Sh. Avinash Panwar, Meerut V. ITO, Meerut

ITA 1709/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7635 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 16-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: K SAMPATH RAJA KUMARADV
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 6668/DEL/2014 AY: 20 09-10 ITA NO. 1709/DEL/2013 AY: 20 09-10 STAY NO. 518/DEL/2015 (IN ITA NO. 6668/DEL/2014) AY: 20 09-10 AVNISHT PANWAR, VS INCOME TAX OFFICE R, C/O SHRI V.K. GOEL, ADVOCATE, WARD-1(1), 282, BOUNDRY ROAD, MEERUT. CIVIL LINES, MEERUT. (PAN: BJZPP2435B) (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI K. SAMPATH, RAJA KUMAR,ADV. RESPONDENT BY : SHRI S.L. ANURAGI DR DATE OF HEARING: 16.02.2016 DATE OF PRONOUNCEMENT: ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER BOTH THE APPEALS ARE PREFERRED BY THE ASSESSEE. I .T.A. NO. 1709 PERTAINS TO ASSESSMENT YEAR 2009-10 AND IS PRE FERRED AGAINST THE ORDER DATED 11.03.2013 PASSED BY THE LD . CIT(A), MEERUT. I.T.A. NO. 6668 ALSO PERTAINS TO ASSESSMEN T YEAR 2009- 10 AND IS PREFERRED AGAINST ORDER DATED 28.11.2014 PASSED BY THE I.T.A. 6668/D/14, 1709/D/13., STAY 518/D/2015 ASSESSMENT YEAR 2009-10 2 LD. CIT(A), MEERUT CONFIRMING PENALTY OF RS.1,55,00 ,000/- IMPOSED U/S 271(1)( C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED THE ACT). SINCE BOTH THE APPEALS WERE HEA RD TOGETHER, THEY ARE BEING DISPOSED OF THROUGH THIS COMMON ORDE R. 2. IN I.T.A. NO. 1709/DEL/2013, THE ASSESSEE HAS TA KEN LEGAL GROUND CHALLENGING THE JURISDICTION OF THE ASSESSIN G OFFICER TO TAKE UP THE ASSESSEES CASE. HE HAS ALSO CHALLENGE D THE DISMISSAL OF THE APPEAL BY THE LD. CIT(A) ON MERITS . HOWEVER, WE DEEM IT FIT TO ADJUDICATE ON THE LEGAL ISSUE AT THE THRESHOLD BEFORE PROCEEDING TO HEAR BOTH THE PARTIES ON MERITS. GRO UND NOS. 1 & 2 OF THE APPEAL ARE AS UNDER:- 1. THAT LD. A.O. AS WELL AS LD. CIT(A) TO HOLD TH AT I.T.O. IS HAVING JURISDICTION OF THE CASE WHICH WAS FILED BY THE ASSESSEE MORE THAN RS. 5 CRORE AND THE ASSESSEE FILED THE RETURN BEFORE A.C.I.T.. CIRCLE 1 , MEERUT. THEREFORE, ASSUMPTION OF JURISDICTION WITHO UT TRANSFERRING THE CASE BY CIT, MEERUT. LD. I.T.O. ASSUMED JURISDICTION AND CONTINUED THE PROCEEDING U /S 148/143(3) IS VOID AB-INITIO BECAUSE THE A.O. NEVER HAVING JURISDICTION U/S 120 OF I.T. ACT HENCE, ASSESSMENT FRAMED BY THE A.O IS WITHOUT JURISDICTIO N AND BAD IN LAW. 2. THAT LD. CIT(A), MEERUT IS IN ERROR IN HOLDING THAT THE ASSESSEE CAN MAKE OBJECTION U/S 124(3) BEFORE A.O. IS MISINTERPRETATION OF THE PROVISION BECAUSE IF ISSUA NCE OF NOTICE U/S 148 VOID AB-INITIO THEN THERE IS NO NEED TO MAKE OBJECTION. I.T.A. 6668/D/14, 1709/D/13., STAY 518/D/2015 ASSESSMENT YEAR 2009-10 3 3. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD FILED HIS RETURN OF INCOME SHOWING A TOTAL INCOME OF RS. 5,31,88,771 /- AND, THEREFORE, IN TERMS OF INSTRUCTION NO. 1/2011[F NO. 187/12/2010- IT(A-17)] DATED 31.1.2011, THE JURISDICTION OF THE ASSESSING OFFICER WAS ONLY UPTO RS. 15.00 OF RETURNED INCOME AND ACCORDINGLY, THE ASSUMPTION OF JURISDICTION BY I.T. O. WARD 1(1), MEERUT WAS PARTLY ILLEGAL. 4. AS FAR AS I.T.A. NO. 6668/DELHI/2014 WAS CONCERN ED, THE PENALTY WAS ALSO IMPOSED BY INCOME TAX OFFICER, WAR D-1(1), MEERUT WHICH AGAIN WAS WITHOUT JURISDICTION AND HEN CE VOID. 5. THE LD. DR IN ALL FAIRNESS AGREED THAT BOTH THE MATTERS SHOULD BE RESTORED TO THE OFFICER HAVING JURISDICTI ON OVER THE CASE. 6. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDERS IN BOTH THE APPEALS AND RESTORE THE MATTER TO THE FILE OF ACIT, MEERUT FOR FRESH ADJUDICATION AFTER GIVING THE ASSESSEE DUE OP PORTUNITY OF BEING HEARD. 7. THE GROUNDS OF APPEAL ON MERITS ARE DISMISSED AS HAVING BECOME INFRUCTUOUS. AS FAR AS THE PETITION OF STAY IS CONCERNED, THE SAME IS ALSO DISMISSED AS HAVING BECOME INFRUCT UOUS. 8. IN THE RESULT, THE ASSESSEES BOTH APPEALS ARE P ARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE STAY PETITION IS D ISMISSED. I.T.A. 6668/D/14, 1709/D/13., STAY 518/D/2015 ASSESSMENT YEAR 2009-10 4 ORDER PRONOUNCED IN THE OPEN COURT ON 16.05.2016. SD/- SD/- (S.V. MEHROTRA) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED: THE 16TH OF MAY, 2016 GS COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 4. DR, ITAT BY ORDER ASSTT. REGISTRAR