Sh. Ashok Ambwani, New Delhi V. ITO, New Delhi

ITA 186/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7960 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-05-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 10-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Gift
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SHRI SUDHANSHU SRIVASTAVA SHRI SUDHANSHU SRIVASTAVA SHRI SUDHANSHU SRIVASTAVA SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 186/DEL/2013 186/DEL/2013 186/DEL/2013 186/DEL/2013 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2002 2002 2002 2002 - -- - 03 0303 03 SHRI ASHOK AMBWANI, SHRI ASHOK AMBWANI, SHRI ASHOK AMBWANI, SHRI ASHOK AMBWANI, BFH BFH BFH BFH- -- -25, SHALIMAR BAGH, 25, SHALIMAR BAGH, 25, SHALIMAR BAGH, 25, SHALIMAR BAGH, NEW DE NEW DE NEW DE NEW DELHI LHI LHI LHI 110 088. 110 088. 110 088. 110 088. PAN : ADDPA0408L. PAN : ADDPA0408L. PAN : ADDPA0408L. PAN : ADDPA0408L. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -19(1), 19(1), 19(1), 19(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SALIL AGGARWAL, ADVOCATE AND SHRI SHAILESH GUPTA, CA. RESPONDENT BY : SHRI SARABJEET SINGH, DR. DATE OF HEARING : 02.05.2016 02.05.2016 02.05.2016 02.05.2016 DATE OF PRONOUNCEMENT : 04.05.2016 04.05.2016 04.05.2016 04.05.2016 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2002-03 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-VIII, NEW DELHI DATED 26 TH NOVEMBER, 2012. 2. GROUND NOS.1 TO 4 OF THE ASSESSEES APPEAL ARE A GAINST THE REOPENING OF ASSESSMENT U/S 147 OF THE INCOME-TAX A CT, 1961. 3. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTE D BY THE LEARNED COUNSEL THAT THIS ISSUE IS NOW SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITAT DELHI BENCH IN THE CASE OF JITEN GURNANI VS. ITO VIDE ITA NO.4908/DEL/2012, ORDER DA TED 31 ST MARCH, 2015. HE POINTED OUT THAT THE ASSESSMENT OF THE AS SESSEE HAS BEEN REOPENED ON THE BASIS OF INFORMATION RECEIVED FROM DDIT (INVESTIGATION) WHEREIN IT WAS INFORMED THAT SHRI H ARISH PAWAR IS AN ENTRY PROVIDER AND HE HAS ADMITTED TO HAVE GIVEN EN TRIES TO VARIOUS ITA-186/DEL/2013 2 PERSONS. THAT ON THE BASIS OF SAME STATEMENT OF SH RI HARISH PAWAR, THE CASE OF JITEN GURNANI WAS REOPENED. HOWEVER, I TAT, AFTER CONSIDERING THE FACTS OF THE CASE AND RELYING UPON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T VS. PRADEEP KUMAR GUPTA 303 ITR 95, HELD THAT ON THE BASIS OF THOSE FACTS, REASSESSMENT WAS LEGALLY UNSUSTAINABLE. HE FURNISHED THE COPY O F REASONS RECORDED IN THE CASE OF JITEN GURNANI AND COMPARED THE SAME WITH THE REASONS RECORDED IN THE CASE OF THE ASSESSEE AND POINTED OU T THAT IDENTICAL REASONS WERE RECORDED IN THE CASE OF JITEN GURNANI. HE ALSO RELIED UPON THE DECISION OF HON'BLE JURISDICTIONAL HIGH CO URT IN THE CASE OF PR.COMMISSIONER OF INCOME TAX-4 VS. G & G PHARMA IN DIA LTD. VIDE ITA NO.545/2015 DATED 8 TH OCTOBER, 2015. 4. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF AUTHORITIES BELOW AND HE STATED THAT THE ASSESSMENT WAS REOPENED ON THE BASIS OF SPECIFIC INFORMATION. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. ON A PE RUSAL OF THE REASONS RECORDED IN THE CASE OF THE ASSESSEE AS WEL L AS JITEN GURNANI, WE FIND THAT IDENTICAL REASONS WERE RECORDED FOR RE OPENING OF ASSESSMENT IN BOTH THE CASES. BOTH THE ASSESSMENTS WERE REOPENED ON THE BASIS OF STATEMENT OF SHRI HARISH PAWAR. TH EREFORE, THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE DECISION OF ITAT DELHI D BENCH IN THE CASE OF JITEN GURNANI (SUPRA). ON THE SE FACTS, THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PRADEEP KUMAR GUPTA (SUPRA) AND G & G PHARMA INDIA LTD. (SUPRA) WOULD B E SQUARELY APPLICABLE. THE ASSESSING OFFICER HAS ONLY REFERRE D TO THE INFORMATION RECEIVED FROM DDIT (INVESTIGATION). HOWEVER, HE HA S NOT DISCUSSED WHAT HAS BEEN DISCLOSED BY THE ASSESSEE IN HIS BOOK S OF ACCOUNT AND HOW ON THE BASIS OF THE INFORMATION RECEIVED FROM D DIT (INVESTIGATION), A PRIMA-FACIE VIEW OF ESCAPEMENT OF INCOME CAN BE F ORMED IN THE CASE OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT DIS CUSSED THE NATURE OF ITA-186/DEL/2013 3 THE CREDIT IN THE CASE OF THE ASSESSEE, WHETHER IT IS IN THE FORM OF LOAN, SHARE CAPITAL, GIFT ETC. THE ASSESSING OFFICER MEC HANICALLY REOPENED THE CASE JUST ON THE BASIS OF INFORMATION RECEIVED FROM DDIT WITHOUT APPLICATION OF INDEPENDENT MIND WITH REFERENCE TO T HE FACTS OF THE ASSESSEES CASE. IN VIEW OF THE ABOVE, WE, RESPEC TFULLY FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN TH E CASE OF PRADEEP KUMAR GUPTA (SUPRA), G & G PHARMA INDIA LTD. (SUPRA ) AND THE DECISION OF ITAT DELHI D BENCH IN THE CASE OF JITEN GURNAN I (SUPRA), HOLD THAT THE REOPENING OF ASSESSMENT WAS NOT VALID. ACCORDI NGLY, THE NOTICE ISSUED U/S 148 OF THE ACT IS QUASHED AND CONSEQUENT IALLY, THE ASSESSMENT ORDER PASSED IN PURSUANCE TO SUCH NOTICE IS ALSO QUASHED. ONCE THE ASSESSMENT ORDER ITSELF HAS BEEN QUASHED, THE OTHER GROUNDS OF THE ASSESSEES APPEAL WHEREIN THE ASSESSEE HAS C HALLENGED THE ADDITIONS MADE IN THE ASSESSMENT ORDER DO NOT SURVI VE FOR ADJUDICATION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 04.05.2016 . SD/- SD/- (SUDHANSHU SRIVASTAVA (SUDHANSHU SRIVASTAVA (SUDHANSHU SRIVASTAVA (SUDHANSHU SRIVASTAVA ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI ASHOK AMBWANI, SHRI ASHOK AMBWANI, SHRI ASHOK AMBWANI, SHRI ASHOK AMBWANI, BFH BFH BFH BFH- -- -25, SHALIMAR BAGH, NEW DELHI 25, SHALIMAR BAGH, NEW DELHI 25, SHALIMAR BAGH, NEW DELHI 25, SHALIMAR BAGH, NEW DELHI 110 088. 110 088. 110 088. 110 088. 2. RESPONDENT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -19(1), NEW DEL 19(1), NEW DEL 19(1), NEW DEL 19(1), NEW DELHI. HI.HI. HI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR