A.C.I.T., Circle-1, Gwalior V. Smt. Sarita Jain, W/o Shri Sunil Jain, Gwalior

ITA 152/AGR/2011

• Counselvise Citation: 15220314 RSA 2011
• Duration Of Justice: 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-03-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 13-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V BAPNA
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI A. L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 152/AGRA/2011 ASST. YEAR : 2004-05 A.C.I.T., CIRCLE 1, VS. SMT. SARITA JAIN W/O SUNI L JAIN, GWALIOR. PROP. M/S. AHINSA DIAMOND AND JEWELLER S, SARAFA BAZAR, LASHKAR, GWALIOR. (PAN : AESPJ 2870 B) C.O. NO. 32/AGRA/2011 (IN ITA NO. 152/AGRA/2011) ASST. YEAR : 2004-05 SMT. SARITA JAIN W/O SUNIL JAIN, VS. A.C.I.T., C IRCLE 1, PROP. M/S. AHINSA DIAMOND AND JEWELLERS, GWALIOR. SARAFA BAZAR, LASHKAR, GWALIOR. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI WASEEM ARSHAD, SR. D.R. ASSESSEE BY : SHRI V. BAPNA, C.A. DATE OF HEARING : 21.03.2012 DATE OF PRONOUNCEMENT : 23.03.2012 ORDER PER BHAVNESH SAINI, J.M. : THE DEPARTMENTAL APPEAL AS WELL AS THE CROSS OBJEC TION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR D ATED 10.02.2011 FOR THE ASSESSMENT YEAR 2004-05. ITA NO. 152/AGRA/2011 & C.O. NO. 32/AGRA/2011 2 2. THE ASSESSEE FILED RETURN OF INCOME AT RS.1,41,8 22/-, AGAINST WHICH INCOME WAS COMPUTED AT RS.23,27,267/-. THE AO MADE ADDITIO N OF RS.30,000/- ON ACCOUNT OF RENTAL INCOME. THE ADDITION OF RS.1,20,000/- WAS MADE FOR BROKERAGE INCOME, ADDITION OF RS.1,81,000/- WAS MADE ON ACCOUNT OF CA SH DEPOSITED FROM UNDISCLOSED SOURCES AND FURTHER ADDITION OF RS.19,75,000/- WAS MADE ON ACCOUNT OF UNDISCLOSED INVESTMENT. ALL THE ADDITIONS WERE CHALLENGED BEFOR E THE LD. CIT(A). THE ASSESSEE RAISED ADDITIONAL GROUND OF APPEAL BEFORE THE LD. C IT(A) CONTENDING THEREIN THAT NO NOTICE U/S. 143(2) HAS BEEN ISSUED BEFORE COMPLETIO N OF THE ASSESSEE BY THE AO. IT MAY BE NOTED HERE THAT IN THIS CASE, SEARCH WAS CON DUCTED AND THE ASSESSMENT ORDER WAS PASSED U/S. 153A OF THE IT ACT. THE LD. CIT(A) CONSIDERING THE TRIBUNAL DECISION, DECIDED THE ADDITIONAL GROUND IN FAVOUR O F THE ASSESSEE AND HELD THAT IN THE ABSENCE OF ANY NOTICE SERVED U/S. 143(2) WITHIN THE TIME, THE DEFECT IS NOT CURABLE AND ACCORDINGLY, ALLOWED THE APPEAL OF THE ASSESSEE. THE ADDITIONS WERE DELETED ON ACCOUNT OF NON-ISSUE OF NOTICE U/S. 143( 2) OF THE IT ACT. 3. THE REVENUE CHALLENGED THE ORDER OF THE LD. CIT( A) IN HOLDING THAT THE ISSUE OF NOTICE U/S. 143(2) IS COMPULSORY FOR COMPLETION OF ASSESSMENT IGNORING THE FACT THAT THE AO HAS ISSUED NOTICE U/S. 153A/143(2)/142( 1) BEFORE COMPLETION OF THE ASSESSMENT. THE ASSESSEE FILED THE CROSS-OBJECTION STATING THAT THE LD. CIT(A) SHOULD HAVE DECIDED THE GROUNDS ON MERIT. ITA NO. 152/AGRA/2011 & C.O. NO. 32/AGRA/2011 3 4. THE LD. DR SUBMITTED THAT ISSUE OF NOTICE U/S. 1 43(2) IN THE PROCEEDINGS U/S. 153A HAS BEEN CONSIDERED BY HONBLE DELHI HIGH COUR T IN THE CASE OF ASHOK CHADDHA VS. ITO, 337 ITR 399, IN WHICH IT WAS HELD HELD, DISMISSING THE APPEAL, THAT (I) NO SPECIFIC NOTICE WAS REQUIRED UNDER SECTION 143(2) OF THE ACT WHEN THE N OTICE AS REQUIRED UNDER SECTION 153A(1)(A) OF THE ACT WAS ALREADY GIV EN. THE LD. DR, THEREFORE, SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE AND THE MATTER MAY BE SENT BAC K TO THE LD. CIT(A) FOR DECIDING THE APPEAL OF THE ASSESSEE ON MERITS. THE LD. COUNS EL FOR THE ASSESSEE ALSO CONCEDED THAT THE ISSUE OF NOTICE U/S. 143(2) IN THE PROCEED INGS U/S. 153A IS COVERED AGAINST THE ASSESSEE BY THE ABOVE JUDGMENT OF HONBLE DELHI HIGH COURT. THEREFORE, THE GROUNDS ON MERIT MAY BE RESTORED TO THE FILE OF LD. CIT(A) FOR DECIDING THE APPEAL ON MERIT. 5. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF T HE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CI T(A) ON MERITS. THE ISSUE OF NOTICE U/S. 143(2) IN THE PROCEEDINGS U/S. 153A IS COVERED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE BY THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA VS. ITO (SUPRA). BOTH THE PARTIES ALSO CONSENTED TO THE SAME. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) . SINCE THE LD. CIT(A) DID NOT ITA NO. 152/AGRA/2011 & C.O. NO. 32/AGRA/2011 4 DECIDE THE APPEAL OF THE ASSESSEE ON MERIT WHEREBY ALL THE FOUR ADDITIONS WERE CHALLENGED BEFORE HIM, THEREFORE, ALL THE ISSUES AR E RESTORED TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO RE-DECIDE THE APPEALS OF THE ASSESSEE ON MERITS BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 6. IN THE RESULT, DEPARTMENTAL APPEAL IS ALLOWED. C ROSS-OBJECTION OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY