Sh. Net Ram, Haridwar V. ITO, Haridwar

ITA 139/DEL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4748 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 26-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 10-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.139/DEL/2012 139/DEL/2012 139/DEL/2012 139/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 SHRI NET RAM, SHRI NET RAM, SHRI NET RAM, SHRI NET RAM, S/O SHRI SHOBHA RAM, S/O SHRI SHOBHA RAM, S/O SHRI SHOBHA RAM, S/O SHRI SHOBHA RAM, C/O S.K.MONGA & AS C/O S.K.MONGA & AS C/O S.K.MONGA & AS C/O S.K.MONGA & ASSOCIATES, SOCIATES, SOCIATES, SOCIATES, UPHAR, 312 UPHAR, 312 UPHAR, 312 UPHAR, 312- -- -313, GOVINDPURI, 313, GOVINDPURI, 313, GOVINDPURI, 313, GOVINDPURI, HARIDWAR HARIDWAR HARIDWAR HARIDWAR 249 401, 249 401, 249 401, 249 401, UTTARAKHAND. UTTARAKHAND. UTTARAKHAND. UTTARAKHAND. PAN : PAN : PAN : PAN : AJHPR6749R. AJHPR6749R. AJHPR6749R. AJHPR6749R. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -2, 2,2, 2, HARIDWAR, HARIDWAR, HARIDWAR, HARIDWAR, D DD D- -- -29 2929 29- -- -30, INDUSTRIAL AREA, 30, INDUSTRIAL AREA, 30, INDUSTRIAL AREA, 30, INDUSTRIAL AREA, HARIDWAR HARIDWAR HARIDWAR HARIDWAR 249 401. 249 401. 249 401. 249 401. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE. RESPONDENT BY : SHRI SAMEER SHARMA, SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED CIT(A)-II, DEHRADUN DATED 17 TH NOVEMBER, 2011 FOR THE AY 2008-09. 2. IN THIS CASE, THE ASSESSEE, VIDE LETTER DATED 11 TH JUNE, 2012, STATED THAT HE IS NOT IN A POSITION TO PAY FEES AND TRAVELING EXPENSES TO THE COUNSEL, THEREFORE, HIS APPEAL SHOULD BE DECIDE D ON THE BASIS OF WRITTEN SUBMISSION IN THE PAPER BOOK. THE SAME IS REITERATED VIDE LETTER DATED 30 TH OCTOBER, 2012. ON THE DATE OF HEARING TODAY, NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, HIS APPEAL IS BEING DECIDED CONSIDERING HIS WRITTEN SUBMISSION AS WELL AS THE PAPER BOOK. 3. IN THIS APPEAL, FOLLOWING GROUNDS ARE RAISED:- 1. THAT THERE IS NO JUSTIFICATION SUBSISTED ON THE PART OF THE LD.AUTHORITY BELOW IN FRAMING THE ASSESSMENT. AS PER ITA-139/DEL/2012 2 THE NORMS OF THE C.B.D.T. IF ANY CASE IS SELECTED, IN ADDITION TO ABOVE THERE IS A C.C.I.T./D.G.I.T. (INT ERNATIONAL TAXATION)/D.G.I.T. (EXEMPTIONS), ON A MATTER HAVING BEEN BROUGHT TO HIS NOTICE BY AN AUTHORITY BELOW, IS SAT ISFIED THAT THE CASE NEEDS TO BE TAKEN UP FOR SCRUTINY THE CCIT/DGIT (INTERNATIONAL TAXATION)/DGIT(EXEMPTIONS) , FOR THE REASONS TO BE RECORDED IN WRITING MAY APPROVE T HE SELECTION OF THE CASE FOR SCRUTINY. THE A.O. HAS NOT FOLLOWED THE PRESCRIBED PROCEDURE, HENCE THE ORDER HAS BEEN FRAMED U/S 143(3) OF THE I.T.ACT, 1961 IS VOID AB INITIO. 2. THAT THE ADDITION OF RS.15000/- AS HAS BEEN MADE IS ARBITRARY, UNJUST AND AGAINST THE PROVISIONS OF LAW BECAUSE THE A.O. HAS NOT POINTED OUT ANY SPECIFIC ITEM REGA RDING HIS OBSERVATIONS IN THE ORDER AND MADE THE ADDITION ON THE BASIS OF PRESUMPTIONS AND CONJECTURES, WHICH HAS NO PLACE IN THE EYES OF LAW. 3. THAT THE DETERMINED FORWARD LOSS OF THE A.Y. 200 7-08 OUGHT TO BE ALLOWED DURING THE A.Y. 2008-09 BECAUSE THIS HAS BEEN ACCEPTED DURING THE PREVIOUS ASSESSMENT YE AR AND THE LEGAL POSITION AS HAS BEEN MENTIONED BY THE LD.A.O. IS NOT CORRECT IN THE PRESENT CASE. THE AS SESSEE HAS NOT CLAIMED ANY CARRIED FORWARD LOSS DURING THE YEA R UNDER APPEAL. THE LOSS WAS CARRIED FORWARD DURING THE A. Y. 2007- 08 AND IT WAS BROUGHT FORWARD DURING THE A.Y. 2008- 09. 4. THAT WITHOUT PREJUDICE TO GROUND NO.1 TO3 ABOVE, THE ASSESSMENT AS HAS BEEN COMPLETED ON A TOTAL INCOME OF RS.15,46,330/- AS AGAINST THE RETURNED INCOME OF RS.13,39,240/- AND DEMAND CREATED THEREON ALONGWITH INTEREST IS ARBITRARY, UNJUST AND IMPROPER AGAINST THE PROVISIONS OF LAW. 4. WE HAVE HEARD THE LEARNED DR AND PERUSED THE ASS ESSEES WRITTEN SUBMISSIONS AS WELL AS THE ORDER OF LEARNED CIT(A). WE FIND THAT LEARNED CIT(A) HAS NOT ADJUDICATED THE ASSESSE ES APPEAL ON MERITS BUT DISMISSED THE SAME IN LIMINE BECAUSE THE TAX DUE ON THE RETURNED INCOME HAS NOT BEEN PAID. THE ORDER OF LE ARNED CIT(A) IS REPRODUCED BELOW FOR READY REFERENCE:- THIS APPEAL IS PREFERRED AGAINST THE ASSESSMENT OR DER DATED 24.12.2010 PASSED U/S 143(3) OF IT ACT, 1961 ITA-139/DEL/2012 3 (HEREAFTER THE ACT) BY THE ITO, WARD-2, HARDWAR FOR THE ASSESSMENT YEAR 2008-09. 2. IT HAS BEEN NOTICED THAT IN THIS CASE THE ENTIRE QUANTUM OF TAXES DUE AS PER RETURN OF INCOME FILED BY THE ASSESSEE HAVE NOT BEEN PAID. THIS CLEARLY MAKES TH IS APPEAL UNTENABLE AS PER THE SPECIFIC DIRECTIVE CONT AINED IN SECTION 249(4) OF THE ACT. 3. IT WAS NOTICED THAT THE ITNS 51 FILLED UP BY THE AO HAD LEFT THE COLUMN 8 WHICH REQUIRES SPECIFIC INFOR MATION ABOUT TAXES PAID ON THE INCOME RETURNED, BLANK. ACCORDINGLY, THE AO WAS ASKED TO SUBMIT A REPORT ON THIS MATTER. THE AO, VIDE LETTER DATED 21.11.2011 HAS I NFORMED THAT THE TAXES OF RS.4,81,100/- WORKED OUT ON THE R ETURNED INCOME HAVE BEEN PAID ONLY TO THE EXTENT OF RS.2,00 ,000/-. THE AO HAS REQUESTED TO CONSIDER THE ITNS 51 AMENDE D TO THIS EXTENT. 3.1 IT IS FURTHER SEEN THAT THE FORM NO.35 FOR FILI NG APPEALS ALSO HAVE A COLUMN FOR INDICATING THE TAXES PAID ON INCOME AS PER RETURN. THIS COLUMN HAS BEEN FILLED UP BY THE APPELLANT IN THE FOLLOWING MANNER:- AS PER THE RECORD. 3.2 THUS CLEARLY THE ENTIRE AMOUNT OF TAXES DUE HAV E NOT BEEN PAID ON THE INCOME RETURNED FOR REASONS BEST K NOWN TO THE APPELLANT. SINCE THE DIRECTIVE U/S 249(4) O F THE ACT IS CLEAR ON THIS ISSUE, THIS APPEAL CANNOT BE ADJUD ICATED. ACCORDINGLY, IT IS DISMISSED IN LIMINIE. 4. IN THE RESULT, THE APPEAL IS DISMISSED. 5. HOWEVER, FROM THE GROUNDS OF APPEAL REPRODUCED A BOVE, WE FIND THAT THE ASSESSEE HAS NOT RAISED ANY GROUND AGAINST THE DISMISSAL OF THE ASSESSEES APPEAL IN LIMINE BY THE LEARNED CIT(A). THE GROUNDS RAISED BY THE ASSESSEE ARE NOT ARISING FROM THE ORD ER OF LEARNED CIT(A) AND THE ISSUE ARISING OUT OF THE ORDER OF LEARNED C IT(A) HAS NOT BEEN RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. T HOUGH IN THE WRITTEN SUBMISSION, THE ASSESSEE HAS EXPLAINED THAT IT HAS MADE THE PAYMENT OF TAXES, PERHAPS PART OF THE TAX BEFORE THE ORDER OF LEARNED CIT(A) AND PART OF THE TAXES AFTER THE ORDER OF LEARNED CIT(A) . HOWEVER, THE ITAT ITA-139/DEL/2012 4 HAS TO ADJUDICATE THE APPEAL AS PER THE GROUNDS OF APPEAL RAISED BEFORE IT. SINCE THERE IS NO GROUND RAISED BY THE ASSESSEE AGAINST THE DISMISSAL OF APPEAL IN LIMINE , WE CANNOT EXPRESS ANY OPINION THEREON. THE GROUNDS RAISED BY THE ASSESSEE ARE NOT ARISING OUT OF THE ORDER OF LEARNED CIT(A). IN VIEW OF THE ABOVE, WE FIND NO M ERIT IN THE ASSESSEES APPEAL. THE SAME IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST, 2013. SD/- SD/- ( (( (CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 27.08.2013 VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI NET RAM, S/O SHRI SHOBHA RAM, SHRI NET RAM, S/O SHRI SHOBHA RAM, SHRI NET RAM, S/O SHRI SHOBHA RAM, SHRI NET RAM, S/O SHRI SHOBHA RAM, C/O S.K. C/O S.K. C/O S.K. C/O S.K.MONGA & ASSOCIATES, MONGA & ASSOCIATES, MONGA & ASSOCIATES, MONGA & ASSOCIATES, UPHAR, 312 UPHAR, 312 UPHAR, 312 UPHAR, 312- -- -313, GOVINDPURI, 313, GOVINDPURI, 313, GOVINDPURI, 313, GOVINDPURI, HARIDWAR HARIDWAR HARIDWAR HARIDWAR 249 401, UTTARAKHAND. 249 401, UTTARAKHAND. 249 401, UTTARAKHAND. 249 401, UTTARAKHAND. 2. RESPONDENT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -2, HARIDWAR, 2, HARIDWAR, 2, HARIDWAR, 2, HARIDWAR, D DD D- -- -29 2929 29- -- -30, INDUSTRIAL AREA, HARIDWAR 30, INDUSTRIAL AREA, HARIDWAR 30, INDUSTRIAL AREA, HARIDWAR 30, INDUSTRIAL AREA, HARIDWAR 249 401. 249 401. 249 401. 249 401. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR