Shri Sanjeev Bansal, Agra V. I.TO. 4(4), Agra

ITA 210/AGR/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94108 (ITAT-AGRA)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2001-2002
• Appeal Filed On: 10-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BELU SINHA
• Keywords: Reassessment proceedings
• Section: 142(1); 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SH RI G.C. GUPTA, VICE PRES ID ENT AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER ITA NO. 210/AGRA/2015 ASSESSMENT YEAR: 2001 - 02 SHRI SANJEEV BANSAL, VS. INCOME - TAX OFFICER, F - 13, PROFESSOR COL ONY, 4(4), AGRA. KAMLA NAGAR, AGRA. (PAN :ABZPB 3848 D) APPELLANT BY : SHRI SAHIB P. SATSANGEE, FCA RESPONDENT BY : SMT. BELU SINHA, SR. D.R. DATE OF HEARING : 23.07.2015 DATE OF PRONOUNCEMENT : 12.08.2015 O R D E R PER INTURI RAMA RAO , ACCOUNT ANT MEMBER: THIS IS AN APPEAL FILED BY THE APPELLANT AGAINST THE ORDER OF LD . CIT(A) - II, AGRA DATED 04.02.2015 FOR THE A.Y. 200 1 - 02 , RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. BECAUSE THE LEARNED AUTHORITIES BELOW HAVE ERRED BOTH ON FACTS AND IN LAW I N COMPLETING THE ASSESSMENT UNDER SECTION 144/147 OF THE INCOME TAX ACT 61 EVEN THOUGH THERE WAS NO FAILURE ON THE PART OF THE APPELLANT TO FILE THE RETURN OF INCOME WITHIN THE DUE DATE PRESCRIBED UNDER SECTION 139 OF THE IT ACT 61 AND COMPLIANCE TO NOTICE UNDER SECTION 142(1) OF THE SAID ACT. 2. BECAUSE THE LEARNED AUTHORITIES BELOW HAVE ERRED BOTH ON FACTS AND IN LAW IN COMPLETING THE ASSESSMENT WITHOUT ISSUE OF ANY NOTICE UNDER SECTION 143(2) OF THE INCOME TAX CT 61. THE ASSESSMENT ORDER PASSED IS BAD I N LAW AND LIABLE TO BE QUASHED/ANNULLED. ITA NO.210/AGRA/2015 A.Y. 2001 - 02 2 3. BECAUSE THE LEARNED AUTHORITIES BELOW HAVE ERRED BOTH ON FACTS AND IN LAW IN IGNORING THAT THE LEARNED ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE - 4, AGRA HAS GIVEN THE SANCTION UNDER SECTION 151 OF THE INCOME TAX ACT 61 MECHANICALLY WITHOUT APPLICATION OF MIND AND THE NOTICE ISSUED UNDER SECTION 148 OF THE SAID ACT IS BAD IN LAW. 4. BECAUSE THE LEARNED AUTHORITIES BELOW HAVE ERRED BOTH ON FACTS AND IN LAW IN ADDING AN AMOUNT OF RS.11,72,690/ - (AS AGAINST RS.3, 99,710 IN THE REASONS RECORDED FOR THE ISSUE OF THE NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT 61) BEING THE CONSIDERATION RECEIVED ON THE SALE OF EQUITY SHARES OF LISTED INDIAN COMPANIES DISCLOSED IN THE RETURN OF INCOME AS ALLEGED BOGUS PROCEEDS WITH OUT ACTUAL SALE OF THESE SHARES MERELY ON THE BASIS OF SURMISES AND CONJECTURES. THE ADDITION MADE IS LIABLE TO BE DELETED. 5. BECAUSE THE LEARNED AUTHORITIES BELOW HAVE ERRED BOTH ON FACTS AND IN LAW IN NOT ALLOWING THE COST OF THE INVESTMENT MADE IN THE PURCHASE OF THE EQUITY SHARES OF THE LISTED INDIAN COMPANIES AMOUNTING TO RS.65,682/ - . 2. IN THIS APPEAL THE APPELLANT HAS RAISED A PRELIMINARY ISSUE THAT NO NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) WAS ISSUED BY THE A.O. BEFORE FRAMING REASSESSMENT ORDER. SINCE THIS ISSUE GOES TO THE VERY ROOT OF THE MAT T ER, WE SHALL NOW FIRST DEAL WITH T HIS GROUND OF APPEAL. 3. THE SR. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT NO NOTICE WAS ISSUED IN THIS CASE EXCEPT NOT ICE UNDER SECTION 142(1) OF THE ACT. NOW IT IS TRITE LAW THAT IN THE CASE OF REASSESSMENT PROCEEDINGS, ASSESSMENT MADE WITHOUT ISSUANCE OF NOTICE UNDER SECTION 14 3 (2) IS BAD IN LAW AND LIABLE TO BE QUASHED AS HELD BY THE HON BLE ITA NO.210/AGRA/2015 A.Y. 2001 - 02 3 APEX COURT IN THE CASE OF ACIT & ANOTHER V. HOTEL BLUE MOON (2010) 321 ITR 362 (SC) : - HELD: IT IS MANDATORY FOR THE A.O. TO ISSUE NOTICE U/S 143(2). THE ISSUANCE AND SERVICE OF NOTICE U/S 143(2) IS MANDATORY AND NOT PROCEDURAL. IF THE NOTICE IS NOT SERVED WITHIN THE PRESCRIBED PERIOD, THE EASEMENT ORDER IS INVALID REASSESSMENT ----- NOTICE -------- ASSESSEE INTIMATING ORIGINAL RETURN BE TREATED AS FRESH RETURN ----- REASSESSMENT PROCEEDING COMPLETED DESPITE ASSESSEE FILING AFFIDAVIT DENYING SERVICE OF NOVICE UNDER SECTION 143(2 ) ----- ASSESSING OFFICER NOT REPRESENTING BEFORE COMMISSIONER (APPEALS) THAT NOTICE HAD BEEN ISSUED ---- REASSESSMENT ORDER INVALID DUE TO WANT OF NOTICE UNDER SECTION 143(2) INCOME TAX ACT, 1961, SS. 143, 147, 148(I), PROV. ----- ITO VS. R.K. GUPTA [308 1 ITR 49 (DELHI)] TRIBU. 4. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HON BLE APEX COURT IN THE ABOVE CASE , WE HOLD THAT THE ASSESSMENT ORDER PASSED UNDER SECTION 147 OF THE ACT IS BAD IN LAW. ACCORDINGLY, WE ALLOW THE GROUND OF APPEAL FILED BY THE ASSESSEE. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 12.08.2015 ) SD/ - SD/ - ( G.C. GUPTA ) ( INTURI RAMA RAO ) VICE PRESIDENT ACC OUNTANT MEMB ER DATE: 12 TH AUGUST , 201 5 PBN/* ITA NO.210/AGRA/2015 A.Y. 2001 - 02 4 COPY OF THE ORDER FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCO ME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA