DCIT, New Delhi V. Sh. Rajender Prasad Gupta, New Delhi

ITA 1816/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3756 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 12-04-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 04-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: ASHWANI TANEJA
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F : NEW DELHI BEFORE SHRI A.D.JAIN, JM AND SHRI R.C.SHARMA, AM ITA NO.1816/DEL/2009 ASSESSMENT YEAR : 2004-05 DY.COMMISSIONER OF INCOME TAX, CIRCLE-25(1), NEW DELHI. VS. SHRI RAJENDER PRASAD GUPTA, 65/41, 1 ST FLOOR, PUNJABI BAGH WEST, NEW DELHI 110 026. PAN NO.AEQPG2780K. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.K.LAL, SR.DR. RESPONDENT BY : SHRI ASHWANI TANEJA, CA. ORDER PER R.C.SHARMA, AM : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 12.12.2008, IN THE MATTER OF ORDER PASSED BY AO U/S 144 OF THE IT ACT. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUND:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN DELETING ADDITION MADE BY THE AO BY OBSERV ING THAT STATUTORY NOTICE WAS ISSUED AND SERVED BEYOND THE T IME LIMIT WHEREAS FIRST NOTICE WAS ISSUED THROUGH SPEED POST WITHIN T HE STATUTORY TIME LIMIT AT THE ADDRESS GIVEN IN RETURN/PAN DATA BY TH E APPELLANT WHICH IS A VALID SERVICE. 3. FACTS IN BRIEF ARE THAT RETURN SHOWING INCOME OF RS.24,66,920/- AND AGRICULTURAL INCOME OF RS.584,089/- WAS FILED ON 30 .6.2004. THE AO STATED IN THE ASSESSMENT ORDER THAT THE RETURN WAS PROCESSED U/S 143(1) AND LATER ON THE CASE WAS SELECTED FOR SCRUTINY THROUGH CASS AND A COMPUTER G ENERATED NOTICE U/S 143(2) WAS ISSUED ON 24.11.2004 AND WAS SERVED ON THE ASSE SSEE AT J-129, RBI COLONY, PASCHIM VIHAR, NEW DELHI WHICH HAPPENED TO BE ASSES SEES LATEST AND CORRECT ITA-1816/DEL/2009 2 ADDRESS AS PER HIS PAN DETAILS. AS PER AO, THE ASS ESSEE DID NOT ATTEND THE OFFICE IN RESPONSE TO THIS NOTICE. FURTHER NOTICES U/S 14 2(1) AND 143(2) ALONGWITH QUESTIONNAIRE DATED 8.9.2006 WERE ISSUED TO THE ASS ESSEE BUT THE SAME WERE INADVERTENTLY SENT TO AN INCORRECT ADDRESS. ANOTHE R NOTICE U/S 142(1) WAS ISSUED ON 23.10.2006 AND WAS SENT AT C/O BHARAT RASAYAN LT D., 1501, VIKRAM TOWER, RAJINDRA PLACE, NEW DELHI, AN ADDRESS MENTIONED IN ONE OF THE TDS CERTIFICATES FURNISHED WITH THE RETURN OF INCOME. IN RESPONSE T O THIS NOTICE, A LETTER DATED 2.11.2006 WAS SENT BY ASSESSEE ON 10.11.2006 THROUG H SPEED POST. THOUGH THE SAME WAS NOT ACCOMPANIED BY A POWER OF ATTORNEY, ST ATING INTER ALIA, THAT THE NOTICE U/S 142(1) DATED 23.10.2006 WAS SERVED ON TH E ASSESSEE FOR THE FIRST TIME ON 26.10.2006 AT 1501, VIKRAM TOWER, RAJENDRA PLACE, N EW DELHI WHICH WAS NOT ASSESSEES CORRECT ADDRESS AS PER HIS INCOME TAX RE CORDS AND THAT THE CORRECT ADDRESS HAS BEEN 65/41, FIRST FLOOR, WEST PUNJABI B AGH, NEW DELHI 110 026. ACCORDINGLY IT WAS SUBMITTED THAT THE NOTICE SERVED AFTER THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH WAS NOT A VALID NOTICE. AFTER CONSIDERING THE ASSESSEES SUBMISSION WITH REGARD TO SERVICE OF NOTICE, THE AO HELD THAT ASSESSEES SUBMISSION WAS NOT SATISFACTORY AND ACCEPTABLE AND A LETTER IN THIS REGARD WAS ISSUED TO THE ASSESSEE ON 10.11.2006 WITH NOTICES U /S 143(2), 142(1) AND A QUESTIONNAIRE INTIMATING THE DETAILS/EVIDENCE TO BE FURNISHED IN SUPPORT OF THE CLAIMS MADE BY THE ASSESSEE IN HIS RETURN OF INCOME . IT WAS POINTED OUT TO THE ASSESSEE THAT THE RETURN FOR THE AY 2004-05 HAD BEE N FILED WITH THE ADDRESS 61/41, FIRST FLOOR, WEST PUNJABI BAGH, NEW DELHI 110026 WHICH WAS APPARENTLY AN INCORRECT ADDRESS AS HAS BEEN SUBSEQUENTLY ADMITTED BY THE ASSESSEE, THE CORRECT ADDRESS BEING 65/41, 1 ST FLOOR, WEST PUNJABI BAGH, NEW DELHI 110026. IT WAS ALSO POINTED OUT TO THE ASSESSEE THAT THE NOTICE WA S SENT TO HIM THROUGH SPEED POST OF THE POSTAL AUTHORITIES TO HIS LATEST AND CORRECT ADDRESS AS PER PAN DETAILS. AFTER INFORMING THE ASSESSEE THAT A VALID NOTICE WAS THUS ISSUED AND SERVED ON THE ASSESSEE WITHIN THE TIME ALLOWED FOR ISSUE AND SERV ICE OF SUCH NOTICE, THE ASSESSEE WAS ASKED BY THE AO TO COOPERATE IN THE ASSESSMENT PROCEEDINGS. THE AR OF THE ASSESSEE ATTENDED ON 20.11.2006 AND FILED A LETTER DATED 20.11.2006 FURTHER ITA-1816/DEL/2009 3 CONTESTING ON SIMILAR LINES THE VALIDITY OF THE NOT ICE ISSUED U/S 143(2) ON 24.11.2004. IT WAS AGAIN POINTED OUT TO THE AR THA T IT WAS A NOTICE U/S 143(2) GENERATED BY THE COMPUTER AT THE ASSESSEES LATEST AND CORRECT ADDRESS AS PER HIS PAN DETAILS AND EVEN ON THE DATE OF HEARING I.E. ON 20.11.2006, THE SAME ADDRESS HAPPENED TO BE HIS LATEST AND CORRECT ADDRESS AS PE R HIS PAN DETAILS. 4. THE AO FURTHER STATED THAT AFTER DISCUSSING THE CASE ON 20.11.2006, THE CASE WAS ADJOURNED TO 22.11.2006. HOWEVER, A LETTER DAT ED 22.11.2006 WAS RECEIVED THROUGH SPEED POST FROM ASSESSEES AR SEEKING ADJOU RNMENT ON THE GROUND THAT HE WAS BUSY IN FILING INCOME TAX RETURNS FOR COMPANIES . THE ASSESSEES AR WAS SPECIFICALLY INFORMED BY THE AO ON THE LAST DATE OF HEARING THAT IT IS A TIME BARRING CASE AND NO FURTHER ADJOURNMENT WOULD BE POSSIBLE. THE ASSESSEE HAS NOT FURNISHED ANY DETAILS IN RESPONSE TO THE NOTICES/QU ESTIONNAIRE DATED 10.11.2006. AS THIS IS A TIME BARRING ASSESSMENT AND ALSO DUE T O THE FACT THAT THE ASSESSEE IS NOT COOPERATING IN THE FINALIZATION OF ASSESSMENT EVEN AFTER SPECIFICALLY ASKED TO COOPERATE IN THE ASSESSMENT PROCEEDINGS VIDE LETTER NO.1134 DATED 10.11.2006 AND VIDE ORDER SHEET ENTRY DATED 20.11.2006, THE AO WAS LEFT WITH NO OTHER ALTERNATIVE BUT TO COMPLETE THE ASSESSMENT EX-PARTE U/S 144 ON THE BASIS OF MATERIALS AVAILABLE ON RECORDS. 5. IN THE EX-PARTE ASSESSMENT, ADDITION WAS MADE ON ACCOUNT OF CAPITAL GAIN ON SALE OF AGRICULTURAL LAND, LONG TERM CAPITAL GAIN I N RESPECT OF FLAT NO.304 AND INCOME OF MINOR DAUGHTER WAS ALSO CLUBBED U/S 64. THUS, THE ASSESSMENT WAS FRAMED AT NET TAXABLE INCOME OF RS.76.77 LAKHS AS A GAINST RETURNED INCOME OF RS.24.66 LAKHS. 6. BY THE IMPUGNED ORDER, CIT(A) ANNULLED THE ASSES SMENT BY OBSERVING THAT ASSESSMENT PROCEEDINGS IN PURSUANCE TO NOTICE U/S 1 43(2) SERVED ON 26.10.2006 WERE VOID AB-INITIO. AGAINST THIS ORDER OF CIT (APP EALS), THE REVENUE IS IN FURTHER APPEAL BEFORE US. ITA-1816/DEL/2009 4 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFU LLY GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES AND FIND FROM THE RECORD T HAT AFTER FILING OF RETURN ON 30.06.2004, THE A.O ISSUED NOTICE U/S 143(2) ON 24. 11.2004 AT THE LATEST AND CORRECT ADDRESS AS PER PAN DETAILS, AT J-129, RBI C OLONY, PASCHIM VIHAR, NEW DELHI. A CATEGORICAL FINDING HAS BEEN GIVEN BY THE A.O TO THE EFFECT THAT NOTICE DATED 24.11.2004 WAS SERVED ON THE ASSESSEE WHICH H AS NOT BEEN CONTROVERTED EITHER BY THE CIT (APPEALS) OR BY THE ASSESSEE BEFO RE US. HOWEVER, THE A.O HAS ALSO ISSUED FURTHER NOTICE U/S 142(1) AND 143(2) AL ONG WITH THE QUESTIONNAIRE DATED 8.9.2006 AT THE ADDRESS WHICH WAS ALLEGED AS INCORR ECT. ANOTHER NOTICE U/S 142(1) WAS ISSUED ON 23.10.2006 AT THE ADDRESS MENTIONED I N ONE OF THE TDS CERTIFICATE FURNISHED ALONG WITH THE RETURN OF INCOME. CONTENTI ON OF THE ASSESSEE THAT NOTICE U/S 142(1) DATED 23.10.2006 WAS SERVED ON THE ASSES SEE FOR THE FIRST TIME ON 26.10.2006, WHICH WAS NOT ASSESSEES CORRECT ADDRES S AS PER HIS INCOME-TAX RECORDS, ACCORDINGLY IT WAS CONTENDED THAT NOTICE S ERVED AFTER THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH WAS NOT A VALID NO TICE. 8. IT IS CRYSTAL CLEAR FROM THE ABOVE THAT CORRECT NOTICE U/S 143(2) WAS ISSUED AND SERVED ON THE ASSESSEE ON 24.11.2004 AT ASSESSE ES LATEST AND CORRECT ADDRESS AS PER HIS PAN DETAILS. SERVICE OF THIS NOTICE TO T HE ASSESSEE WAS NOT DISPUTED. SINCE THE ADDRESS, AT WHICH THIS NOTICE WAS SERVED, WAS THE LATEST AND CORRECT ADDRESS, AS PER PAN DETAILS AVAILABLE WITH THE A.O, WE DO NOT FIND ANYTHING WRONG IN SERVICE OF NOTICE AT THE ADDRESS J-129, RBI COLO NY, PASCHIM VIHAR, NEW DELHI WHEN THE ASSESSEE HIMSELF HAS ACCEPTED THAT THE ADD RESS GIVEN IN THE RETURN OF INCOME WAS NOT CORRECT ADDRESS. AS PER THE DATE OF FILING THE RETURN WHICH WAS 30.06.2004, NOTICE U/S 143(2) COULD HAVE BEEN SERVE D ON OR BEFORE 30.06.2005 AND WHEN THE NOTICE WAS ACTUALLY ISSUED AND SERVED ON T HE ASSESSEE ON 24.11.2004, WE DO NOT FIND ANY MERIT IN THE ORDER OF CIT (APPEALS) ANNULLING THE ASSESSMENT ON THE PLEA THAT NOTICE U/S 142(1) DATED 23.10.2006 WA S SERVED ON THE ASSESSEE FOR THE FIRST TIME ON 26.10.2006. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT (APPEALS). ITA-1816/DEL/2009 5 SINCE THE ASSESSMENT WAS COMPLETED EX-PARTE U/S 144 , IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE ALL THE ADDITIONS MADE ON MER ITS, TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING AFRESH AND ASSESSEE IS DIRECTE D TO COOPERATE WITH THE A.O FOR COMPLETION OF THE ASSESSMENT. WE DIRECT ACCORDINGLY . 9. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED, FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 23 RD JUNE, 2010. SD/- SD/- (A.D.JAIN) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23.06.2010. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR.