Krishna Narain Kapoor, V. Income Tax Officer-1(2), Kanpur

ITA 144/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4378 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-07-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 21-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.144/LKW/2016 ASSESSMENT YEAR 2004-05 INCOME TAX OFFICER-1(2), KANPUR VS KRISHNA NARAIN KAPOOR, 72, MAKRAND NAGAR, KANNAUJ-209725 PAN ADWPK 1330 J (RESPONDENT) (APPELLANT) SHRI P.K. KAPOOR, CA APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 11/07/2016 DATE OF HEARING 14 /07/2016 DATE OF PRONOUNCEMENT O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A)-I, KANPUR, INTER ALIA ON FOLLOWING GROUNDS:- 1. BECAUSE 'CIT(A)' WAS NOT JUSTIFIED IN DISMISSIN G THE APPEAL BY PASSING AN EX-PARTE ORDER DATED 16.12.2015 WITHOUT GIVING DUE AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 2. BECAUSE THE ORDER PASSED BY 'CIT(A)' IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE, THEREFORE THE SAME DESERVES TO BE SET ASIDE AND RESTORED TO HIS FILE FOR BEING DECIDED AFRESH AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE 'ASSESSEE/APPELLA NT'. WITHOUT PREJUDICE TO THE ABOVE 3. BECAUSE THE ASSISTANT COMMISSIONER OF INCOME TA X-1, KANPUR WAS NOT VESTED WITH THE JURISDICTION OF ASSESSING OFFIC ER OVER THE APPELLANT THEREFORE NOTICE UNDER SECTION 148 DATED 23.03.2011 ISSUED BY HIM WAS WITHOUT JURISDICTION AND AS SUCH 'CIT(A)' SHOULD HAVE HELD THE REASSESSMENT PROCEEDINGS AS VOID ABIN ITIO. 2 4. WITHOUT PREJUDICE TO GROUND NO. 3, BECAUSE THER E WAS NO VALID TRANSFER OF JURISDICTION FROM ASSISTANT COMMI SSIONER OF INCOME- TAX-I, KANPUR TO INCOME-TAX OFFICER-1 (2), KANPUR, THE 'CIT(A)' SHOULD HAVE HELD THE REASSESSMENT ORDER DATED 29.12 .2011 PASSED BY THE ITO-1(2), KANPUR AS WITHOUT JURISDICTION AND HENCE NULL AND VOID. 5. BECAUSE OBJECTION TO THE JURISDICTION RAISED BE FORE THE ASSISTANT COMMISSIONER OF INCOME TAX-1, KANPUR HAVING NOT BEE N DISPOSED OF IN ACCORDANCE WITH THE PROVISIONS OF THE 'ACT', THE 'CIT(A)' SHOULD HAVE HELD THAT THE ASSESSMENT ORDER DATED 29.12.201 1 WAS NOT ENFORCEABLE. 6. BECAUSE 'REASONS RECORDED7 BY THE ASSISTANT COMM ISSIONER OF INCOME TAX-1, KANPUR DID NOT MEET THE REQUIREMENT O F LAW IN AS MUCH AS THE REASONS RECORDED WERE BASED ON DVO'S RE PORT THEREFORE THE ADDITION BASED ON DVO'S REPORT SHOULD HAVE BEEN DELETED BY THE 'CIT(A)' AS NOT SUSTAINABLE. 7. BECAUSE NO NOTICE UNDER SECTION 143(2) OF THE ' ACT' WAS ISSUED AFTER FILING OF RETURN IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE 'ACT' THE ASSESSMENT ORDER DATED '29.12.2011 PASSED BY THE INCOME-TAX OFFICER-L(2) KANPUR SHOULD HAVE BEEN HEL D AS NULL AND VOID. 8. BECAUSE REFERENCE TO DVO UNDER SECTION 142A AND 131(L)(B) OF THE 'ACT' BEFORE RECORDING REQUISITE SATISFACTION AND R EJECTING BOOKS OF ACCOUNTS IS BAD IN LAW AND CONSEQUENTLY THE ADDITIO N MADE ON THE BASIS OF DVO'S REPORT IS ILLEGAL AND THE SAME DESER VES TO BE DELETED. 9. BECAUSE IN ANY CASE THE DIFFERENCE BETWEEN INVES TMENT VALUE DECLARED BY THE ASSESSEE AND THE VALUE ESTIMATED BY DVO IS BELOW 10%, THE ADDITION OF RS. 2,08,258/-WAS LIABLE TO BE IGNORED IN VIEW OF SEVERAL JUDICIAL PRONOUNCEMENTS AND AS SUCH THE ADDITION OF RS.2,08,258/- DESERVED TO BE DELETED. 10. BECAUSE EVEN ON MERITS, DVO'S ESTIMATES CONTAIN ED SEVERAL DISCREPANCIES AND THE OBJECTION TO SUCH ESTIMATES R AISED BY THE 'APPELLANT' NOT DEALT WITH BY THE DVO/ ASSESSING OF FICER, THE ADDITION MADE ON THE BASIS OF SUCH DISCREPANT DVO R EPORT IS NOT SUSTAINABLE. 3 2. DURING THE COURSE OF HEARING, LD. COUNSEL FOR T HE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT CIT(A) HAS N OT DISPOSED OF THE APPEAL ON MERIT BUT DISMISSED THE APPEAL IN LIMINE, WHEREAS THE CIT(A) WAS REQUIRED TO ADJUDICATE THE APPEAL ON MERIT EVEN IF THE ASSESSEE DID NOT APPEAR. 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A), I FIND THAT CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE AND HAS RECORDED THAT ON VARIOUS DATES ASSESSEE APPEARED AN D SOUGHT ADJOURNMENT. THOUGH CIT(A) HAS WRITTEN FEW LINES WI TH RESPECT TO ISSUE ON MERIT BUT ITS PERUSAL DOES NOT APPEAR TO ME THAT HE APPLIED HIS MIND TO THE FACTS ON MERIT. I, THEREFORE, SET ASIDE THE ORD ER OF CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH THE DIRECTION TO READJU DICATE THE APPEAL ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- (S.K. YADAV ) JUDICIAL MEMBER DATED: 14/07/2016 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR