Satyapal Singh, New Delhi V. ITO Ward-43(3), New Delhi

ITA 1863/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2423 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Keywords: Competent authority
• Section: 201; 148; 144

Judgement Text

1 ITA NO. 1863/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I(2 ) + SMC NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 1863/DEL/2019 ( A.Y 2010-11) SATYAPAL SINGH A-88, SF, EAST OF KAILASH, NEW DELHI PAN AYQPS2774M (APPELLANT) VS ITO WARD-43(3) CIVIC CENTRE NEW DELHI (RESPONDENT) APPELLANT BY SH. LALITA KRISHNAMURTHY, CA RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 31/12/2018 PASSED BY CIT(A)-15, DELHI FOR ASSESSMENT YEAR 201 0-11. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT IN VIEW OF ADJOURNMENT LETTERS FILED BY TH E ASSESSEE FROM TIME TO TIME ONLINE ON THE DATES FIXED FOR HEARING AS PER IMPUGN ED EX-PARTE ORDER ISSUED BY ID. CIT(APPEALS) WITHOUT PROVIDING REASONABLE OP PORTUNITY TO THE ASSESSEE TO BE HEARD IS BAD IN LAW AND FACTS. 2. THAT THE ASSUMPTION OF JURISDICTION BY THE ASSES SING OFFICER UNDER SECTION DATE OF HEARING 26.02.2020 DATE OF PRONOUNCEMENT 19.03.2020 2 ITA NO. 1863/DEL/2019 147 OF THE INCOME TAX ACT, 1961, IS ARBITRARY, UNJU ST AND BAD IN LAW AND CONSEQUENTLY ORDER OF ID. CIT(APPEALS) AS SUSTAINED IS NOT TENABLE ON FACTS AND IN LAW. 3. THAT THERE WAS NO VALID MATERIAL WITH THE ASSESS ING OFFICER AS CONTEMPLATED TO ASSUME THE JURISDICTION UNDER SECTI ON 147 OF THE INCOME TAX ACT, 1961 AND CONSEQUENTLY THE REASSESSMENT SO FRAM ED MECHANICALLY AND WITHOUT APPLICATION OF MIND ON THE BASIS OF SUCH IN VALID ASSUMPTION OF JURISDICTION IS BAD IN LAW AND CONSEQUENTLY ORDER O F ID. CIT(APPEALS) AS SUSTAINED IS NOT TENABLE ON FACTS AND IN LAW. 4. THAT THE UNLAWFUL ADDITION OF RS. 34,25,3007- BE ING THE NET CASH DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE ID. CIT(APPEALS) IN HIS EX-PAR TE ORDER IS UNJUST, UNWARRANTED AND UNSUSTAINABLE ON FACTS AND IN LAW. 3. THE ASSESSEE IS AN INDIVIDUAL AND HAS NOT FILED HIS RETURN FOR ASSESSMENT YEAR 2010-11. INFORMATION WAS RECEIVED BY THE REVE NUE THAT THE ASSESSEE DEPOSITED CASH AMOUNTING TO RS. 40,50,300/- IN HIS SAVING BANK ACCOUNT. REASONS WERE RECORDED AND THE CASE WAS REOPEN U/S 1 47/148 OF THE INCOME TAX ACT, 1961. AFTER TAKING NECESSARY APPROVAL OF COMPETENT AUTHORITY, NOTICE U/S 148 OF THE ACT WAS ISSUED ON 31/3/2017 VIDE SPE ED POST AND WAS DULY SERVED AS MENTIONED IN THE ASSESSMENT ORDER. SUBSE QUENTLY, NOTICES U/S 142 (1) WERE ISSUED ON 6/7/2017, 7/8/2017 AND 23/11/201 7 AND LAST OPPORTUNITY WAS GIVEN ON 1/12/2017 WHICH WAS AFFIXED ON 4/12/20 17 AT THE LAST KNOWN ADDRESS OF THE ASSESSEE. HOWEVER, NO COMPLIANCE WA S MADE BY THE ASSESSEE AND, THEREFORE, THE ESTIMATED ASSESSMENT WAS COMPLE TED U/S 144 OF THE INCOME TAX ACT, 1961 THEREBY MAKING ADDITION OF RS.34,25,3 00/-. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF TH E ASSESSEE. 3 ITA NO. 1863/DEL/2019 5. THE LD. AR SUBMITTED THAT THE NOTICE U/S 148 WAS NOT SERVED TO THE ASSESSEE. THEREFORE, THE ASSESSMENT ITSELF IS BAD IN LAW FOR WHICH THE LD. AR SUBMITTED THAT THE TRACK CONSIGNMENT REPORT FROM TH E INDIAN PORTAL WEBSITE. 6. THE LD. DR SUBMITTED THAT AS MENTIONED IN THE AS SESSMENT ORDER, THE NOTICE U/S 148 (1) WAS DULY SERVED AT THE LAST KNOW N ADDRESS OF THE ASSESSEE BY THE REVENUE. THEREFORE, SERVICE WAS COMPLETED AS P ER THE PROCEDURE. 7. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. AFTER GOING THROUGH THE TRACK REPORT OF THE CONSIGN MENT NUMBER OF THE SPEED POST, IT IS FOUND THAT THE TRACK REPORT IS NOT OBTA INED DURING THE ASSESSMENT PROCEEDINGS AND THE SAME WAS NOT OBTAINED DURING TH E APPELLATE PROCEEDINGS AS WELL. THE TRACK REPORT ON THE INDIAN POST OFFI CE PORTAL SHOWS THE POSITION OF THE CONSIGNMENT FOR A PARTICULAR PERIOD ONLY AND NO T AFTERWARDS. THE SUBMISSIONS MADE BY THE LD. AR ARE NOT ACCEPTABLE A S THE ADDRESS GIVEN BY THE ASSESSEE HAS BEEN THE SAME ON WHICH THE NOTICES WER E ISSUED AND NOTICE WAS NOT RETURN BACK. THEREFORE, SERVICE WAS COMPLETE A ND THE PLEA FOR NON SERVICE OF SECTION 148 NOTICE DOES NOT SURVIVE. HENCE, GRO UND NO. 1 TO 3 ARE DISMISSED. 8. AS REGARDS GROUND NO. 4, THE CIT(A) HAS PROCEEDE D ON THE BASIS THAT NO EVIDENCE WAS FILED. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAS NOT GIVEN A PROPER HEARING TO THE AS SESSEE. THEREFORE, IT WILL BE APPROPRIATE TO REMAND BACK THIS MATTER TO THE FILE OF THE ASSESSING OFFICER. 9. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND ORDER OF THE CIT(A). 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS NOT MADE OUT THE CASE AS TO WHY THE ASSESSEE HAS NOT APPEARED BEFORE THE ASSESSING OFFICER. THEREFO RE, WE ARE IMPOSING COST OF 4 ITA NO. 1863/DEL/2019 RS. 5,000/- WHICH SHOULD BE PAID BY THE ASSESSEE TO THE PRIME MINISTERS RELIEF FUND. SINCE, THE ASSESSEE WAS NOT HEARD AT THE TIM E OF ASSESSMENT PROCEEDINGS, IT WILL BE APPROPRIATE TO REMAND BACK THIS APPEAL TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF N ATURAL JUSTICE. THUS APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURP OSE 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MARCH, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 19/03/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 1863/DEL/2019 DATE OF DICTATION 27.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 1 9 .0 3 .2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 9 .0 3 .2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 9 .0 3 .2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER