Smt. Abha Tyagi, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 1371/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3990 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 07-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Tangible material; Reason to believe
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN , ACCOUNTANT MEMBER ITA NO. 1371 / DEL /20 17 ASSESSMENT Y EAR 20 11 - 12 ABHA TYAGI 7, SARWAT GATE NORTH PAN - AEGPT1765D VS . ITO WARD - 1(1) MUZAFFARNAGAR (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ANKIT GUPTA , ADV RESPONDENT BY : SH. T. VASANTHAN, SR. DR / DATE OF HEARING : 03 / 10 / 201 7 / DATE OF PRONOUNCEMENT: 05 /10 / 201 7 ORDER PER B.P. JAIN, A.M. THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF L EARNE D CIT(A) , MUZAFFARNAGAR , VIDE ORDER DATED 28.12.2012 FOR THE ASSESSMENT YEAR 2011 - 12 . THE ASSESSEE HAS RAISED AS MANY TWELVE GROUNDS OF APPEAL INCLUDING THE LEGAL AS WELL AS THE GROUNDS ON MERIT. THE ASSESSEE PREFERS ONLY THE LEGAL GROUNDS NO. 1, 2 AND 3 WHICH ARE REPRODUCED HEREINBELOW : - 1 ) THAT THE NOTICE ISSUED U/S 148 AND REASSESSMENT ORDER PASSED U/S 147 R.W.S. 143(3) ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION . 2 ) THAT, IN VIEW OF THE FACTS AND CIRCUMSTANCES, NO SATISFACTION IS RECORDED BY THE ASSESSING OFFICER AS REQUIRED U/S 147/148 OF THE ACT PRIOR ISSUING THE NOTICE UNDER SECTION 147 OF THE INCOME TAX ACT, 1961. 3 ) THAT, NO SATISFACTION H AS BEEN RECORDED BY THE ASSESSING OFFICER AFTER ITA NO. 1371 /DEL/201 7 2 APPLICATION OF MIND ON THE BASIS OF TANGIBLE MATERIAL, WHICH HAVE LIVE NEXUS TO THE INCOME, WHICH HAVE ESCAPED ASSESSMENT AND MERELY RELIED ON THE INFORMATION RECEIVED FROM NMS, WHICH IS VAGUE, INCORRECT AND BASELESS, HENCE, THE PROCEEDINGS INITIATED IS ILLEGAL, AND BAD IN LAW AND WITHOUT JURISDICTION. 2 . I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE MR. ANKIT GUPTA, ADVOCATE POINTED O UT THE REASONS RECORDED BY THE AO WHICH ARE REPRODUCED HEREINBELOW: - IN THIS CASE AS PER NMS INFORMATION RECEIVED FROM THE SYSTEM OF AY 2011 - 12 REGARDING DEPOSIT OF CASH MORE THAN RS. 1000000/ - IN SAVING BANK ACCOUNT. TO VERIFY THE SOURCE OF INCOME AS LET TER DATED 10.3.2014 WAS ISSUED TO THE ASSESSEE. IN RESPONSE TO NOTICE THE ASSESSEE HAS NOT SUBMITTED ANY REPLY IN REGARD THE DEPOSITING IN SAVING BANK ACCOUNT F.Y. 2010 - 11 (ASSESSMENT YEAR 2011 - 12). IN VIEW OF THE ABOVE FACTS I HAVE REASON TO BELIEVE THAT THE INCOME OF THE ASSESSEE WHICH IS CHARGEABLE TO TAX IS ESCAPED ASSESSMENT. 3. FROM THE READING OF THE REASONS IT IS EVIDENT THAT SIMPLY CASH DEPOSIT HAS BEEN TAKEN TO BE INCOME ESCAPED FROM ASSESS MENT BY THE AO WITHOUT ASSIGNING ANY VALID REASONS OF WHATSOEVER KIND. REASONS ARE VAGUE, ARBITRARY AND DOES NOT GIVE RISE TO ANY ESCAPEMENT OF INCOME AND THEREFORE THE CASE FROM ALL THE FOUR CORNERS OF LAW DOES NOT FALL WITHIN THE AMBIT OF SECTION 147/148 OF THE ACT. THEREFORE, THE AO DOES NOT ACQUIRE ANY JURISDICTION FOR ASSESSMENT / REASSESSMENT FOR THE IMPUGNED YEAR AND THE ASSESSMENT / REASSESSMENT SO MADE IS DIRECTED TO BE QUASHED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISION OF D ELHI TRIBUNAL REPORTED IN (2015) 53 TAXMANN.COM 366 IN THE CASE OF ITA NO. 1371 /DEL/201 7 3 BIR BAHADUR SINGH SIJWALI VS. ITO, HALDWANI IN THE IDENTICAL ISSUE WHERE IT HAS BEEN HELD THAT ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 ON THE GROUND THAT THERE WAS AN ESCAPEMENT O F INCOME. FROM THE CASH DEPOSITS IN THE BANK, IT WAS HELD T HAT ASSESSING OFFICER PROCEEDED ON FALLACIOUS ASSUMPTION THAT BANK DEPOSITS CONSTITUTED AND DISCLOSED INCOME AND OVERLOOKED FACT SO DEPOSITED COULD NOT NECESSARILY BE INCOME OF THE ASSESSEE. ACCORD INGLY, REASSESSMENT PROCEEDING IN THAT CASE WAS SET ASIDE AND CASE WAS DECIDED IN FAVOUR OF THE ASSESSEE. ON IDENTICAL ISSUE, THE PRESENT CASE HAS ALSO BEEN SET ASIDE AND ASSESSMENT SO MADE HAS BEEN DIRECTED TO BE QUASHED. 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 1371 /DEL/201 7 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 5.10.2017. SD/ - ( B.P. JAIN ) ACCOUNTANT MEMBER DATED: 05 / 10 /201 7 SH COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSTT. REGISTRAR, ITAT, NEW DELHI ITA NO. 1371 /DEL/201 7 4 SL. NO. PARTICULARS DATE 1. DATE OF DICTATION 2. DATE ON WHICH THE DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3. DRAFT PLACED BEFORE THE OTHER MEMBER 4. APPROVED DRAFT COMES TO THE SR. PS/PS 5. KEPT FOR PRONOUNCEMENT ON 6. FINAL ORDER RECEIVED AFTER PRONOUNCEMENT 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILES GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR 10. DATE OF DISPATCH OF ORDER