Sunil Aggarwal, New Delhi V. ITO, New Delhi

ITA 1740/DEL/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6481 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 24-08-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 13-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH KHOSLA
• Keywords: Gift; Opportunity of being heard
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 1740/DEL/2012 ASSESSMENT YEAR: 2005-06 SUNIL AGGARWAL, VS. ITO, WARD-29(2), 2165, GALI HANUMAN PARSHAD, NEW DELHI MASJID KHAJOOR, DELHI (PAN: AAEPA6306K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SUBHASH KHOSLA, ADV . DEPARTMENT BY : SH. N.K. BANSAL, SR. DR PER H.S. SIDHU, JM ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE IMPU GNED ORDER DATED 14.2.2012 OF LD. CIT(A)-XXV, NEW DELHI, PER TAINING TO ASSESSMENT YEAR 2005-06. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS:- 1. THE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO TO ISSUE NOTICE UNDER SECTION 148 OF THE ACT IGNORI NG THAT THE FOUNDATION FOR THE ASSUMPTION OF THE JURISDICTION WAS NEVER LAID BY HIM. 2. THE CIT(A) FAILED TO APPRECIATE THAT THE AO RECORDE D REASONS TO ISSUE NOTICE UNDER SECTION 148 FOR THE ASSESSMENT YEAR 2004-05 WHEREAS THE NOTICE UNDER SECTION 148 WAS ISSUED FOR THE ASSESSMENT YEAR 2005 - 2 06. ISSUANCE OF NOTICE FOR THE ASSESSMENT YEAR 2005 -06 WITHOUT RECORDING REASONS FOR THE ASSESSMENT YEAR I S ILLEGAL, VOID AB INITIO, BAD IN LAW. 3. THE CIT(A) FAILED TO APPRECIATE THAT THE ORDER PASS ED BY THE AO UNDER SECTION 143(3)/147 IS VIOLATIVE OF THE MANDATORY PROCEDURE LAID DOWN BY THE APEX COURT. AS THE PRELIMINARY OBJECTIONS FILED BY THE ASSESSEE ON 16.6.2008 AGAINST THE ASSUMPTION OF JURISDICTION UN DER SECTION 147 WERE NEVER DEALT WITH BY THE AO BEFORE PASSING THE ASSESSMENT ORDER. 4. THE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO IN ADDING THE GIFT OF RS. 10,00,000/- TO THE INCOME OF THE ASSESSEE / AS UNDISCLOSED SOURCES. 5. THE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO IN ADDING RS. 50,000/- TO THE INCOME ON ACCOUNT OF THE ALLEGED COMMISSION PAID. 6. YOUR PETITIONER PRAYS TO BE ALLOWED, TO GIVE, TO AM END AND TO ADD ANY FURTHER GROUNDS AND EVIDENCE AT THE TIME OF HEARING. 7. THE ABOVE-SAID ORDER TO BE SET ASIDE AND GRANT THE NECESSARY RELIEF TO YOUR PETITIONER. 3 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE HAS ONLY PRESSED THE GROUND NO. 3 AND STATED THAT THE SIMI LAR ISSUE INVOLVED IN THAT GROUND HAS ALREADY BEEN DECIDED BY THE ITAT G BE NCH, NEW DELHI VIDE ITS ORDER DATED 17.5.2016 IN THE CASE OF SANTOSH AG GARWAL VS. ITO PASSED IN ITA NO. 1741/DEL/2012 (AY 2005-06), AND SET ASID E THE ISSUE TO THE FILE OF THE AO TO DECIDE THE OBJECTIONS AND GIVE FU LL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE, HE REQUESTED THAT B Y RESPECTFULLY FOLLOW THE SAME DIRECTIONS, THE PRESENT ISSUE INVOLVED IN GROU ND NO. 3 MAY ALSO BE SENT BACK TO THE AO WITH THE SIMILAR DIRECTIONS. 4. ON THE CONTRARY, LD. SR. DR RELIED UPON THE ORDE RS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD.CIT(A) AND THE DECISION DATED 17.5.2016 REFERRED BY THE LD. COUNSEL OF THE ASSESS EE OF THE ITAT, G BENCH, DELHI IN THE CASE OF SANTOSH AGGARWAL VS. IT O PASSED IN ITA NO. 1741/DEL/2012 (AY 2005-06). FOR THE SAKE OF CLARITY , I AM REPRODUCING THE FINDING GIVEN BY THE TRIBUNAL VIDE PARA NO. 7 & 8 VIDE ITS ORDER DATED 17.5.2016 IN ASSESSEES OWN CASE ARE AS UNDER :- 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RECORDS. THE OBJECTION LETTER DATED 16.06.2008 WAS 4 CLEARLY MENTIONED IN THE ASSESSMENT ORDER. DESPITE TAKING NOTE OF THE SAME, THE AO FAILED TO TAKE ANY DECISION ON THE SAID OBJECTIONS. THE CIT(A) TOTALL Y OVER LOOKED THE FACT THAT OBJECTIONS OF THE ASSESSE E WERE NOT DEALT BY THE AO. IN VIEW OF THIS, IT WILL BE PROPER, IF THE OBJECTIONS ARE CONSIDERED AND DECID ED BY THE AO IN THE INTEREST OF JUSTICE. BOTH THE SI DES ARE AGREED TO THIS PROPOSITION. IT IS HEREBY DIRECTED T O THE AO TO DECIDE THE OBJECTION DATED 16.6.2008 FILED BY THE ASSESSEE BEFORE TAKING UP THE ASSESSMENT. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN FULL OPPORTUNITY TO BE H EARD. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS APRTLY ALLOWED FOR STATISTICAL PURPOSE. 6. AFTER PERUSING THE AFORESAID DECISION DATED 17.5 .2016 OF THE ITAT, G BENCH, NEW DELHI IN THE CASE OF SANTOSH AGGARWA L VS. ITO PASSED IN ITA NO. 1741/DEL/2012 (AY 2005-06), I AM OF THE CON SIDERED VIEW THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE AFO RESAID DECISION, BECAUSE THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE EXACTLY SIMILAR AND IDENTICAL TO THAT CASE. THEREFORE, RESPECTFULLY FOL LOWING THE AFORESAID DECISION DATED 17.5.2016 OF THE ITAT, G BENCH, DELHI, AS AFORESAID THE ISSUE INVOLVED IN GROUND NO. 3 IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER IN THE LIGHT OF THE DECISION OF THE ITAT, G BENCH DATED 17.5.2016 PASSED IN THE CASE OF SANTOSH AGGAR WAL VS. ITO (SUPRA). 5 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03/03/ 2017. SD/- SD/ (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 03/03/2017 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITATTRUE COPY BY ORDER, ASSISTANT REGISTRAR