Mr. Manoj Kumar Bansal, New Delhi V. ACIT (OSD), New Delhi

ITA 1920/DEL/2015

• Counselvise Citation: 192020114 RSA 2015
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 23-10-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 06-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K JAIN
• Assessee Lawyers: R C RAJ
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC-II : NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO.1920/DEL/2015 ASSESSMENT YEAR : 2001-02 MANOJ KUMAR BANSAL, 211, NEW DELHI HOUSE, 27, BARAKHAMBA ROAD, NEW DELHI. PAN: AAHPB3134F VS. ACIT (OSD), WARD-37(1), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.C. RAJ, ADVOCATE DEPARTMENT BY : SHRI M.K. JAIN, SR. DR DATE OF HEARING : 23.10.2015 DATE OF PRONOUNCEMENT : 17.11.2015 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE CIT(A)-XX, NEW DELHI, DATED 21.01.2015 FOR ASSESSME NT YEAR 2001-02. 2. AFTER HEARING THE RIVAL CONTENTIONS AND PERUSING THE MATERIAL ON RECORD, I HOLD AS FOLLOWS. ITA NO.1920/DEL/2015 2 3. I FIRST DISPOSE OF GROUND NO.1, WHICH READS AS F OLLOWS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) G ROSSLY ERRED IN:- A) HOLDING THAT THE NOTICE U/S 148 OF INCOME TAX ACT, 1961 WAS VALIDLY SERVED ON THE APPELLANT. B) HOLDING THAT THE OBJECTION FOR RE-OPENING OF THE AS SESSMENT WAS DISPOSED OF BY THE LD. ASSESSING OFFICER. C) HOLDING THAT RE-OPENING OF THE ASSESSMENT IS VALID WHICH IS OTHERWISE BAD IN LAW AND WITHOUT JURISDICTION. D) HOLDING THAT THE COPY OF ADVERSE MATERIAL USED AGAI NST THE ASSESSEE WAS PROVIDED TO THE ASSESSEE. 4. ON THE ISSUE OF SERVICE OF NOTICE, THE LD.CIT(A) AT PARA 5.2 STATES THAT THE ASSESSEE HAS RESPONDED TO THE NOTICE ISSUE D U/S 148, VIDE HIS LETTER DATED 23.10.2008 AND, HENCE, THERE IS NO VALID GROU ND TO STATE THAT NOTICE U/S 148 HAS NOT BEEN SERVED. IN MY VIEW, SUCH PLEA CANNOT BE TAKEN. THE AO HAS EVADED THE ISSUE WHETHER THE NOTICE U/S 148 WAS SERVED OR NOT. THE ASSESSEE HAS BEEN CONTENDING ALL ALONG THAT NO NOTICE WAS SERVED ON IT. THE CONTENTION WAS RAISED BEFORE THE LD. AO AL SO. THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ISHAN HOLDINGS LTD. (2009) TIOL 495 (DEL) AND IN THE CASE OF CIT VS. RAJESH KUMAR SHARMA, 311 ITR 235, HAS DECIDED IN FAVOUR OF THE ASSESSEE. THUS, THIS ASSE SSMENT HAS TO BE ITA NO.1920/DEL/2015 3 ANNULLED AS WITHOUT JURISDICTION ON THE SOLE GROUND OF NON-SERVICE OF NOTICE U/S 148 OF THE ACT ON THE ASSESSEE. EVEN OT HERWISE, ADMITTEDLY, THE ASSESSEE HAS FILED HIS OBJECTIONS FOR RE-OPENING OF ASSESSMENT. THE AO HAS NOT DISPOSED OF THESE OBJECTIONS. THE HONBLE DELHI HIGH COURT IN THE CASE OF PR. COMMISSIONER OF INCOME TAX VS. TUPPERWARE INDIA PVT. LTD., IN ITA NO.415/2015, VIDE PARA NO.6, HAS HELD AS FOLLOWS:- 6. THE COURT IS OF THE CONSIDERED VIEW THAT AFTER HAVING CORRECTLY UNDERSTOOD THE DECISION OF THE SUPREME COURT IN G.K.N. DRIVESHAFTS (INDIA) LTD. (SUPRA) AS MANDATORILY REQUIRING THE AO TO COMPLY WITH THE PROCEDURE LAID DOWN THEREIN AND TO DISPOSE OF THE OBJECTIONS TO THE REOPENING ORDER WITH A SPEAKING ORDER, THE CIT(A) COMMITTED AN ERROR IN NOT QUASHING THE REOPENING ORDER AND THE CONSEQUENT ASSESSMENT. 5. RESPECTFULLY FOLLOWING THE JURISDICTIONAL HIGH C OURT DECISION, WE HOLD THE ASSESSMENT IS BAD IN LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17.11.20 15. SD/- [J.SUDHAKAR REDDY] ACCOUNTANT MEMBER DATED, 17 TH NOVEMBER, 2015. DK ITA NO.1920/DEL/2015 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.