Neetu Tayal, Gautam Budh Nagar V. ITO, Ward- 2(3), Noida

ITA 1401/DEL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0187 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 20-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJOG KAPOOR
• Keywords: Unexplained cash credit; Principle of natural justice
• Section: 142(1); 143(2); 139(1); 139(4); 147; 148

Judgement Text

, . . IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, SMC NEW DELHI , MS. SUSHMA CHOWLA, JUDICIAL MEMBER . / ITA NO.1401/DEL/2019 / ASSESSMENT YEAR: 2010-11 SMT. NEETU TAYAL, W/O- SH. SACHIN KUMAR TAYAL ............ /APPELLANT MATA WALI GALI, DANKAUR, DISTT. GB NAGAR, U.P. PAN-AJQPT4653H VS ITO, WARD-2(3), . / RESPONDENT NOIDA / APPELLANT BY :SMT. SOMIL AGGARWAL, ADV SH. DEEPESH GARG, ADV / RESPONDENT BY : SH. SANJOG KAPOOR, SR. DR / DATE OF HEARING : 05.12.2018 / DATE OF PRONOUNCEMENT: 31.12.2019 / ORDER PER SUSHMA CHOWLA, JM: THE PRESENT APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT(A)-I, NOIDA, DATED 28/09/2018, RELATING TO ASSESSMENT YEA R 2010-11 AGAINST ORDER PASSED UNDER SECTION 147 R.W.S. 144 OF THE IN COME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL:- . / ITA NO. 1401/DEL/2019 PAGE | 2 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT ADM ITTING THE APPEAL AND THAT TOO ON THE GROUND THAT DUE TAX HAS NOT BEEN PAID U/S 249(4)(B), MORE SO WHEN THERE IS NO VIOLATION O F THAT SECTION AS THE ASSESSEE HAS FILED HER RETURN ON 31-03-2011 AND TAX PAID ON THE RETURNED INCOME. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, AC TION OF LD. CIT(A) IN NOT ADMITTING THE APPEAL AND DISMISSING T HE SAME IN LIMINE, IS BAD IN LAW AND AGAINST THE FACTS AND CIR CUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHIN G THE IMPUGNED REASSESSMENT ORDER PASSED BY LD. A.O WITHO UT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLY ING WITH MANDATORY CONDITIONS U/S 147 TO 151 AS ENVISAGED UN DER THE INCOME TAX ACT, 1961. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHIN G THE IMPUGNED REASSESSMENT ORDER PASSED BY LD. AO ON THE GROUND THAT MANDATORY NOTICES U/S 148, 142(1), 143(2) AND SHOW CAUSE NOTICE WERE NOT SERVED UPON THE ASSESSEE. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN PASSING THE IMPUGNED ORDER AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND BY RECORDING INCORRECT FACTS AND FINDINGS AND IN VI OLATION OF PRINCIPLES OF NATURAL JUSTICE. 3. THOUGH THE ASSESSEE HAS RAISED SEVERAL GROUNDS O F APPEAL, BUT THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IS VIDE GR OUND NO.2, WHEREIN, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE CIT(A) IN NOT ADMITTING THE APPEAL AND DISMISSING THE SAME IN-LIMINE AS BAD IN LAW. THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE CIT(A) IN HOLDING THAT DUE TAXE S WERE NOT PAID UNDER SECTION 249(4)(B) OF THE ACT. 4. BRIEFLY IN THE FACTS OF THE CASE, AN INFORMATION WAS RECEIVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD DEPOSITED R S.12,75,600/- IN CASH . / ITA NO. 1401/DEL/2019 PAGE | 3 IN HER BANK ACCOUNT MAINTAINED WITH STATE BANK OF I NDIA, DANKAUR, UTTAR PRADESH. THE ASSESSING OFFICER ISSUED VERIFICATION LETTER TO THE ASSESSEE, AGAINST WHICH NO REPLY WAS FILED BY THE ASSESSEE. T HE ASSESSING OFFICER THEN RECORDED REASONS FOR REOPENING THE ASSESSMENT UNDER SECTION147 OF THE ACT AND NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE. IN COMPLIANCE, THE ASSESSING OFFICER NOTI CED THAT THE ASSESSEE DID NOT FURNISH ANY INFORMATION NOR ANY COMPLIANCE WAS MADE. THE ASSESSING OFFICER THUS COMPLETED THE ASSESSMENT UND ER SECTION 147 R.W.S. 144 OF THE ACT AND TREATED THE SUM OF RS.12,75,600/ - AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSESSEE. 5. THE CIT(A) HAS DECIDED THE APPEAL EX-PARTE BASED ON THE PAPER BOOK FILED BY THE ASSESSEE. VIDE PARA 10 OF THE APPELLAT E ORDER, THE CIT(A) NOTES THAT THE APPEAL IS BEING DECIDED WITH REFERENCE TO FORM NO.35, THE IMPUGNED ASSESSMENT ORDER AND THE PAPER BOOK FILED BY THE ASSESSEE. ANOTHER POINT WHICH WAS NOTED WAS THAT THERE WAS NO DISPUTE BETWEEN THE PARTIES THAT NO RETURN OF INCOME WAS FILED IN RESPO NSE TO NOTICE UNDER SECTION 148 OF THE ACT NOR UNDER SECTION 142(1) OF THE ACT. THE ASSESSING OFFICER ALSO HAD NOT ISSUED ANY NOTICE UNDER SECTIO N 143(2) OF THE ACT. VIDE PARA14 AND 15, THE CIT(A) NOTES THE PROVISIONS OF S ECTION 249 OF THE ACT AND HOLD VIDE PARA 16 THAT UNDER THE PROVISIONS OF SECTION 249(4)(B) OF THE ACT, WHERE THE ASSESSEE HAD NOT FILED THE RETURN O F INCOME, THEN THE APPEAL OF THE ASSESSEE COULD BE ADMITTED ONLY IF TH E ASSESSEE AT THE TIME OF FILING OF THE APPEAL HAD PAID AN AMOUNT EQUAL TO TH E AMOUNT OF ADVANCE . / ITA NO. 1401/DEL/2019 PAGE | 4 TAX, WHICH WAS PAYABLE BY HIM. VIDE PARA-17, THE C IT(A) FURTHER OBSERVES THAT ADMITTEDLY IN THE INSTANT CASE, THE ASSESSEE H AD NOT FILED ANY RETURN OF INCOME EITHER ON ITS OWN UNDER THE PROVISIONS OF SECTION 139(1) OR SECTION 139(4) OF THE ACT OR IN RESPONSE TO NOTICE UNDER SECTION 148 OR 142(1) OF THE ACT AND THEREFORE, THE PROVISIONS OF SECTION 249(4)(B) OF THE ACT WOULD APPLY. VIDE PARAS 41 AND 42, THE CIT(A) F URTHER OBSERVES THAT IN THE INSTANT CASE, NO PRAYER HAS BEEN MADE BY THE AS SESSEE EITHER IN THE FORM NO.35 OR IN THE PAPER BOOK FOR GRANT OF EXEMPT ION UNDER SECTION 249(4)(B) OF THE ACT AND HENCE THE APPEAL WAS HELD TO BE NOT ADMISSIBLE. THE CIT(A) FURTHER HOLDS THAT IN CASE, THE ASSESSEE HAD GOOD AND SUFFICIENT REASONS FOR GRANTING EXEMPTION FROM THE MISCHIEF OF SECTION 249(4)(B) OF THE ACT, THEN SAID EXEMPTION COULD HAVE BEEN GRANTE D TO THE ASSESSEE. HOWEVER, AS THE ASSESSEE HAD NOT DEPOSITED THE TAX EQUAL TO THE ADVANCE TAX ON ITS INCOME, THE APPEAL WAS HELD TO BE HIT BY THE MISCHIEF OF SECTION 249(4)(B) AND IN VIEW OF THE BAR UNDER THE SAID SEC TION, THE APPEAL OF THE ASSESSEE WAS NOT ADMITTED AND DISMISSED IN LIMINE . 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF T HE CIT(A). 7. THE LD. AR FOR THE ASSESSEE AFTER TAKING US THRO UGH THE VARIOUS PARAS OF ORDER OF CIT(A), POINTED OUT THAT IN THE C ASE OF THE ASSESSEE, IT HAD FILED THE RETURN OF INCOME ALONG WITH COMPUTATION O F INCOME AND HAD PAID THE TAXES DUE AND HENCE, THE PROVISIONS OF SECTION 249(4)(B) OF THE ACT WERE NOT APPLICABLE. THE LD. AR FOR THE ASSESSEE PO INTED OUT THAT THE ORDER OF THE CIT(A) SUFFERS FROM INFIRMITY IN THIS REGARD , IN NOT TAKING INTO . / ITA NO. 1401/DEL/2019 PAGE | 5 ACCOUNT, THE STATEMENT OF FACTS FILED IN THE FORM N O.35 ITSELF. HE FURTHER POINTED OUT THAT THE FURTHER OBSERVATIONS OF THE CI T(A) IN PARAS 87 TO 108 AT PAGES 46 TO 54 OF THE APPELLATE ORDER WERE UNNE CESSARY AND NOT WARRANTED. 8. THE LD. DR FOR THE REVENUE FAIRLY POINTED OUT TH AT THE STAND OF THE ASSESSEE OF HAVING FILED THE RETURN OF INCOME MAY B E VERIFIED. 9. ON PERUSAL OF THE RECORD AND AFTER HEARING BOTH THE AUTHORIZED REPRESENTATIVES, THE FIRST JURISDICTIONAL ISSUE WHI CH IS RAISED IN THE PRESENT APPEAL IS AGAINST THE ORDER OF DISMISSAL BY THE CIT (A) IN DISMISSING THE APPEAL IN LIMINE FOR NOT FULFILLING THE CONDITIONS LAID DOWN IN SEC TION 249(4)(B) OF THE ACT. THE CASE OF THE CIT(A) IS THA T WHERE THE ASSESSEE HAS FAILED TO FILE THE RETURN OF INCOME BEFORE THE ASSE SSING OFFICER AND HAD NOT PAID THE TAXES ON THE SAID INCOME, THE APPEAL OF TH E ASSESSEE IS HIT BY THE PROVISIONS OF SECTION 249(4)(B) OF THE ACT AND THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH ITS CASE OF GETTING EXEMPTION FRO M THE PROVISIONS OF SUB- CLAUSE (B) ON ANY GOOD AND SUFFICIENT REASON. THE C IT(A) IN THE INITIAL PARAS HAS TIME AND AGAIN TALKED ABOUT DECIDING THE APPEAL ON THE BASIS OF FORM NO.35 ITSELF. THIS IS SO BECAUSE THE ASSESSEE DID N OT APPEAR IN RESPONSE OF NOTICE ISSUED BUT DID FILE PAPER BOOK WHICH IS, ACK NOWLEDGED BY THE CIT(A) IN PARA 2 OF THE APPELLATE ORDER ITSELF. . / ITA NO. 1401/DEL/2019 PAGE | 6 10. FIRST, LET US LOOK AT FORM NO.35 ITSELF, WHERE THE ASSESSEE HAS ALSO FILED THE STATEMENT OF FACTS. THE FIRST ITEM IN THE STATEMENT OF FACTS READS AS UNDER:- 1. THE APPELLANT IS AN INDIVIDUAL AND REGULARLY AS SESSED TO TAX BY ITO, WARD 2, NOIDA, THE RETURN OF INCOME FOR A.Y. 2010-1 1 WAS FILED PHYSICALLY ON 31/03/2011 VIDE RECEIPT NO.0302020362 DECLARING TOTAL INCOME OF RS.194860/-. 11. NOW, LET US LOOK AT THE PAPER BOOK WHICH IS FIL ED BEFORE THE CIT(A), COPY OF WHICH HAS ALSO FILED BEFORE US WHEREIN THE PARTICULARS ARE AS UNDER:- 1. COPY OF PAPER BOOK FILED BY ASSESSEE BEFORE LD. CIT(A):- A) COPY OF ACKNOWLEDGMENT OF RETURN FILED ON 31/03/201 1 FOR AY 2010-11. B) COPY OF BANK STATEMENT OF ASSESSEE FOR THE IMPUGNED YEAR. C) COPY OF APPROVAL ACCORDED UNDER SECTION151 ALONG WI TH THE REASONS RECORDED D) COPY OF NOTICE UNDER SECTION148 DATED AY 2011-12 E) COPY OF NOTICE UNDER SECTION142(1) DATED 08/08/2017 AND 04/09/2017. F) COPY OF THE APPLICATION FILED BY ASSESSEE UNDER RTI G) COPY OF REPLY DATED 26/02/2018 RECEIVED IN RESPONSE OF RTI APPLICATION OF ASSESSEE H) COPY OF APPEAL FILED BEFORE LD. ADDL. CIT AGAINST T HE REPLY RECEIVED IN RESPONSE OF RTI ALONG WITH THE ORDER DI SPOSING APPEAL. I) COPY OF APPEAL FILED BEFORE CHIEF INFORMATION OFFIC ER J) COPY OF RECORD FROM DANKAUR CENTRE OF SUPPLIES OFFI CES AND COPY OF CHEQUES AND DRAFT MADE IN FAVOUR OF RAJYA S ARVANANIK VIRAN PRANALI. K) COPY OF BILLS FOR PROCUREMENT OF KEROSENE OILY L) COPY OF ENTRY WISE EXPLANATION OF BANK STATEMENT OF ASSESSEE . / ITA NO. 1401/DEL/2019 PAGE | 7 M) COPY OF SUMMARIZED RECEIPTS AND PAYMENT A/C FOR THE ASSESSEES BANK ACCOUNT. N) COPY OF BILLS OF FOOTWARE PURCHASED BY M/S KANHA SH OE PLACE O) COPY OF UNREPORTED JUDGMENTS 2. COPY OF WRITTEN SUBMISSIONS FILED BEFORE LD. CIT (A) 12. THE SAID ACKNOWLEDGMENT REFLECTS PAYMENT OF TAX ES AT RS.550/- ONLY. FURTHER, THE ASSESSEE SOUGHT CERTAIN INFORMAT ION UNDER RTI, COPY OF THE APPLICATION IS PLACED AT PAGE 12 WITH REGARD TO THE PROCEEDINGS UNDER SECTION 148, SERVICE OF NOTICE UNDER SECTION 148 AN D ALSO UNDER SECTION 142(1) OF THE ACT. THE ASSESSEE RECEIVED CERTAIN IN FORMATION VIDE REPLY DATED 26/02/2018, PLACED AT PAPER BOOK PAGE 13, AGA INST WHICH APPEAL WAS FILED BEFORE THE ADDL. CIT AND THEN APPEAL WAS ALSO FILED BEFORE THE CHIEF INFORMATION OFFICER. HOWEVER, WE ARE NOT ENTE RING INTO FIELD OF WHETHER NOTICE UNDER SECTION148/142(1) OF THE ACT W AS ISSUED TO THE ASSESSEE, AT PRESENT. WE ARE DECIDING THE PRELIMINA RY ISSUE THAT WHERE THE ASSESSEE HAD FURNISHED THE RETURN OF INCOME AND PAI D TAXES DUE THEREON, THEN THE ORDER OF THE CIT(A) SUFFERS FROM INFIRMITY IN APPLYING THE PROVISIONS OF SECTION 249(4)(B) OF THE ACT. THE CAS E OF THE ASSESSEE FALLS WITHIN THE PROVISIONS OF SECTION 249(4)(A) OF THE A CT, HENCE IT WAS INCUMBENT UPON THE CIT(A) TO DECIDE THE ISSUE ON ME RITS AND NOT DISMISS THE APPEAL IN LIMINE . ACCORDINGLY, IT IS DEEM FIT TO REMIT THE ISSUE BA CK TO THE CIT(A) TO DECIDE THE ISSUE RAISED ON MERITS AFT ER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSE E IS ALSO DIRECTED TO COMPLY WITH THE NOTICES ISSUED BY THE CIT(A). WE DE CIDE THE PRESENT . / ITA NO. 1401/DEL/2019 PAGE | 8 APPEAL ON PRELIMINARY ISSUE ITSELF AND REMIT THE MA TTER BACK TO THE FILE OF CIT(A) WITH OUR DIRECTIONS. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DAY OF DECEMBER, 2019. SD/- (SUSHMA CHOWLA) /JUDICIAL MEMBER / DATED : 31 ST DEC, 2019 S.SHEKHAR, SR. P.S. / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ! ( ) / THE C IT(A) 4. # ! / THE PR. CIT 5. 6. , , ' / DR, ITAT, DELHI ) / GUARD FILE. / BY ORDER , -. , , ASSISTANT REGISTRAR, ITAT, DELHI . / ITA NO. 1401/DEL/2019 PAGE | 9 DRAFT DICTATED 30/12/2019 DRAFT PLACED BEFORE AUTHOR 31/12/2019 APPROVED DRAFT COMES TO THE SR.PS/PS ORDER SIGNED AND PRONOUNCED ON FILE SENT TO THE BENCH CLERK .12.2019 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER. 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