Appeal details
Counselvise Citation
[2016] 121 COUNSELVISE.COM (IT) 4150 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
7 month(s) 19 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
07-12-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC 3
Next Hearing Date
28-09-2016
Assessment Year
2009-2010
Appeal Filed On
18-04-2016
Judgement Text
I.T.A .NO.-2099/DEL/2016 KAMAL KISHORE AGARWAL VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-2099/DEL/2016 (ASSESSMENT YEAR-2009-10) KAMAL KISHORE AGARWAL, 4, RACQUET COURT ROAD, CIVIL LINES, DELHI-110054. PAN-AFIPA0583K ( APPELLANT) VS ITO, WARD-20(2), VIKAS BHAWAN, I.P.ESTATE, NEW DELHI-110002. (RESPONDENT) ASSESSEE BY SH.MANOJ KUMAR, CA REVENUE BY SH.ANIL SHARMA, SR.DR DATE OF HEARING 29 .09.2016 DATE OF PRONOUNCEMENT 07.12.2016 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 05.02.2016 OF CIT(A)-32, NEW DELHI PERT AINING TO 200910 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE APPELLANTS CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN FACTS AND IN LAW IN UPHOLDING THE VALIDITY OF INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E APPELLANTS CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN FACTS AND IN LAW IN UPHOLDING THE ADDITION OF RS.38,42,500/- MADE BY TH E AO UNDER SECTION 69/69A OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF ALLEGED P URCHASE OF HIS OWN LAND. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 2. A PERUSAL OF THE RECORD SHOWS THAT AS PER THE IN FORMATION AVAILABLE WITH THE TAX AUTHORITIES THE ASSESSEE PURCHASED AGRICULTURAL LAN D BEARING NO.(3-0) BIGHAS, THE PART OF KHASRA NO.111 MIN SITUATED IN VILLAGE-WAZIRABAD, DE LHI FOR A CONSIDERATION OF RS.36,25,000/- FROM SH. PRAVEEN AGGARWAL VIDE SALE DEED DATED 06.0 3.2009 REGISTERED BEFORE THE SUB- REGISTRAR-I, KASHMERE GATE, DELHI-06. IT WAS NOTIC ED THAT THE SOURCE OF THE INVESTMENT WAS NOT ADDRESSED AS ON A PERUSAL OF THE BALANCE SHEET, IT WAS FOUND THAT NO ASSETS WERE REFLECTED THEREIN. ACCORDINGLY, NOTICE U/S 148 DA TED 09.05.2012 AS PER PARA 1 OF THE ASSESSMENT ORDER WAS ISSUED. AS A RESULT THEREOF, T HE ASSESSEE RETURNED AN INCOME OF RS.2,24,609/-. CONSIDERING THE REPLY OF THE ASSESS EE THE INCOME WAS ASSESSED AT RS.40,67,109/- AS A RESULT OF THE ADDITION OF RS.38 ,42,500/-. THE SAID ADDITION AND THE PAGE 2 OF 3 I.T.A .NO.-2099/DEL/2016 KAMAL KISHORE AGARWAL VS ITO JURISDICTION WAS CHALLENGED BY THE ASSESSEE IN APPE AL BEFORE THE FIRST APPELLATE AUTHORITY. AS PER THE FOLLOWING EXTRACT OF THE SUBMISSIONS EXTRAC TED BY THE CIT(A), THE ASSESSEE ASSAILED THE JURISDICTION ON THE BASIS OF THE FOLLOWING ARGU MENTS ON FACTS:- THE ASSESSEE FILED ANOTHER WRITTEN SUBMISSION DATE D 01.02.2016 CHALLENGING THE RE-OPENING OF THE ASSESSMENT PROCEEDINGS U/S 148. THE ASSESSEE IN THE SUBMISSION HAS MENTIONED THAT THE A.O. HAD ISSUED REASON FOR RE-OPENING DATED 07.05.2012 WHICH HAD FACTUAL INACCURACIES. A FTER REALIZING THE MISTAKE THE A.O. ISSUED FRESH REASONS FOR RE-OPENING ANTI D ATING IT TO 07.05.2012 AND DESTROYED THE ORIGINAL REASONS FOR RE-OPENING. IN THIS LETTER THE ASSESSEE HAS ALSO NARRATED THE S EQUENCE OF EVENTS WHICH LED TO EXECUTION OF THE PURCHASE DEED DATED 06.03.2009. T HE ASSESSEE HAS ALSO MENTIONED THAT THE A.O HAS NOT MENTIONED THE SECTIO N WHICH THE ADDITION OF RS.3842500/- WAS MADE BY HIM. (EMPHASIS PROVIDED) 3. THESE SERIOUS ALLEGATIONS WERE REJECTED BY THE C IT(A) BY HOLDING THAT THESE WERE BALD ALLEGATIONS WITHOUT ANY DOCUMENTARY EVIDENCE. FOR READY REFERENCE, THE RELEVANT EXTRACT IS REPRODUCED FROM PAGE 6 OF THE IMPUGNED ORDER:- IN HIS LETTER DATED 01.02.2016 THE ASSESSEE HAS MA DE BALD ALLEGATIONS AGAINST THE A.O. WITHOUT ANY DOCUMENTARY EVIDENCE. THE ASSESSE E NEVER CHALLENGED THE GROUNDS FOR REOPENING DURING THE ASSESSMENT PROCEED INGS. THE GROUNDS OF RE- OPENING WAS DULY SERVED UPON HIM ALONG WITH THE NOT ICE U/S 148. IN RESPONSE TO THIS NOTICE THE ASSESSEE VIDE HIS LETTER DATED 18.0 6.2010 HAD STATED THAT THE RETURN FILED BY HIM U/S 139(1) SHOULD BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S 148. THE ASSESSEE DIDNT TAKE ANY OBJECTION TO THE RE-OP ENING AND MADE HIS SUBMISSIONS BEFORE THE A.O. ON MERIT OF THE CAS E. IN VIEW OF THIS THE ALLEGATION THAT THE A.O ANTI DATED THE REASONS FOR RE-OPENING IS BASELESS AND IS REJECTED. (EMPHASIS PROVIDED) 4. ASSAILING THE SAID CONCLUSION, LD. AR, MR.MANOJ KUMAR, CA APPEARING ON BEHALF OF THE ASSESSEE, SUBMITTED THAT HE HAD BEEN SEEKING TIME T O FILE PAPER BOOK CONSISTING OF RELEVANT EVIDENCES AS THE ASSESSEE HAS COPIES OF BOTH THE RE ASONS RECORDED BY THE ASSESSING OFFICER AND THE ASSESSEE WAS READY TO FILE AN AFFIDAVIT IN SUPPORT OF THE SAID ASSERTION. ACCORDINGLY, AFTER CONSIDERING THE SUBMISSIONS OF THE PARTIES BE FORE THE BENCH, IN VIEW OF THE SERIOUS ISSUES RAISED IN THE PRESENT APPEAL, IT IS DEEMED A PPROPRIATE TO SET ASIDE THE ISSUES BACK TO THE FILE OF THE CIT(A) DIRECTING HIM TO FIRST ADJUD ICATE UPON THE JURISDICTIONAL ISSUES. WHILE SO DIRECTING, IT IS MADE CLEAR THAT THE MERE FACT THAT THE ASSESSEE HAS NOT CHALLENGED THE REOPENING AT THE ASSESSMENT STAGE ITSELF, DOES NOT MEAN THAT THE ASSESSEE HAS GIVEN UP ITS RIGHTS TO CHALLENGE THE SAME AT A LATER STAGE. WHE N JURISDICTION OF AN AUTHORITY IS QUESTIONED PAGE 3 OF 3 I.T.A .NO.-2099/DEL/2016 KAMAL KISHORE AGARWAL VS ITO THEN IT IS INCUMBENT UPON THE ADJUDICATION AUTHORIT Y TO ADDRESS THE FACT AND DECIDE BY A SPEAKING ORDER WHETHER THE AUTHORITY WHO PASSED THE ORDER HAD THE JURISDICTION TO PASS THE ORDER. BEING A FUNDAMENTAL FOUNDATIONAL FACT, ITS EXISTENCE CANNOT BE LEFT IN LIMBO AND THE ISSUE IS NECESSARILY FIRST REQUIRED TO BE ADDRESSE D BY THE ADJUDICATION AUTHORITY. IN CASE IT IS FOUND THAT THE ASSESSING OFFICER HAS SUBSTITUTED HI S ORIGINAL REASONS RECORDED FOR REOPENING THE PROCEEDINGS BY ANOTHER ORDER THAN THIS IS A VER Y SERIOUS LAPSE AND THE ISSUE MAY ALSO NECESSITATE A REDRESSAL FOR INTERNAL ADMINISTRATIVE PURPOSES ALSO. THUS, EVIDENCE IN SUPPORT THEREOF IT IS DIRECTED TO BE FILED BEFORE THE CIT(A ). THE CIT(A) CONSIDERING THE SAME SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 07 TH OF DECEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI
