Sh. Chander Bhan, Gurgaon V. ITO, Rewari

ITA 1895/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6793 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 10-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 08-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-1895/DEL/2016 (ASSESSMENT YEAR-2007-08) CHANDER BHAN, C/O-MAHAVIR SINGH, ADVOCATE, 1078, SECTOR-15, PART-II, GURGAON. PAN-ACWPL6223E ( APPELLANT) VS ITO, WARD-2, REWARI. (RESPONDENT) ASSESSEE BY SH.MAHAVIR SINGH, ADV. REVENUE BY SH. F.R.MEENA, SR.DR DATE OF HEARING 10 . 11 .2016 DATE OF PRONOUNCEMENT 01 . 0 2 .201 7 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 28.01.2016 OF CIT(A)-2, GURGAON PERTAINING TO 200708 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NO. 1 WHICH READS AS UNDE R:- 1. THAT THE LD.CIT(A) HAS GROSSLY ERRED IN REJECTI NG THE CONTENTION OF THE APPELLANT REGARDING NON SERVICE OF NOTICE U/S 148 OF THE I.T. ACT BY HOLDING THAT HE HAS FAILED TO PROVE THE NON SERVICE OF NOTICE WHEREAS IT SHOULD H AVE BEEN OTHER WAY ROUND BECAUSE EVIDENCE IF ANY IS IN THE POSSESSION OF THE AO. 2. THE RELEVANT FACTS OF THE CASE ARE THAT AS PER A IR INFORMATION AVAILABLE WITH THE TAX AUTHORITIES, IT WAS NOTICED THAT THE ASSESSEE HAD D EPOSITED AN AMOUNT OF RS.20 LAKHS IN CASH ON VARIOUS DATES IN SAVING BANK ACCOUNT NUMBER. 025010 00071202 OF THE HDFC BANK LTD, REWARI IN THE YEAR UNDER CONSIDERATION. ACCORDINGL Y, AS PER THE ASSESSMENT ORDER, NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 WAS ISSUED TO THE ASSESSEE AFTER RECORDING OF REASONS ON 16.03.2012. IN RESPONSE THERETO, THE ASSESSEE FI LED ITS RETURN OF INCOME ON 18.02.2013 DECLARING A TOTAL INCOME OF RS.4,426/-. AFTER ISSUA NCE OF NOTICES UNDER SECTION 143(2)/142(1) ALONGWITH QUESTIONNAIRE ETC. REJECTING THE EXPLANAT ION OFFERED THE ASSESSMENT WAS CONCLUDED AT AN INCOME OF RS.25,50,000/-. THE ASSESSEE CHALLENGE D THE JURISDICTION OF THE ASSESSING OFFICER TO PASS THE ORDER AND ALSO CHALLENGED THE DECISION ON MERITS. 3. THE CIT(A) IT WAS SUBMITTED DISMISSED THE JURISD ICTIONAL GROUND. INVITING ATTENTION TO PARA 4.3 OF THE IMPUGNED ORDER IT WAS SUBMITTED THAT THE ASSESSEE VIDE GROUND NO.2 HAD ASSAILED THE ORDER ON THE GROUND THAT THE ASSESSMENT WAS MADE U/ S 143(3)/148 OF THE ACT, WITHOUT PROPER PAGE 2 OF 3 ITA NO.1895/DEL/2016 CHANDER BHAN VS ITO SERVICE OF ALLEGED NOTICE ISSUED U/S 148. THE CIT( A) IT WAS SUBMITTED DISMISSED THE GROUND ON THE GROUND THAT THE ASSESSEE HAD NOT PRODUCED ANY E VIDENCE IN SUPPORT OF HIS CONTENTION. THE SAID GROUND OF APPEAL IT WAS SUBMITTED WAS ACCORDIN GLY DISMISSED REQUIRING THE ASSESSEE TO PRODUCE NEGATIVE EVIDENCE. ACCORDINGLY, IT WAS HIS LIMITED PRAYER THAT THE ISSUE MAY BE SET-ASIDE BACK TO THE FILE OF THE CIT(A) DIRECTING THE SAID A UTHORITY TO FIRST DECIDE THE JURISDICTIONAL ISSUE CONSIDERING THE RECORD. 4. THOUGH THE LD. SR.DR THOUGH RELIED UPON THE IMPU GNED ORDER ON QUERY WAS UNABLE TO SHOW WHAT IS THE KIND OF EVIDENCE, AN ASSESSEE CAN PRODUCE TO SHOW THAT NO NOTICE WAS SERVED UPON IT. ACCORDINGLY, IN THE CIRCUMSTANCES HE HAD N O OBJECTION, IF THE ISSUES ARE RESTORED BACK TO THE FILE OF THE CIT(A). 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. I FIND THAT CONCLUSION DRAWN BY THE CIT(A) ON FACTS CANNOT BE UPHELD. THE FACTUM OF ISSUANCE OF NOTICE WITHIN TIME IS TO BE PROVED ON QUERY BY THE AUTHORI TY WHOSE JURISDICTION IS CHALLENGED FOR WANT OF NOTICE. THE AGGRIEVED PARTY CANNOT BE ASKED TO LEA D NEGATIVE EVIDENCE IN SUPPORT OF ITS CLAIM. WHEN SERVICE OF NOTICE IS CHALLENGED BY A PARTY THE N THE ONUS TO DEMONSTRATE THAT NOTICE WAS ISSUED IN ACCORDANCE WITH LAW IS ON THE AUTHORITY W HOSE JURISDICTION IN THE ABSENCE OF NOTICE IS UNDER CHALLENGE. THE DISMISSAL OF ASSESSEES GROUN D REQUIRING THE ASSESSEE TO PRODUCE EVIDENCE IN SUPPORT OF ITS CONTENTION IS BEYOND THE KEN OF LAW OR LOGIC. THE IMPUGNED ORDER ACCORDINGLY IN VIEW OF THIS PATENT FALLACY WHICH IS AGAINST ALL COMMON SENSE AND LOGIC, IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE FILE OF THE C IT(APPEALS) WITH A DIRECTION TO FIRST DECIDE THE JURISDICTIONAL ISSUE ON FACTS IN ACCORDANCE WITH LA W AND THEREAFTER TO PROCEED TO CONSIDER THE ISSUE ON MERITS IF SO WARRANTED ON FACTS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 01 ST OF FEBRUARY, 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* PAGE 3 OF 3 ITA NO.1895/DEL/2016 CHANDER BHAN VS ITO COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI