ITO, Ward-2(2), Midnapore, Paschim Medinipur V. Smt. Sunita Jain, Paschim Medinipur

ITA 135/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100042 (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; 2

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. 13 5 / KOL / 2011 ASSESSMENT YEAR :2005-06 INCOME TAX OFFICER, WARD-2(2) MIDNAPORE, KSHUDIRAM NAGAR, PASCHIM MIDNAPORE V/S . SMT SUNITA JAIN JAIN BUILDING, KHARIDA MAIN ROAD, KHARAGPUR, PASCHIM MIDNAPORE [ PAN NO. ACOPJ 2411 J ] /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 5/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 ITA NO.135/KOL/2011 A.Y. 2005-06 ITO WD-2(2) MID. V. SMT. SUNITA. JAIN PAGE 2 NOTICE U/S 148 AND THEREFORE, REOPENING OF THE ASSE SSMENT WAS VOID AUTHORITIES BELOW-INITIO. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A)- XXXVI, KOLKATA HAS ERRED IN DELETING THE ADDITIONS OF RS.29,01,000/- WHICH WAS MADE AS INVESTMENT FROM UNDISCLOSED SOURC ES MADE BY AO WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE HA S FAILED TO COMPLY WITH THE TERMS OF NOTICE U/S. 148 WITHIN 30 DAYS FR OM THE DATE 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.29.01 LAKH IN DIFFERENT MUTUAL FUN DS. DURING THE FINANCIAL YEAR 2004-05 THE AO FOUND THAT ASSESSEE HAS NOT FILED HE R 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 DEMAND ACCO RDINGLY. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A). ITA NO.135/KOL/2011 A.Y. 2005-06 ITO WD-2(2) MID. V. SMT. SUNITA. JAIN PAGE 3 5. BEFORE LD. CIT(A) ASSESSEE DEMONSTRATED THAT ASS ESSMENT IN A.Y 2003-04 BEING ASSESSED WITH ITO WARD 2(2) OF MIDNAP ORE AND AFTER THAT ASSESSEE HAS SHIFTED TO NEW DELHI AT THE FOLLOWING ADDRESS:- 31 NORTH AVENUE ROAD, WEST PUNJABI BAGH, NEW DELHI - 110026 ASSESSEE RECEIVED A NOTICE U/S. 142(1) DATED 16.07. 08 THROUGH ITS OLD NEIGHBOR AT MIDNAPORE. ON RECEIPT OF SAID NOTICE ON 20.08.2008 ASSESSEE IMMEDIATELY INFORMED THE ITO WARD 2(2) MIDNAPORE TH AT SHE HAD SHIFTED TO NEW DELHI AND HAVE ALREADY FILED HER RETURN OF INCO ME SINCE 2003-04. ON THE BASIS OF ABOVE, LD. CIT(A) OPINED THAT AO (ITO WARD -2(2) MIDNAPORE) WAS NOT HAVING JURISDICTION OVER THE APPELLANT AT THE TIME OF REOPENING OF ASSESSMENT BY ISSUING NOTICE U/S. 148 OF THE ACT AND 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 9 AND HE RELIED ON THE ORDER OF LD. CIT(A).FROM THE AFORESAID DISCUSSION W E FIND THAT PETITIONER HAS SHIFTS ITS BUSINESS AND RESIDENCE FROM MIDNAPORE TO NEW DELHI AND HER RETURN OF INCOME WERE DULY FILED BEFORE AO HAVING JURISDIC TION OVER THE AREA WHERE BUSINESS OF THE PETITIONER SITUATED. FURTHER, LD. A R DREW OUR ATTENTION THAT NECESSARY DETAILS WERE SUBMITTED AT APPELLATE STAGE AND IT IS CLEAR THE SPECIFYING THAT ASSESSEE HAS SHIFTED ITS BUSINESS A S WELL AS RESIDENCE FROM MIDNAPORE TO DELHI AND PAN OF ASSESSEE HAS ALSO BEE N 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, THOUGH REFERABLE TO THE PERIOD WHEN THEY WERE ASSES SED OR WERE ITA NO.135/KOL/2011 A.Y. 2005-06 ITO WD-2(2) MID. V. SMT. SUNITA. JAIN PAGE 4 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-SMT. SUNITA JAIN, JAIN BLDG. KHARIDA MA IN 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/ / - +, ,