Sh. Amarjeet Singh Rainu, Ghaziabad V. ITO, Ghaziabad

ITA 1445/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7350 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 15-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 11-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V R SONBHADRA
• Keywords: Gift
• Section: 143(3); 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC-I : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER ITA NO.1445/DEL/2014 ASSESSMENT YEAR : 2008-09 AMARJEERT SINGH RAINU, C/O AKHILESH KUMAR, ADVOCATE, CHAMBER NO.206-207, ANSAL SATYAM, RDC RAJ NAGAR, GHAZIABAD.. PAN: ABVPR9194A VS. ITO, WARD-1(1), GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AKHILESH KUMAR, ADVOCATE DEPARTMENT BY : SHRI V.R. SONBHADRA, SR. DR DATE OF HEARING : 15. 06.2016 DATE OF PRONOUNCEMENT : 16.06.2016 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER PASSED BY THE CIT(A) ON 29.10.2013 IN RELATION TO THE ASSESSM ENT YEAR 2008-09. 2. THE FIRST TWO GROUNDS ARE AS UNDER:- ITA NO.1445/DEL/2014 2 1. BECAUSE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE NOTICE U/S 143(2) OF THE IT ACT, 1961 IS NEVER SERVED UPON THE ASSESSEE AND EVE N NEITHER ASSESSEE APPEARED NOR CO-OPERATED IN ASSESSMENT PROCEEDINGS HENCE ENTIRE ASSESSMENT PROCEEDINGS ARE VOID AB INITIO . 2. BECAUSE, IN ADDITION TO ABOVE THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) FURTHER ERRED IN NOT APPRECIAT ING THE FACT THAT NOTICE IS STATED TO BE SERVED ON A TEN YEAR OLD ADD RESS, THOUGH CORRECT ADDRESS WAS ON THE RETURN ITSELF AND DESPITE NO COM PLIANCE/NO APPEARANCE NO EFFORT IS MADE TO SERVE THE NOTICE U/ S 143(2) AT THE CORRECT ADDRESS AND HENCE ORDER PASSED U/S 144 IS B EYOND JURISDICTION. 3. BRIEFLY STATED, THE FACTS OF THE CASE AS CULLED OUT FROM THE ASSESSMENT ORDER ARE THAT THE ASSESSEE FILED HIS RE TURN WHICH WAS PROCESSED U/S 143(1) OF THE ACT. A NOTICE DATED 14 .8.2009 U/S 143(2) GENERATED ON THE SYSTEM WAS ISSUED AND SERVED THROU GH AFFIXTURE BY ITI AT THE ADDRESS WHICH APPEARED ON THE NOTICE U/S 143 (2) GENERATED BY THE SYSTEM WZ 32, CHUKHANDI POST OFFICE, TILAK NAGAR, NEW DELHI. THE ASSESSMENT ORDER RECORDS THAT : `THE ITI HAS REPORT ED THAT AT THE GIVEN ADDRESS THE ASSESSEE DO NOT RESIDE DUE TO WHICH NOT ICE WAS SERVED BY AFFIXTURE. IN THE ABSENCE OF ANY PARTICIPATION FR OM THE SIDE OF THE ASSESSEE, THE ASSESSMENT WAS COMPLETED U/S 144 OF T HE ACT, MAKING AN ITA NO.1445/DEL/2014 3 ADDITION OF RS.12.41 LAC. THE LD. CIT(A) UPHELD TH E ASSESSMENT ORDER. AGGRIEVED THEREBY, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. THE ABOVE EXTRACTED TWO GROUNDS PROJECT THE GRI EVANCE OF THE ASSESSEE IN NON-SERVICE OF NOTICE BY THE AO U/S 143 (2). THE LD. AR STATED THAT THE ASSESSEE WAS EARLIER ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF GIFTS, ETC., WHICH WAS LATER ON CONVERT ED TO PRECIOUS METALS ALONE. THE ASSESSEE FILED HIS RETURN GIVING THE ADD RESS OF PLOT NO.30, DWARKA APARTMENT, SHALIMAR GARDEN, SAHIBABAD, WHERE AS NO NOTICE WAS EVER SERVED U/S 143(2) AT THE GIVEN ADDRESS BECAUSE THE DEPARTMENT FIRSTLY ISSUED THE NOTICE AND THEN TRIED TO SERVE I T BY AFFIXTURE AT A WRONG ADDRESS AS INDICATED IN THE ASSESSMENT ORDER ITSELF , NAMELY, WZ-32, CHUKHANDI POST OFFICE, TILAK NAGAR, NEW DELHI. THE LD. AR SUBMITTED THAT THE ASSESSEE WAS RESIDING AT THIS ADDRESS TEN YEARS AGO. AS NO NOTICE U/S 143(2) WAS SERVED ON THE ASSESSEE, WHICH WAS AP PARENT FROM THE FACT THAT THE ASSESSMENT ORDER HAS BEEN PASSED U/S 144, IT WAS PRAYED THAT THE ASSESSMENT BE ANNULLED. IN SUPPORT OF THE ANNULMENT , THE LD. AR RELIED ON CERTAIN DECISIONS INCLUDING THAT FROM THE HONBL E JURISDICTIONAL HIGH ITA NO.1445/DEL/2014 4 COURT. THIS WAS VEHEMENTLY OPPOSED BY THE LD. DR W HO SUBMITTED THAT NOTICE U/S 142(1) WAS PROPERLY SERVED AND IT WAS TH E MISTAKE OF THE ASSESSEE IN NOT PROPERLY CONVEYING HIS CORRECT ADDR ESS TO THE REVENUE. THE LD. DR INVITED MY ATTENTION TOWARDS THE FACT TH AT THE ASSESSEE WAS FREQUENTLY CHANGING HIS ADDRESS. IT WAS PLEADED TH AT SECTION 292BB WILL TAKE CARE OF THE SENDING OF NOTICE AT WRONG ADDRESS AND HENCE THE ASSESSMENT ORDER CANNOT BE DECLARED A NULLITY. APA RT FROM THAT, THE LD. DR ALSO SUBMITTED THAT THE ISSUE CHALLENGING THE VA LIDITY OF ISSUANCE OF NOTICE U/S 143(2) WAS NOT RAISED BEFORE THE LD. CIT (A) AND, HENCE, THE SAME SHOULD NOT BE ALLOWED TO BE TAKEN UP BEFORE TH E TRIBUNAL. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. IN SO FAR AS THE PRELIMINARY OB JECTION OF THE LD. DR ABOUT NOT TAKING UP THE QUESTION OF NON-SERVICE OF NOTICE U/S 143(2) BEFORE THE LD. CIT(A) IS CONCERNED, I HAVE NOTED TH AT THERE IS NO SPECIFIC GROUND CHALLENGING SUCH ISSUE BEFORE THE LD. FIRST APPELLATE AUTHORITY. HOWEVER, STATEMENT OF FACTS AND SUBMISSIONS FILED B EFORE THE LD. CIT(A) DISCUSS THIS ASPECT OF THE MATTER. BE THAT AS IT M AY, SINCE THE CHALLENGE ITA NO.1445/DEL/2014 5 TO THE ISSUANCE OF NOTICE U/S 143(2) IS A PURE QUES TION OF LAW, IN MY CONSIDERED OPINION, IT CAN BE TAKEN UP EVEN FOR THE FIRST TIME BEFORE THE TRIBUNAL DE HORS ITS CONSIDERATION AT THE LEVEL OF THE LD. CIT(A). THE HONBLE SUPREME COURT IN NTPC VS. CIT (1998) 229 ITR 383 (SC) , HAS HELD THAT A LEGAL GROUND CAN BE TAKEN UP FOR THE FI RST TIME PROVIDED NO FRESH INVESTIGATION OF FACTS IS REQUIRED. AS THE A DDRESS AT WHICH NOTICE WAS SERVED U/S 143(2) HAS BEEN GIVEN IN THE ASSESSM ENT ORDER ITSELF, AND FURTHER, THE CORRECT ADDRESS OF THE ASSESSEE IS BOR NE OUT FROM THE COPY OF THE RETURN FILED WITH THE DEPARTMENT, IN MY CONSIDE RED OPINION, NO FRESH PROBING OF FACTS IS NECESSARY. I, THEREFORE, ADMIT THESE TWO GROUNDS FOR ADJUDICATION. 6. ON MERITS, IT IS NOTICED FROM THE ASSESSMENT ORD ER THAT NOTICE U/S 143(2) WAS SENT AT THE ADDRESS WZ-32, CHUKHANDI POS T OFFICE, TILAK NAGAR, NEW DELHI, WHICH WAS SERVED BY AFFIXTURE AS THE ITI REPORTED THAT THE ASSESSEE WAS NOT RESIDING AT THE GIVEN ADD RESS. THIS SHOWS THAT THE AO SERVED THE NOTICE U/S 143(2) BY AFFIXTURE AT THE ADDRESS WZ-32, CHUKHANDI POST OFFICE, TILAK NAGAR, NEW DELHI. A C OPY OF RETURN OF ITA NO.1445/DEL/2014 6 INCOME FOR THE RELEVANT YEAR IS AVAILABLE AT PAGE 4 OF THE PAPER BOOK, WHICH DIVULGES THE ASSESSEES ADDRESS AS PLOT NO.30 , DWARKA APARTMENTS, SHALIMAR GARDEN, SAHIBABAD. WHEN THE AS SESSEE HAS CLEARLY GIVEN HIS ADDRESS ON THE FACE OF THE RETURN ITSELF, THE NATURAL PRESUMPTION IS THAT IT WAS THE CORRECT ADDRESS OF THE ASSESSEE FOR FURTHER COMMUNICATION. THE AO HAS ADMITTEDLY SERVED A NOTIC E BY AFFIXTURE AT THE WRONG ADDRESS, NAMELY, WZ-32, CHUKHANDI POST OF FICE, TILAK NAGAR. THE HONBLE JURISDICTIONAL HIGH COURT IN CIT VS. SALARPUR COLD STORAGE PVT. LTD. (2014) 50 TAXMANN.COM 105 (ALL) , HAS HELD THAT WHERE THE AO FAILS TO ISSUE NOTICE U/S 143(2) WITHIN THE STIPULATED PERIOD, THE ASSUMPTION OF JURISDICTION TO FRAME THE ASSESSMENT U/S 143(3) BECOMES INVALID AND THIS DEFECT CANNOT BE CURED EVEN BY TAK ING RECOURSE TO DEEMING FICTION U/S 292BB. A COPY OF THE JUDGMENT H AS BEEN PLACED ON RECORD. SIMILAR VIEW HAS BEEN TAKEN IN CERTAIN OTHE R DECISIONS, COPIES OF WHICH HAVE BEEN MADE AVAILABLE BY THE LD. AR, HOLDI NG THAT IF NOTICE U/S 143(2) IS NOT SERVED ON THE ASSESSEE WITHIN THE PER IOD PRESCRIBED IN PROVISO TO SECTION 143(2), NO VALID ASSESSMENT CAN BE FRAMED. ADVERTING TO THE FACTS OF THE INSTANT CASE, IT IS FOUND AS AN ADMITTED POSITION THAT THE ITA NO.1445/DEL/2014 7 NOTICE WAS AFFIXED AT THE WRONG ADDRESS, WHICH WAS NEVER SERVED ON THE ASSESSEE, AS A CONSEQUENCE OF WHICH ASSESSMENT WAS COMPLETED U/S 144 OF THE ACT. SINCE THE JURISDICTIONAL CONDITION FOR MAKING ASSESSMENT, NAMELY, THE ISSUE OF NOTICE U/S 143(2) WAS NOT SATI SFIED, IN MY CONSIDERED OPINION, NO VALID ASSESSMENT CANNOT FOLL OW. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE JURISDICTIONA L HIGH COURT IN SALARPUR COLD STORAGE PVT. LTD. (SUPRA), I SET ASIDE THE IMPUGNED ORDER AND DECLARE THE ASSESSMENT TO BE INVALID. 7. IN VIEW OF THE DECISION ON THE ABOVE LEGAL G ROUND, THERE IS NO NEED TO DEAL WITH THE MERITS OF THE ADDITION. 8. IN THE RESULT, THE APPEAL IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 16.06.201 6. SD/- [R.S. SYAL] ACCOUNTANT MEMBER DATED, 16 TH JUNE, 2016. DK ITA NO.1445/DEL/2014 8 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.