Smt. Neha Gupta, Muzaffarnagar V. ITO, Noida

ITA 1374/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2866 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 07-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R C DANDAY
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice; Non compliance; Reassessment proceedings
• Section: 142(1); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO. 1374/DEL./2017 : ASSTT. YEAR : 2009-10 NEHA GUPTA W/O. SHRI ASHWANI KUMAR SINGHAL, C/O. DINESH MOHAN, ADVOCATE, 2-ANAND VIHAR, LANE NO. 1, CIRCULAR ROAD MUZAFFARNAGAR PAN-AQFPG8373D VS. ITO WARD-2(3) NOIDA [APPELLANT] [RESPONDENT] APPELLANT BY : SH. ANKIT GUPTA , ADV. RESPONDENT BY : SH. R.C. DANDAY , CIT . D.R. DATE OF HEARING: 1 4 0 6 2017 DATE OF PRONOUNCEMENT: 16 0 6 2017 O R D E R PER R.K. PANDA, A.M: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 24 TH JANUARY, 2017 OF THE CIT(A) -1 NOIDA RELATING TO AS SESSMENT YEAR 2009-10. THE ASSESSEE IN THE VARIOUS GROUNDS OF APPEAL HAS CHALLENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS. 25,54,125/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE PROPERTY. THE ASSE SSEE HAS ALSO CHALLENGED THE VALIDITY OF THE REASSESSMENT PROCEEDINGS INITIA TED BY THE AO U/S 147/148. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE AS SESSEE IS AN INDIVIDUAL. AS PER THE AIR INFORMATION RECEIVED REGARDING PURCHASE OF PROPERTY FOR RS. 48,68,250/-, THE AO ISSUED NOTICE U/S 148 OF THE I NCOME TAX ACT TO THE ITA NO. 1374/DEL/2017 2 ASSESSEE ON 19 TH MARCH, 2015. THERE WAS NO COMPLIANCE BY THE ASSESS EE WITHIN THE PERIOD OF 30 TH DAYS GIVEN BY THE AO. THEREFORE, THE AO ISSUED ANO THER NOTICE U/S 142(1) OF THE INCOME TAX ACT FIXING THE DATE FOR COMPLIANCE ON 22 ND JANUARY, 2015. THERE WAS AGAIN NON-COMPLIANCE. HE, THEREFORE, ISSUED A SHOW CAUSE NOTICE U/S 144 OF THE IT ACT ON 2 ND MARCH, 2016 FIXING DATE FOR COMPLIANCE ON 9 TH MARCH, 2016. ALTHOUGH THE NOTICE WAS DULY SERVED O N ASSESSEE, STILL THERE WAS NO COMPLIANCE. THE AO, TH EREFORE, COMPLETED THE ASSESSMENT U/S 144 MAKING THE ADDITION OF RS. 25,54 ,125/- AS UNEXPLAINED INVESTMENT. 3. BEFORE THE CIT(A), IT WAS ARGUED THAT THE ASS ESSEE DID NOT RECEIVE THE NOTICES ISSUED BY THE AO U/S 148 OR U/S 142(1) OR T HE SHOW CAUSE NOTICE ISSUED U/S 144, SINCE THE ASSESSEE WAS OUT OF COUNTRY. TH EREFORE, THERE WAS DENIAL OF NATURAL JUSTICE SINCE ASSESSEE WAS NOT GIVEN PROPER OPPORTUNITY OF BEING HEARD. IT WAS SUBMITTED THAT THE ENTIRE PAYMENT WAS MADE B Y THE HUSBAND OF THE ASSESSEE AND THE ASSESSEE HAS NOT SPENT ANYTHING ON HER PART. IT WAS ACCORDINGLY ARGUED THAT ADDITION IF ANY CAN BE MADE IN THE HANDS OF THE HUSBAND. 4. HOWEVER, THE CIT(A) WAS NOT CONVINCED WITH THE A RGUMENTS ADVANCED BY THE ASSESSEE AND DISMISSED THE APPEAL B Y OBSERVING AS UNDER : 6. THE CLAIM OF THE APPELLANT TO BE OUT OF INDIA DURING THE PERIOD 19.03.2015 WHEN NOTICE U/S 148 WAS ISSUED UP TO 12.06.2015 WHEN NOTICE U/S 142(1) WAS ISSUED AND TH EREAFTER, ON 02.03.2016 WHEN NOTICE U/S 144 WAS ISSUED IS NOT BO RNE FROM THE RECORDS SUBMITTED BY THE APPELLANT. FROM THE IMMIGR ATION STAMPINGS OF HER PASSPORT IT IS SEEN THAT SHE HAS B EEN IN INDIA SINCE 10.12.2013 ONWARDS AND THEREFORE WHEN THE NOT ICES WERE ISSUED BY THE LD. A.O. SHE WAS VERY MUCH IN INDIA. IT IS NOT IN ITA NO. 1374/DEL/2017 3 DISPUTE THAT THE NOTICES WERE ISSUED TO THE APPELLA NT ON A ADDRESS WHICH IS GIVEN BY HER AS HER ADDRESS EVERYW HERE INCLUDING IN THE FORM NO. 35 FOR THE PRESENT APPEAL . ONCE THE NOTICES WERE ISSUED AND DELIVERED BY THE LD. A.O. THAT TOO THROUGH THE AGENCY OF THE POSTAL AUTHORITIES ON THE CORRECT ADDRESS, THE APPELLANT CANNOT DISCLAIM HER RESPONSI BILITY ON THE GROUND THAT SHE DID NOT GET THOSE NOTICES. ADMITTED LY, NOTICES WERE CORRECTLY ISSUED AND WERE CORRECTLY DELIVERED ON THE CORRECT ADDRESS AND NON COMPLIANCE BY THE APPELLANT CANNOT BE ACCEPTED ON THE GROUND THAT SHE DID NOT RECEIVED TH E SAME EITHER PERSONALLY OR PHYSICALLY. 7. IN VIEW OF THE VALID SERVICE OF NOTICE AND THE FAILURE OF THE APPELLANT TO COMPLY WITH THE SAME THE IMPUGNED ASSE SSMENT ORDER CANNOT BE INTERFERED WITH. THE SAME IS THEREF ORE CONFIRMED. THE APPEAL OF THE FAILS AND IS DISMISSED . 4.1 AGGRIEVED WITH SUCH ORDER OF CIT(A), THE ASSESSEE I S IN APPEAL BEFORE THE TRIBUNAL. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ALTHOUGH THE ASSESSEE HAS MADE WRITTEN SUBMISSION, THE LD. CIT(A ) HAS NOT CONSIDERED THE SAME. HE SUBMITTED THAT THE ASSESSEE HAS EXPLAINED THAT THE ENTIRE INVESTMENT HAS BEEN MADE BY HER HUSBAND AND THEREFORE, ADDITIO N, IF ANY, SHOULD BE MADE IN HIS HANDS. HE SUBMITTED THAT IT WAS EXPLAI NED BEFORE THE CIT(A) THAT THE NAME OF THE ASSESSEE WAS INSERTED IN THE SALE-D EED FOR THE SAKE OF CONVENIENCE AND FOR SAFETY PURPOSES. HE SUBMITTED THAT SINCE THE LD. CIT(A) HAS NOT PROPERLY APPRECIATED THE FACTS OF THE PRESE NT CASE, THEREFORE, THE MATTER MAY BE RESTORED TO HIS FILE FOR FRESH ADJUDI CATION. ITA NO. 1374/DEL/2017 4 6. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDER OF THE CIT(A). 7. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I FIND THE AO ON THE BASIS OF AIR INFORMATION RECEIVED, SHOWING PURCHASE OF A HOUSE PROPERTY BY THE ASSESS EE FOR RS. 48,68,250/- ISSUED NOTICE U/S 148. SINCE, THERE WAS NO COMPLIAN CE TO THE STATUTORY NOTICES ISSUED BY HIM, HE COMPLETED THE ASSESSMENT U/S 144 OF THE ACT BY MAKING ADDITION OF RS. 25,54,125/- BEING 50% OF THE VALUE OF THE PROPERTY INCLUDING STAMP DUTY. I FIND THE LD. CIT(A) UPHELD THE ADDITI ON MADE BY THE AO AND THE REASONS FOR WHICH HE SUSTAINED THE ADDITION HAS ALR EADY BEEN REPRODUCED IN THE PRECEDING PARAGRAPH. IT IS THE SUBMISSION OF TH E LD. COUNSEL FOR THE ASSESSEE THAT THE LD. CIT(A) HAS NOT CONSIDERED THE DETAILED WRITTEN SUBMISSION FILED BEFORE HIM. HE HAS ALSO NOT CONSIDERED THE SU BMISSION OF THE ASSESSEE THAT THE ENTIRE INVESTMENT WAS MADE BY HER HUSBAND AND HER NAME WAS INSERTED FOR THE SAKE OF CONVENIENCE AND FOR HER SA FETY. I FIND MERIT IN THE ABOVE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSE D. THE WRITTEN SUBMISSION DATED 9 TH JANUARY, 2017 FILED BY THE ASSESSEE, COPY OF WHICH IS PLACED IN THE PAPER BOOK HAS NOT BEEN CONSIDERED BY THE LD. CIT( A). FURTHER IF THE ENTIRE INVESTMENT HAS BEEN MADE BY THE HUSBAND OF THE AS SESSEE THEN NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. HOWEVER, THIS FACT HAS NEVER BEEN PROPERLY CONSIDERED BY THE CIT(A). IT WAS STATED BE FORE THE LD. CIT(A) THAT MR. ASHWANI KUMAR SINGHAL, HUSBAND OF THE ASSESSED, HA D OBTAINED HOUSING LOAN OF RS. 20,00,000/- FROM IDBI BANK AND THE BALANCE AMOUNT OF RS. 28,47,250/- WAS PAID BY HIM OUT OF HIS OWN SOURCES AND ALL PAYM ENTS WERE THROUGH BANKING CHANNEL AND THERE WAS NO CASH TRANSACTION. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTI CE I AM OF THE OPINION THAT THE ITA NO. 1374/DEL/2017 5 MATTER REQUIRES A REVISIT TO THE FILE OF THE CIT(A) . I, THEREFORE, RESTORE THE MATTER TO THE FILE OF THE CIT(A) WITH A DIRECTION T O GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE WITH EVIDENCE TO HIS SATISFACTION THAT THE AMOUNT HAS BEEN PAID BY THE HUSBAND OF THE ASSESSEE OUT OF HIS OWN SOURCE. THE CIT(A) SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND DIRECT ACCORDING LY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL P URPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 16/06/2017) SD/ - [R.K. PANDA] ACCOUNTANT MEMBER DATED: 16 .6.2017 *BINITA* BINI COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR ITA NO. 1374/DEL/2017 6 DATE INITIAL 1. DRAFT DICTATED ON 14/06/2017 2. DRAFT PLACED BEFORE AUTHOR 15/06/2017 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. ITA NO. 1374/DEL/2017 7