Smt. Alka Arora, New Delhi V. DCIT, New Delhi

ITA 1320/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4495 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 06-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO. 1320/DEL./2 017 ASSTT. YEAR : 2007-08 ALKA ARORA 4997-98, SIRKIWALAN HAUZ QUAZI NEW DELHI PAN-AACPA0602L VS. DCIT CIRCLE-8(1) NEW DELHI [APPELLANT] [RESPONDENT] APPELLANT BY : SH.SOMIL AGARWAL, ADV. RESPONDENT BY SH. T. VASANTHAN, SR. D.R. DATE OF HEARING: 23 08 2017 DATE OF PRONOUNCEMENT: 28 09 2017 O R D E R PER DIVA SINGH, JUDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 24.01.2017 OF CIT(A )-22 , NEW DELHI PERTAINING TO 2007-08 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDI NG GROUND NO. 1 & 2 WHICH READ AS UNDER : THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. AO IN FRAMING THE IMPUGNED REASSESSMENT ORDER U/S 147/143(3) AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLY ING WITH THE MANDATORY CONDITIONS U/S 147 TO 151 AS ENVISAGED UN DER THE INCOME TAX ACT, 1961. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACT ION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN FRAMING THE IMPU GNED RE-ASSESSMENT ORDER U/S 143(3)/147, IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSE E EVEN BEFORE THE CIT(A) RAISED THE JURISDICTIONAL ISSUE BY RAISING THE FOLLOWING S PECIFIC GROUND AMONGST OTHER GROUNDS AS GROUND NO. 1 :- THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. AO IN FRAMING THE IMPUGNED REASSESSMENT ORDER U/S 147/143(3) AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLY ING WITH THE MANDATORY CONDITIONS U/S 147 TO 151 AS ENVISAGED UN DER THE INCOME TAX ACT, 1961. 3. A PERUSAL OF THE RECORD SHOWS THAT THE CIT( A) DISMISSED THE APPEAL HOLDING AS UNDER :- THIS APPEAL IS SQUARELY COVERED AGAINST THE APPEL LANT BY THE DECISION OF THE UNDERSIGNED IN THE CASE OF APPELLANTS HUSBAND AND CO-SHARE HOLDER IN PAYER COMPANY, SH. VIKAS ARORA IN APPEAL NO. 147 /16-17 VIDE ORDER ITA NO.1320/DEL/2017 PAGE 2 OF 3 DATED 23.01.2017. THEREFORE, FOLLOWING THE SAID ORD ER, THE APPEAL IS DISMISSED. 4. LD. AR AT THE TIME OF HEARING SUBMITTED THA T THE ORDER IN THE CASE OF THE HUSBAND HAS ALSO BEEN CHALLENGED AND IS PENDING BEF ORE THE ITAT. IT WAS HIS SUBMISSION THAT NO DOUBT ON THE MERITS OF THE ADDIT ION THOUGH THE FACTS MAY BE SAID TO BE MORE OR LESS BE IDENTICAL, HOWEVER, ON T HE JURISDICTIONAL ISSUE WHICH HAD ALSO BEEN RAISED IN THE PRESENT PROCEEDINGS, TH ERE WERE SOME MINOR DISTINCTIONS ON FACTS INASMUCH AS IN THE PRESENT CA SE, THE PROCEEDINGS WERE UNDERTAKEN BY AN ASSESSING OFFICER WHO DID NOT HAVE JURISDICTION OVER THE ASSESSEE. THE SAID ISSUE ACCORDINGLY IT WAS SUBMIT TED COULD NOT HAVE BEEN DECIDED IN THE HUSBANDS CASE ON WHICH RELIANCE HAS BEEN PLACED. ACCORDINGLY IT WAS HIS SUBMISSION THAT A NON-SPEAKING ORDER HAS BE EN PASSED AS RELIANCE HAS BEEN PLACED ON THE ORDER PASSED IN THE CASE OF THE HUSBAND WHERE ON THE ISSUE OF JURISDICTION, THERE WERE MATERIAL DISTINCTIONS O N FACTS. IN THE CIRCUMSTANCES, THE PRAYER WAS MADE THAT THE ORDER MAY BE SET ASID E. 5. THE LD. SR. DR PLACED RELIANCE ON THE IMPUGNE D ORDER, HOWEVER, IN THE ABSENCE OF ANY RELEVANT DISCUSSION ON THE SPECIFIC FACTS OF THE CASE, HE COULD NOT DEFEND THE SAME AND HE MERELY RELIED UPON SECTION 1 24(3) OF THE ACT STATING THAT ITS APPLICABILITY MAY ALSO BE CONSIDERED BY THE CIT (A). 6. I HAVE HEARD THE SUBMISSION AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. I FIND THAT IN THE ABSENCE OF THE ANY DISCUSSION IN T HE ORDER, THE CORRECTNESS OF THE ASSERTION OF THE LD. AR CANNOT BE VERIFIED. SINCE T HE FIRST ISSUE WHICH WAS TO BE DECIDED IS THE JURISDICTIONAL ISSUE ITSELF AND IN T HE ABSENCE OF ANY DISCUSSION THEREON, THE ORDER PASSED IS A NON-SPEAKING ORDER. ACCORDINGLY, IT IS DEEMED APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO FIRST INDEPENDENTLY DECIDED THE JURISD ICTIONAL ISSUE AND THEREAFTER IF NEED BE TO PROCEED TO DECIDE THE ISSUE ON MERITS. T HE LD. SR. DR HAS REQUESTED THAT THE ASSESSING OFFICER MAY ALSO BE DIRECTED TO BE GIVEN AN OPPORTUNITY BY THE CIT(A). THE LD. CIT(A) MAY TAKE NOTE OF THE STATUT ORY REQUIREMENT AS PER LAW. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS NOT AB USED BY THE ASSESSEE AND IS UTILISED BY MAKING FULL AND PROPER COMPLIANCES BEFO RE THE CIT(A) AS IN THE EVENT OF ABUSE OF THE SAME, THE CIT(A) WOULD BE AT LIBERT Y TO PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 7. IN THE RESULT THE IMPUGNED ORDER IS SET ASID E BACK TO THE FILE OF CIT(A) TO DECIDE THE SAME DE NOVO. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER,2017. SD/- (DIVA SINGH) JUDICIAL ME MBER ITA NO.1320/DEL/2017 PAGE 3 OF 3 DATED: 28.09.2017 *BINITA*(DLI)/*POONAM*(CHD) COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGIST RAR