M/s Green Field Shelters Ltd., New Delhi V. ITO, New Delhi

ITA 1484/DEL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6529 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-01-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 13-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN RAWAL
• Assessee Lawyers: RAJEEV JAIN
• Keywords: Unexplained cash credit; Accommodation entries; Assessment record; Reassessment proceedings
• Section: 143(3); 147; 68; 148

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI , ACCOUNTANT MEMBER I TA NO . 1484/DEL/2013 (ASSESSMENT YEAR: 2002 - 03 ) GREEN FIELD SHELTERS LTD., 84, POCKET 1, JASOLA, NEW DELHI VS. ITO, CO. WARD 12(2), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAJEEV JAIN, CA RE VENUE BY SH . ROBIN RAWAL, SR. DR DATE OF HEARING 08 /01/2016 DATE OF PRONOUNCEMENT 08 / 03 /2016 O R D E R PER PRASHANT MAHARISHI , A . M . 1 . THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - VIII, NEW DELHI DATED 05.11.2012 FOR THE ASSESSMENT YEAR 2002 - 03. 2 . THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS COMPANY AND FILED ITS RETURN OF INCOME ON 31.10.2002 DECLARED TOTAL INCOME OF RS.11672/ - . THE RETURN WAS PROCESS U/S 143(1) ON 04.02.2003. SUBSEQUENTLY NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE BASED ON I NFORMATION RECEIVED FROM INVESTIGATING WING OF THE DEPARTMENT ON 27.03.2009 AND SERVED ON THE SAME DAY TO THE ASSESSEE. AS PER INFORMATION RECEIVED BY THE AO THAT THE ASSESSEE COMPANY HAS TAKEN ACCOMMODATION ENTRIES TO THE TUNE OF RS.750810/ - . IN RESPONSE TO THE NOTICE U/S 148 THE ASSESSEE SUBMITTED ON 30.11.2009 FOR REASON RECORDED WHICH WAS FURNISHED TO THE AR OF THE ASSESSEE ON THE SAME DAY. SUBSEQUENTLY NOTICE U/S 143(2) WAS ISSUED. VIDE LETTER DATED 24.12.2009 ASSESSEE OBJECTED TO INITIATION OF THE REA SSESSMENT PROCEEDING AND VALIDITY OF NOTICE AND SAME WERE REJECTED IN THE ORDER U/S 143(3) ITSELF. AO AFTER REJECTION OF THE REASON PROCEED TO MAKE AN ADDITION U/S 68 OF RS.750810/ - AGAINST WHICH THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LEARNED COMMISSI ONER OF INCOME - TAX (APPEALS) WHO IN TURN DISMISSED THE OBJECTION OF THE ASSESSEE REGARDING PAGE 2 OF 4 THE REOPENING OF THE ASSESSMENT AND ALSO CONFIRM THE ADDITION U/S 68 OF THE ACT OF RS.750810/ - . 3 . THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AGAINST THE ORDER OF LEA RNED COMMISSIONER OF INCOME - TAX (APPEALS) CITED AS UNDER: - THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE WHEREIN: (I) THE NOTICE U/S 148 OF THE ACT DATED 27 - 3 - 2009 WAS ISSUED BY POST AT THE WRONG ADDRESS AND WAS ALSO SERVED PERSONALLY AT THAT VER Y WRONG ADDRESS TO A STRANGER, AND (II) DURING THE COURSE OF REASSESSMENT PROCEEDINGS, SUBSEQUENT TO THE ASSESSEE COMPANY RAISING ITS OBJECTION TO NON SERVICE OF NOTICE U/S 148 OF THE ACT AND THE ID AO HAVING SUPPLIED CERTIFIED COPY OF THE NOTICE U/S 1 48 OF THE ACT DATED 27 - 3 - 2009 ON 24 - 12 - 2009, AND (III) THEREAFTER ASSESSMENT U/S 147/143(3) WAS COMPLETED ON THE VERY SAME DATE IN HASTE WITHOUT PROVIDING ANY OPPORTUNITY TO THE ASSESSEE COMPANY TO FILE ITS RETURN OF INCOME IN RESPONSE TO THE NOTICE U/S 148 AND EVEN WITHOUT ISSUE OF ANY STATUTORY NOTICE U/S 143(2] OF THE ACT AFTER SERVICE OF CERTIFIED COPY OF THE NOTICE U/S 148, THERE WAS COMPLETE ABSENCE OF JURISDICTION AND AS SUCH THE ENTIRE PROCEEDINGS AS WELL AS THE ORDER DATED 24 - 12 - 2009 PASSED U/S 147/143(3) BY THE ID AO WARD - 12(2) NEW DELHI IS A NULLITY IN THE EYES OF LAW AND THE ID CIT(A) - VIII, NEW DELHI WAS WRONG IN HOLDING THAT NOTICE WAS SERVED IN TIME. 2. THAT THE CIT(A) - VIII, NEW DELHI WAS WRONG IN SUSTAINING THE ADDITION OF RS 7,50,810/ - MADE IN RESPECT OF SHARE APPLICATION MONEY BEING TREATED BY THE ID AO AS UNEXPLAINED CREDITS U/S 68 OF THE ACT. 3. THAT THE APPELLANT CRAVE LEAVE OF THIS HON'BLE COURT TO ADD, AMEND, ALTER OR WITHDRAW ANY GROUND AT THE TIME OF HEARING. 4 . ACCORDING TO THE GROUNDS OF APPEAL THE SUBSTANTIVE GROUND TAKEN BY THE ASSESSEE IS AGAINST THE VALIDITY OF NOTICE U/S 148 AS WELL AS CHALLENGING THE ADDITION ON MERITS. BEFORE US , LD . AR OF THE ASSESSEE SUBMITTED TH AT IN FACT NOTICE HAS BEEN SERVED AND FOR THAT REASON WE HAVE CALLED FOR THE ASSESSMENT RECORDS. AT PAGE NO 45 OF THE PAPER BOOK FILED BY THE ASSESSEE THIS NOTICE IS ATTACHED,. THE NOTICE U/S 148 WHICH IS ISSUED TO THE ADDRESS OF THE PRINCIPAL OFFICE R, M/S. GREEN FIELD HOUSING AND DEVE LOPMENT FINANCE LTD., R - 10, GREEN PARK, NEW DELHI. HOWEVER, WHEN THIS ISSUE WAS RAISED THE AO VIDE ITS REMAND REPORT DATED 17.05.2012 SUBMITTED BEFORE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) THAT ON PERUSAL OF THE ASSESSMENT RECORDS IT SHOWS THAT ALT HOUGH NOTICE IS ISSUED AT RS. - 10, GREEN PARK, AND NOT R - 10A, GREEN PARK EXTENSION, NEW DELHI BUT THE NOTICE WAS SERVED 30.03.2009. IT WAS FURTHER STATED THAT THE COPY OF THE NOTICE SHOWING PHONE NO. AND PAGE 3 OF 4 SIGNATURE OF THE RECEIVER IS ENCLOSED WITH THE REMAND REPORT. ON LOOKING AT THE ANNEXURE IT IS APPARENT THAT NOTICE IS SERVED AT R - 10, GREEN PARK, NEW DELHI AND SOME PERSON NAMED NITIN RECEIVED THIS NOTICE ON 30.03.2009. ADMITTEDLY THIS IS NOT THE ADDRESS OF THE ASSESSEE , CORRECT ADDRESS OF THE ASSESSEE IS R - 10A, GREEN P ARK E XTENSION, NEW DELHI. BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) IT WAS SUBMITTED THAT BASED ON THE TELEPHONE NO WRITTEN ON THE NOTICE BY SOME UNKNOWN PERSON THE ASSESSEE CAM E TO KNOW THAT IT WAS SERVED AT R - 10, GREEN PARK, NEW DELHI. THE ADDRESS OF THE APPELLANT COMPANY IS R - 10A, GREEN PARK EXTENSION, NEW DELHI. THIS IS EVIDENT FROM THE ITR 1 ( INCOME TAX RETURNS) SUBMITTED BY THE ASSESSEE FOR ASSESSMENT YEAR 2002 - 03 , FROM THE AUDITED ACCOUNTS FROM THE MCA WEBSITE ETC. IT I S FURTHER EVIDENT FROM THE SPEED POST BOOKING LIST SUBMITTED BY THE ASSESSEE AND CERTIFIED BY AO THAT NOTICE IS NOT SERVED AT THE ADDRESS OF THE ASSESSEE. FURTHER HONBLE DELHI HIGH COURT IN THE CASE OF PRINCIPAL CIT - 1, VS. ATLANTA CAPITAL PVT. LTD., IN IT A NO.665/2015 DATED 21 SEPTEMBER 2015 HAS HELD AS UNDER: - 7. ON THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT NOTICE DATED 27TH MARCH 2008 UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE BY THE ASSESSING OFFICER (AO) AT THE ADDRESS AT B - 231, OKHLA INDUSTRIAL AREA, PHASE - I, NEW DELHI. ADMITTEDLY, THE ASSESSEE HAD SHIFTED FROM THAT ADDRESS WITH EFFECT FROM 1ST FEBRUARY 2005 TO A NEW ADDRESS AT B - 115, SARVODAYA ENCLAVE, NEW DELHI. FOR AY 2005 - 06 AND THE SUBSEQUENT AYS, THE ASSESSEE DISCLOSED HIS ADDRESS AS B - 115, SARVODAYA ENCLAVE, NEW DELHI. EVEN THE AO HAD SENT LETTERS TO THE ASSESSEE AT THE SAME ADDRESS ON 8TH AUGUST 2007. THE INTIMATION UNDER SECTION 143(1) OF THE ACT DATED 25TH JANUARY 2008 FOR AY 2006 - 07 WAS ALSO SENT BY THE AO TO THE ASSESS EE AT THE SAME CHANGED ADDRESS I.E. B - 115, SARVODAYA ENCLAVE, NEW DELHI. THERE IS NOTHING TO SHOW THAT THE NOTICE UNDER SECTION 148 OF THE ACT WAS IN FACT ISSUED BY THE AO SHOWING THE AFOREMENTIONED CHANGED ADDRESS. 8. IT IS THE CONTENTION OF MR. N.P. SAH NI, LEARNED SENIOR STANDING COUNSEL FOR THE REVENUE, THAT THE NOTICE SATISFIED THE REQUIREMENT AS TO LIMITATION UNDER SECTION 149 (B) OF THE ACT. HOWEVER, AS NOTED BY THE ITAT, THE NOTICE ITSELF WAS NOT ISSUED AT THE CORRECT ADDRESS. THE FACT THAT THE SAID NOTICE, SENT BY SPEED POST, WAS NOT RETURNED UNSERVED, WOULD BE TO NO AVAIL SINCE THE ADDRESS GIVEN IN THE NOTICE WAS NOT THE LAST KNOWN ADDRESS OF THE ASSESSEE. 9. MR. SAHNI THEN SUBMITTED THAT IT WAS INCUMBENT ON THE ASSESSEE TO HAVE GOT HIS CHANGED AD DRESS ENTERED IN THE PAN DATA BASE FAILING WHICH THE AO WOULD ONLY GO BY THE ADDRESS GIVEN IN THE RECORD OF THE RELEVANT AY WHICH IN THE CASE IS AY 2001 - 02. 10. THE COURT IS UNABLE TO AGREE WITH THIS SUBMISSION. NO PROVISION IN THE ACT HAS BEEN SHOWN TO T HE COURT WHICH OBLIGES THE ASSESSEE TO ENSURE THAT HIS CHANGED ADDRESS IS ENTERED IN THE PAN DATA BASE FAILING WHICH HE IS PRECLUDED FROM INSISTING ON THE NOTICE UNDER SECTION 148 BEING ISSUED TO HIM AT THE KNOWN ADDRESS AND BEING SERVED UPON HIM. IN THE P RESENT CASE, ON FACTS, IT IS NOT IN DISPUTE THAT THE AO WAS AWARE OF THE CHANGE OF ADDRESS OF THE ASSESSEE AND YET THE NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED AT THE OLDER ADDRESS. PAGE 4 OF 4 11. MR. SAHNI SUBMITTED THAT THE ORDER OF THE CIT (A) NOTES THE FACT THAT A PHOTOCOPY OF THE NOTICE WAS GIVEN TO THE ASSESSEE DURING THE RE - ASSESSMENT PROCEEDINGS AND THAT BY ITSELF SHOULD CONSTITUTE SUFFICIENT SERVICE OF NOTICE ON THE ASSESSEE. IN LIGHT OF THE LAW EXP LAINED BY THE SUPREME COURT IN R.K. UPADHYAYA V. SHANBHAI P. PATEL (1987) 3 SCC 96 WHICH HAS IN TURN BEEN FOLLOWED BY THIS COURT IN CHETAN GUPTA (SUPRA), THE REQUIREMENT OF BOTH THE ISSUANCE AND THE SERVICE OF SUCH UPON THE ASSESSEE FOR THE PURPOSES OF SEC TION 147 AND 148 OF THE ACT ARE MANDATORY JURISDICTIONAL REQUIREMENTS. THE MERE FACT THAT AN ASSESSEE PARTICIPATED IN THE RE - ASSESSMENT PROCEEDINGS DESPITE NOT HAVING BEEN ISSUED OR SERVED WITH THE NOTICE UNDER SECTION 148 OF THE ACT IN ACCORDANCE WITH L AW WILL NOT CONSTITUTE A WAIVER OF THE SAID JURISDICTIONAL REQUIREMENT. 12. ON FACTS, THEREFORE, THE COURT FINDS NO LEGAL ERROR COMMITTED BY THE ITAT IN HOLDING THAT THERE WAS NO PROPER SERVICE OF NOTICE ON THE ASSESSEE UNDER SECTION 148 OF THE ACT. 5 . THIS DECISION IS COVERS ALL THE ASPECT OF THE PRESENT CASE. IN VIEW OF THIS WE ARE OF THE VIEW THAT NO NOTICE U/S 147/148 HAS BEEN SERVED ON ASSESSEE AND THEREFORE THE ASSESSMENT FRAMED IS INVALID. WE REVERSE THE FINDING OF THE LEARNED COMMISSIONER OF INCO ME - TAX (APPEALS) ON GROUND NO.1 ITSELF. IN VIEW OF OUR DECISION IN GROUND NO.1, WE DO NOT ADVERT TO GROUND NO.2 AS IT BECOMES INFRACTUOUS . 6 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 8 / 03 /2016 . - S D / - - S D / - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 8 / 03 / 2016 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI