Santosh Aggarwal, New Delhi V. ITO, New Delhi

ITA 1741/DEL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7727 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 16-05-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 13-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Keywords: Gift; Source of fund
• Section: 147; 148

Judgement Text

1 ITA NO. 1741/DEL/ 2012 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SMT SUCHITRA KAMBLE , JUDICIAL MEMBER I.T.A .NO.- 1741/DEL/2012 (ASSESSMENT YEA R-2005-06) SANTOSH AGGARWAL 2165/, GALI HANUMAN PARSHAD, MASJID KHAJOOR NEW DELHI AAFPA3723K (APPELLANT) VS ITO WARD-29(2) NEW DELHI (RESPONDENT) APPELLANT BY SH. SATISH KHOSLA, ADV RESPONDENT BY SMT. ANIMA BARNWAL, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 14/2/2012 PASSED BY CIT(A)-XXV, NEW DELHI. 2. AT THE TIME OF HEARING GROUND NO. 6 & 7 WAS NOT PRESSED BY THE LD. AR. HENCE THE SAME ARE DISMISSED. 3. THE GROUNDS OF APPEAL WHICH WERE CONTESTED ARE A S FOLLOWS: 1. THE CIT(A) ERRED IN CONFIRMING THE ACTION OF TH E ASSESSING OFFICER TO ISSUE NOTICE U/S 148 OF THE ACT IGNORING THAT THE F OUNDATION OF THE ASSUMPTION OF THE JURISDICTION WAS NEVER LAID BY HI M. 2. THE CIT(A) FAILED TO APPRECIATE THAT THE ASSESSI NG OFFICER RECORDED REASONS TO ISSUE NOTICE U/S 148 FOR THE ASSESSMENT YEAR 2004-05 WHEREAS THE NOTICE U/S 148 WAS ISSUED FOR THE ASSES SMENT YEAR DATE OF HEARING 16.05.2016 DATE OF PRONOUNCEMENT 17.05.2016 2 ITA NO. 1741/DEL/ 2012 2005-06. ISSUANCE OF NOTICE FOR THE ASSESSMENT YEA R 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 PASSED BY THE ASSESSING OFFICER U/S 143(3)/147 IS VOLATILE OF THE MANDATORY PROCEDURE LAID DOWN BY THE APEX COURT, AS THE PRELI MINARY OBJECTIONS FILED BY THE ASSESSEE ON 16/6/2008 AGAIN ST THE ASSUMPTION OF JURISDICTION U/S 147 WERE NEVER DEALT WITH BY THE ASSESSING OFFICER BEFORE PASSING THE ASSESSMENT ORD ER. 4. THE CIT (A) ERRED IN CONFIRMING THE ASSESSEE ACT ION OF THE ASSESSING OFFICER IN ADDING THE GIFT OF RS. 10,00,000/- TO T HE INCOME OF THE ASSESSEE/AS UNDISCLOSED SOURCES. 5. THE CIT (A) ERRED IN CONFIRMING THE ACTION OF TH E ASSESSING OFFICER IN ADDING RS.50,000 TO THE INCOME ON ACCOUNT OF THE AL LEGED COMMISSION PAID. 3. THE ASSESSEE FILED RETURN FOR THE ASSESSMENT YEA R 2005-06 ON 31/8/2005 DECLARING INCOME OF RS.2,07,968/-. THE M AIN SOURCES OF INCOME WERE THAT OF SALARY, CAPITAL GAIN AND INCOME FROM O THER SOURCES. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE RECEIVED TWO CHEQUES OF RS.5 LACS FROM SHRI NEERAJ JAIN, PROPRIETOR OF M/S POOJA EXPO. TH E ASSESSING OFFICER AFTER RECORDING REASONS AND SATISFYING HIMSELF ISSUED NOT ICE DATED 20/3/2008 U/S 148 OF THE INCOME TAX ACT, 1961 AND SERVED ON 24/3/ 2008. IN RESPONSE TO THE SAID NOTICE, CHARTERED ACCOUNTANT OF THE ASSESSEE F ILED A LETTER DATED 28/3/2008 REQUESTING TO TREAT THE RETURN FILED U/S 139(1) OF THE INCOME TAX ACT AS RETURN FILED IN RESPONSE TO NOTICE U/S 148 O F THE INCOME TAX ACT. HE ALSO REQUESTED TO INTIMATE FOR THE ASSESSMENT YEAR 2005-06. THE REASONS WERE GIVEN TO THE ASSESSEE ON THE VERY SAME DAY. THE AS SESSING OFFICER GAVE QUESTIONNAIRE DATED 30/5/2008 AND ALSO ASKED TO FIL E RELEVANT DETAILS IN SUPPORT OF GIFT RECEIVED BY MS. SANTOSH AGGARWAL. THE LD. AR OF THE ASSESSEE IN RESPONSE TO QUESTIONNAIRE DATED 30/5/2008 FILED LETTER DATED 16/6/2008 AND FURNISHED THE DETAILS. THE ASSESSEE IN THE SAI D LETTER DATED 16/6/2008 ALSO FILED PRELIMINARY OBJECTIONS TO REOPENING OF A SSESSMENT ISSUED U/S 3 ITA NO. 1741/DEL/ 2012 147/148 OF THE INCOME TAX ACT, 1961. THE ASSESSING OFFICER WITHOUT CONSIDERING THE SAID OBJECTIONS PASSED ASSESSMENT O RDER AND ADDED RS. 10,00,000/- U/S 68 IN THE HANDS OF THE ASSESSEE. 4. THE ASSESSEE FILED APPEAL BEFORE THE CIT (A). T HE CIT (A) WHILE DECIDING THE ISSUE OVERLOOKED THE FACT THAT THE OBJECTION OF THE ASSESSEE IN RESPECT OF ISSUANCE OF NOTICE U/S 148/147 WAS NOT DECIDED BY T HE ASSESSING OFFICER. IN FACT THE CIT(A) HAS GIVEN FINDING THAT THE ASSESSEE ALSO DID NOT QUESTION OR CONTEST THE VALIDITY OF NOTICE BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS SPECIFICALLY MENTIONED IN PARA 5.4 OF THE CIT (A)S ORDER. THE CIT (A) DISMISSED THE APPEAL OF THE ASS ESSEE. HENCE, THE PRESENT APPEAL FILED BY THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE REASONS RECORDED A ND THE NOTICE U/S 148 WAS ISSUED ON THE VERY SAME DAY I.E. ON 20/3/2008 A ND THE OBJECTIONS TO THE ISSUANCE OF NOTICE WERE PLACED BEFORE THE AUTHORITI ES ON 16/6/2008. DESPITE OBJECTIONS PLACED BEFORE THE AUTHORITIES, BOTH THE ASSESSING OFFICER AND THE CIT (A) HAD NOT DEALT WITH THE SAME AS PER THE STATUTE. THEREFORE, LD. AR REQUESTED THAT THE OBJECTION OF THE ASSESSEE FOR ISSUANCE OF NOTICE U/S. 148 SHOULD HAVE BEEN CONSIDERED AND DECIDED BY THE ASSESSING OFFICE R. 6. THE LD. DR WAS UNABLE TO ANSWER WHY THE OBJECTIO NS WERE NOT DEALT BY THE ASSESSING OFFICER AS WELL AS BY THE CIT (A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RECORDS. THE OBJECTION LETTER DATED 16.06.2008 WAS CLEARLY MENTI ONED IN THE ASSESSMENT ORDER. DESPITE TAKING NOTE OF THE SAME, THE ASSESSI NG OFFICER FAILED TO TAKE ANY DECISION ON THE SAID OBJECTIONS. THE CIT (A) TOTAL LY OVER LOOKED THE FACT THAT OBJECTIONS OF THE ASSESSEE WERE NOT DEALT BY THE AS SESSING OFFICER. IN VIEW OF THIS, IT WILL BE PROPER, IF THE OBJECTIONS ARE CONS IDERED AND DECIDED BY THE ASSESSING OFFICER IN THE INTEREST OF JUSTICE. BOTH THE SIDES ARE AGREED TO THIS PROPOSITION. IT IS HEREBY DIRECTED TO THE ASSESSING OFFICER TO DECIDE THE OBJECTION 4 ITA NO. 1741/DEL/ 2012 DATED 16/6/2008 FILED BY THE ASSESSEE BEFORE TAKING UP THE ASSESSMENT. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN FULL OPPORTU NITY TO BE HEARD. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 17TH OF MAY, 2016. SD/- SD/- (R.S. SYAL) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17/05/2016 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT R EGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 16.05.2016 PS 2. DRAFT PLACED BEFORE AUTHOR 16.05.2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE 1 7 .05.2016 PS/PS 5 ITA NO. 1741/DEL/ 2012 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 1 7 .05.2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.