Babli Singh, Dasna V. ITO, Ward- 1(5), Ghaziabad

ITA 1640/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0705 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Source of fund; Reason to believe
• Section: 142(1); 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER ITA NO. 1640 /DEL/201 8 [ASSESSMENT YEAR: 2 0 0 9 - 1 0 ] MS. BABLI SINGH VS. THE I . T . O D/O MAMRAJ SINGH WARD - 1 ( 5 ) VILLAGE P.O. MASURI DASNA GHAZIABAD GHAZIABAD PAN : EEFPS 3518 C [APPELLANT] [RESPONDENT] DATE OF HEARING : 0 6 . 0 9 .201 8 DATE OF PRONOUNCEMENT : 1 7 .09.2018 ASSESSEE BY : SHRI CHAMAN LAL SHARMA, ADV. REVENUE BY : S HRI ANIL KUMAR SHARMA, SR. DR ORDER PER N .K. BILLAIYA, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] - GHAZIABAD DATED 2 8 . 1 2 .201 7 PERTAINING TO ASSESSMENT YEAR 20 0 9 - 1 0 . 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ASSESSMENT ORDER DATED 20.12.2016 FRAMED U/S 143(3)/144 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT']. THE ASSESSEE FURTHER ALLEGES THAT THE ASSESSING OFFICER REOPENED THE ASSESSMENT WITHOUT RECORDING ANY REASONS FOR REOPENING THE ASSESSMENT. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS INVESTED RS. 1.40 CRORES IN HOUSE PROPERTY JOINTLY WITH HIS BROTHER. BUT NO RETURN OF INCOME WAS FOUND TO HAVE BEEN FILED BY THE ASSESSEE. THE ASSESSING OFFICER, ACCORDINGLY, ISSUED NOTICE U/S 148 OF THE ACT, WHICH WAS DULY SERVED UPON THE ASSESSEE. 4 . THE BONE OF CONTENTION IS AS TO WHETHER THIS NOTICE DATED 21.03.2016 WAS A VALID NOTICE. SECTION 148(2) OF THE ACT PROVIDES THAT THE ASSESSING OFFICER SHALL, BEFORE ISSUING ANY NOTICE UNDER THIS SECTION RECORD HIS REASONS FOR DOING SO. ON THE DATE OF ISSUE OF NOTICE, I DO NOT FIND ANY REASONS 3 RECORDED BY THE ASSESSING OFFICER FOR ISSUING NOTICE U/S 148 OF THE ACT. 5. THOUGH IT APPEARS THAT THE ASSESSING OFFICER WAS MAKING ENQUIRY REGARDING SOURCE OF FUNDS FOR PURCHASE OF PROPERTY, BUT IN MY OPINION, THE SAME CANNOT BE CONSIDERED TO BE A REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. 6. THE CONTENTS OF THE NOTICE ISSUED U/S 142(1) OF THE ACT ARE EXHIBITED IN THE BODY OF THE ASSESSMENT ORDER. OBVIOUSLY, THERE WAS NO QUESTION OF THE ASSESSING OFFICER HAVING ANY BASIS TO REASONABLY ENTERTAIN THE BELIEF THAT ANY PART OF THE INCOME OF THE ASSESSEE HAD ESCAPED ASSESSMENT. IN MY CONSIDERED OPINION, THE ASSESSING OFFICER IS OBLIGED TO RECORD THE REASONS BEFORE ISSUING NOTICE U/S 148 OF THE ACT. 7. THE PURPOSE OF SECTION 151 OF THE ACT IS TO INTRODUCE A SUPERVISORY CHECK OVER THE WORK OF THE ASSESSING OFFICER, PARTICULARLY, IN THE CONTEXT OF REOPENING OF ASSESSMENT. HE IS EXPECTED TO EXERCISE THE POWER U/S 147 OF THE ACT TO 4 REOPEN THE ASSE SSMENT ONLY AFTER DUE APPLICATION OF MIND. SINCE THE STATUTORY REQUIREMENT HAS NOT BEEN FULFILLED, THE NOTICE AND PROCEEDINGS THEREUNDER ARE HELD TO BE INVALID. THE ASSESSEE SUCCEEDS ON THIS COUNT. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 7 . 09.2018. SD/ - [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 1 7 T H SEPTEMBER , 2018 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER