ITO, Ward - 2(2), Midnapore, Paschim Medinipur V. Kamar Kumar Jain, Paschim Medinipur

ITA 134/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100047 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 20-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHREYA LAYALKA ACA
• Keywords: Reopening of assessment
• Section: 142(1); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 134 / KOL / 2011 ASSESSMENT YEAR :2005-06 INCOME TAX OFFICER, WARD-2(2) MIDNAPORE, KSHUDIRAM NAGAR, PASCHIM MIDNAPORE V/S . SRI KAMAL KUMAR JAIN JAIN BUILDING, KHARIDA MAIN ROAD, KHARAGPUR, PASCHIM MIDNAPORE [ PAN NO. ACKPJ 9320 Q ] /APPELLANT .. / RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SMT. SHREYA LAYALKA, ACA /DATE OF HEARING 26-10-2015 /DATE OF PRONOUNCEMENT 06-11-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI, KOLKATA IN APPEAL NO.24 1/CIT(A)-XXXVI/KOL /37/WARD-2(2), MID.08/09 DATED 26.11.2010. ASSESSME NT WAS FRAMED BY ITO WARD-2(2), MIDNAPORE U/S 144/147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 31.1 2.2008 FOR ASSESSMENT YEAR 2005-06. REVENUE HAS RAISED FOLLOWING GROUNDS:- 1, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A)- XXXVI, KOLKATA ERRED IN DECIDING THAT THE A.O WAS H AVING NO JURISDICTION OVER THE APPELLANT AT THE TIME OF RE-OPENING THE AS SESSMENT AND ISSUING NOTICE U/S 148 AND THEREFORE, REOPENING OF THE ASSE SSMENT WAS VOID AUTHORITIES BELOW-INITIO. ITA NO.134/KOL/2011 A.Y. 2005-06 ITO WD-2(2) MID. V. SH. KAMAL KR. JAIN PAGE 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A)- XXXVI, KOLKATA ERRED IN DELETING THE ADDITIONS OF R S.89,26,000/- WHICH WAS MADE AS INVESTMENT FROM UNDISCLOSED SOURCES MAD E BY AO WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE HAS FAILED TO COMPLY WITH THE TERMS OF NOTICE U/S. 148 WITHIN 30 DAYS FROM THE DA TE OF RECEIPT OF THE NOTICE. 2. AT THE TIME OF HEARING OF THIS APPEAL, NONE APPE ARED ON BEHALF OF REVENUE. THE LD. DR SOUGHT FOR THE BULK ADJOURNMENT IN 19 CASES BUT WE REJECTED THE ADJOURNMENT APPLICATION IN THOSE CASES WHERE WE FIND THAT THE HEARING CAN TAKE PLACE WITHOUT THE PRESENCE OF THE DR. SO WE DECIDED TO HEAR THIS CASE AND PROCEEDED AFTER SMT. SHREYA LOYALKA, LD. AUTHORIZED REPRESENTATIVE APPEARING ON BEHALF OF ASSESSEE. 3. FIRST GROUND OF REVENUES APPEAL IS REGARDING TH AT LD. CIT(A) HAS ERRED IN DECIDING THAT ASSESSING OFFICER WAS HAVING NO J URISDICTION OVER THE APPELLANT AT THE TIME OF RE-OPENING OF ASSESSMENT U /S. 147 OF THE ACT. 4. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IND IVIDUAL AND HAS MADE INVESTMENT OF RS.89.26 LAKH IN DIFFERENT MUTUAL FUN DS. DURING THE FINANCIAL YEAR 2004-05 THE AO FOUND THAT ASSESSEE HAS NOT FILED HI S RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR I.E. 2005-06 AND THEREFORE HE FORMED THE BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. SO AO HAS ISSUED A N OTICE U/S. 148 OF THE ACT REQUIRING ASSESSEE TO FILE ITS RETURN OF INCOME , HOWEVER, THERE WAS NO COMPLIANCE FROM THE SIDE OF ASSESSEE IN SPITE OF SE VERAL REMINDERS ISSUED ON DIFFERENT DATES. AFTER THAT AO FINALLY FRAMED THE I NCOME ESCAPED ASSESSMENT U/S 144 R.W.S 147 OF THE ACT AND RAISED TAX DEMAND ACCORDINGLY. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A). 5. BEFORE LD. CIT(A) ASSESSEE DEMONSTRATED THAT TIL L ASSESSMENT A.Y 2003-04 WAS BEING ASSESSED WITH ITO WARD 2(2) OF MI DNAPORE AND AFTER THAT ASSESSEE HAS SHIFTED TO NEW DELHI AT THE FOLLOWING ADDRESS:- 31 NORTH AVENUE ROAD, WEST PUNJABI BAGH, NEW DELHI - 110026 ITA NO.134/KOL/2011 A.Y. 2005-06 ITO WD-2(2) MID. V. SH. KAMAL KR. JAIN PAGE 3 AFTER SHIFTING TO NEW DELHI ASSESSEE UPDATED ITS AD DRESS IN ITS PERMANENT ACCOUNT NUMBER (PAN) AND STARTED FILING ITS RETURN AT NEW DELHI I.E., ITO WARD-25(4) NEW DELHI FROM AY 2005-06 ONWARDS AND TH IS ASSESSMENT YEAR IS IN DISPUTE. THE ASSESSEE HAS SUBMITTED THE FOLLOWIN G DOCUMENTS IN SUPPORT OF HIS CLAIM:- 1) REGISTRATION OF HOUSE IN FAVOUR OF SUNITA JAIN (WIFE) ON 25.3.2003 (PG 7) 2) BILL FOR COMMON AREA MAINTENANCE OF RESIDENCE (P G 15) 3) BILL FOR PURCHASE OF CAR IN THE NAME OF SUNITA J AIN(WIFE) DATED 9.3.2004 (PG 16) 4) GAS CONNECTION BILL DATED 25.7.2003 (PG 18) 5) DRIVING LICENSE (PG 20) 6) RATION CARD (PG 21) ASSESSEE RECEIVED A NOTICE U/S. 142(1) DATED 25.08. 08 THROUGH ITS OLD NEIGHBOR AT MIDNAPORE. ON RECEIPT OF SAID NOTICE AS SESSEE IMMEDIATELY INFORMED THE ITO WARD 2(2) MIDNAPORE ON 29.08.2008 THAT HE HAD SHIFTED TO NEW DELHI AND HAVE ALREADY FILED HIS RETURN OF INCO ME FOR AY 2005-06 VIDE ACKNOWLEDGMENT NO. 21120 DISCLOSING ENTIRE INCOME T HEREIN. LD. CIT(A) CALLED FOR REMAND REPORT FROM AO WHICH REPRODUCED B ELOW FOR THE SAKE OF CLARITY:- NOTICE U/S 148 WAS ISSUED ON 02.04.2007 AND SENT I T BY POST TO THE ASSESSEE AT THE EARLIER RETURNED ADDRESS WHICH WAS CHOTTA TA NGRA, KHARAGPUR, PASCHIM MEDINIPUR. BUT THE SAID NOTICE WAS RETURNED UNSERVE D BY THE POSTAL MAN ON 19.04.2007. SUBSEQUENTLY, THE ASSESSEE SUBMITTED A LETTER ON 11.05.2007 INFORMING THE CHANGE OF HIS ADDRESS AT JAIN BUILDI NG KHARIDA MAIN ROAD, KHARGPUR, PASCHIM MEDINIPUR ( COPY ENCLOSED MARKED A FOR KIND PERUSA L). SO, NOTICE U/S. 148 WAS SERVED UPON THE ASSESSEE AT THE CHANGED ADDRESS (COPY OF ACKNOWLEDGEMENT ENCLOSED MARKED- B FOR K IND PERUSAL. IN RESPONSE TO NOTICE U/S. 148 THE ASSESSEE DID NOT FILE HIS RE TURN OF INCOME FOR A.Y 2005- 06. NOTICE U/S 142(1) WAS ISSUED ON 17.07.2008 ASKI NG THE ASSESSEE TO APPEAR AND PRODUCE ON 04.08.2008 AT 11.30 AM THE DE TAILS AND EVIDENCE REGARDING SOURCE OF INVESTMENTS IN MUTUAL FUNDS. NE ITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE WAS APPEARED ON THE S CHEDULED DATE. IN REPLY TO NOTICE U/S. 142(1) THE ASSESSEE SUBMITTED A LETTER TO THIS OFFICE ON 29.08.2008 WHEREIN HE STATED THAT HE HAD ALREADY FILED HIS RET URN OF INCOME FOR THE A.Y 2005-06 UNDER ACKNOWLEDGEMENT NO. 221120 DATED 12 TH JANUARY 2006 AT THE OFFICE OF THE INCOME TAX OFFICER, WARD NO. 25(4), V IKAS BHAWAN, NEW DELHI 110 002. BUT IT IS SEEN FROM THE COPY OF RETURN IN FORM NO. 2D SARAL ( COPY ENCLOSED MARKED C ) AS SUBMITTED BY THE ASSESSEE THAT MACHINE PUNCHIN G ACKNOWLEDGEMENT NO. IS 0000021120 AND DATE OF RECEI PT OF THE RETURN IS NOT ITA NO.134/KOL/2011 A.Y. 2005-06 ITO WD-2(2) MID. V. SH. KAMAL KR. JAIN PAGE 4 CLEAR. IT IS ALSO SEEN FROM S/D COPY OF INTIMATION U/S. 143(1) OF THE I.T. ACT 1961 ( COPY ENCLOSED MARKED D ) THAT THE DATE OF FILING RETURN WAS 31/03/2006 WHEREAS THE ASSESSEE STATED IN HIS AFORE SAID LETTER THAT HE HAD FILED RETURN ON 12.01.2006. SO, THERE IS DISCREPANC Y IN ACTUAL DATE OF FILING THE RETURN. ALTHOUGH THE ASSESSEE INTIMATED THROUGH LETTER FILE D ON 29.08.2008 THAT HE SHIFTED TO NEW DELHI IN 2003 BUT HE DID NOT FILE AN Y SUBMISSION TO LD. COMMISSIONER OF INCOME TAX, KOL-XIX, KOLKATA REQUES TING TO TRANSFER HIS JURISDICTION TO ITO WARD 25(4), NEW DELHI FROM ITO, WARD 2(2), MIDNAPORE AS THERE WAS NO EVIDENCE OF SUCH SUBMISSION IN THE REC ORD. IN ABSENCE OF ORDER U/S. 127 OF THE I.T. ACT 1961 OF THE LD. COMMISSION ER OF INCOME TAX, KOL-XIX, KOLKATA THE THEN ITO, WARD 2(2), MIDNAPORE COMPLETE D THE ASSESSMENT FOR THE ASSESSMENT YEAR 2005-06 ON THE BASIS OF ABOVE, LD. CIT(A) OPINED THAT AO (I TO WARD-2(2) MIDNAPORE) WAS NOT HAVING JURISDICTION OVER THE APPELLANT AT T HE TIME OF REOPENING OF ASSESSMENT BY ISSUING NOTICE U/S. 148 OF THE ACT AN D HELD THAT THE REOPENING OF ASSESSMENT WAS VOID AB-INITO. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD LD. AR AND PERUSED THE MATERIALS A VAILABLE ON RECORD. LD. AR SUBMITTED PAPER BOOK CONTAINING PAGES 1 TO 2 6 AND HE RELIED ON THE ORDER OF LD. CIT(A). FROM THE AFORESAID DISCUSSION WE FIND THAT PETITIONER HAS SHIFTED ITS BUSINESS AND RESIDENCE FROM MIDNAPORE T O NEW DELHI AND ASSESSEES RETURN OF INCOME WERE DULY FILED BEFORE AO HAVING JURISDICTION OVER THE AREA WHERE BUSINESS OF THE PETITIONER SITUATED. FURTHER, LD. AR DREW OUR ATTENTION TO THE NECESSARY DETAILS WHICH WERE SUBMI TTED AT APPELLATE STAGE, CLEARLY SPECIFYING THAT ASSESSEE HAS SHIFTED ITS BU SINESS AS WELL AS RESIDENCE FROM MIDNAPORE TO DELHI. PAN OF ASSESSEE HAS ALSO B EEN TRANSFERRED FROM WARD 2(2) MIDNAPORE TO WARD 25(4) NEW DELHI. WE ARE ALSO RELYING ON THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF K.K. LOOMBA V. CIT & ORS CIVIL WRIT PETN. 2983 OF 1997 & CIVIL MISC. NO. 587 7 OF 1998 DATED 30-11- 1998, WHEREIN THE HEAD-NOTE REPRODUCED AS UNDER:- IT AUTHORITIES JURISDICTION OF AO-TERRITORIAL JU RISDICTION PETITIONERS SHIFTED THEIR BUSINESS / PROFESSION AND RESIDENCE F ROM AMRITSAR TO DELHI RETURN COULD HAVE BEEN FILED ONLY BEFORE AN AO AT DELHI AND HE WOULD HAVE JURISDICTION TO ASSESS THEM THEREFORE, THE A O HAVING JURISDICTION OVER THEM WOULD ALSO HAVE JURISDICTION TO ISSUE NOT ICES UNDER S. 148, ITA NO.134/KOL/2011 A.Y. 2005-06 ITO WD-2(2) MID. V. SH. KAMAL KR. JAIN PAGE 5 THOUGH REFERABLE TO THE PERIOD WHEN THEY WERE ASSES SED OR WERE ASSESSABLE AT AMRITSAR BY VIRTUE OF S. 124(1) AND 1 24(5) R/WS. 120(1) NO ORDER UNDER S. 127 OR S. 124(2) WAS CALLED FOR IN VIEW OF THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF K.K. LOOMBA (SUPRA) WE INFER THAT ASSESSING OFFICER WAS HAVING NO JURISDICTION ON THE ASSESSEE AS HE WAS SHIFTED FROM MIDNAPORE TO DELHI AND SAME FACT WAS DULY COMMUNICATED TO THE I.T. DEPARTMENT. IN TERMS OF TH E ABOVE DECISION, WE ARE INCLINED TO QUASH THE PROCEEDINGS U/S 147 OF THE AC T. THIS GROUND OF REVENUES APPEAL IS DISMISSED. 7. SINCE THE JURISDICTIONAL ISSUE FOR REOPENING OF ASSESSMENT IN REVENUES APPEAL IS DISMISSED, HENCE, REMAINING GROUND OF REV ENUES APPEAL DOES NOT REQUIRE ANY ADJUDICATION. 8. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 06/ 11/2015 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 06 /1 1 /2015 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO, WARD-2(2), KSHUDIRAM NAGAR, PASCHIM MIDNAPORE 2. /RESPONDENT-SRI KAMAL KR. JAIN, JAIN BLDG. KHARIDA MAIN RD., KHARAGPUR P.MID 3. * +, - - . / CONCERNED CIT KOLKATA 4. - - .- / CIT (A) KOLKATA 5. 012 33+,, - +, , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ - , /TRUE COPY/ / - +, ,