IN APPEAL. 7. LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT IN THE AFORESAID REFERRED TO ORDER DT. 08/06/2017 THE ITAT DIRECTED THE LD. CIT(A) TO DECIDE THE ISSUE ON MERITS IF NEED BE AND TO PASS A SPEAKING O RDER. IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A) DECIDED THE ISSUE RELATING TO S ERVICE OF NOTICE AGAINST THE ASSESSEE BUT DID NOT DECIDE THE ISSUE ON MERITS AS WAS DIRECTED BY THE ITAT. 8. IN HIS RIVAL SUBMISSIONS THE LD. CIT DR SUPPORTE D THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS NOTICED THAT THE ITAT VIDE ORDER DT. 08/06/2017 DIR ECTED THE LD. CIT(A) TO DECIDE THE ISSUE RELATING TO THE JURISDICTION AS WELL AS O N MERITS IF NEED BE, HOWEVER, THE LD. CIT(A) DECIDED THE ISSUE ON THE JURISDICTION O NLY BUT NO FINDING HAS BEEN GIVEN ON THE MERITS OF THE CASE. THEREFORE, THIS IS SUE IS SET ASIDE TO THE LD. CIT(A) FOR ADJUDICATION ON MERITS AFTER GIVING DUE AND REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 05/03/2019) SD/- SD/- (SANJAY GARG) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 05/03/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR