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ITA 2264/DEL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98144 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 17-11-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 13-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R SANTHAN AM; D OSTWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Opportunity of cross examination
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. A. T. VARKEY , JM ITA NO. 2264/DEL/2010 : ASSTT. YEAR : 2003 - 04 M/S SHANKAR COMPUTER FORMS PVT . LTD., 608/8, KRISHNA STREET NO.9, MAUJ PUR, DELHI - 110053 VS INCOME TAX OFFICER, WARD - 8(1), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AA BCV4285C ASSESSEE BY : SH. R. SANTHANAM, ADV. & D. OSTWAL, CA REVENUE BY : SH. SUJIT KUMAR , SR. DR DATE OF HEARING : 17.11 .2015 DATE OF PRONOUNCEMENT : 09 .12 .2015 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 12.03.2010 OF LD. CIT(A) - XI , NEW DELHI . 2. FOLLOWING GROUND S HAVE B EEN RAISED IN THIS APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW, IN UPHOLDING THE ILLEGAL ACTION WITHOUT JURISDICTION OF THE ITO TO ISSUE NOTICE AND REOPEN ASSESSMENT OF THE APPELLANT UNDUE S ECTION 147 AND THE PERVERSE ORDER PASSED BY THE ITO OUGHT TO HAVE BEEN VACATED AND FAILURE TO DO SO HAS VITIATED THE IMPUGNED ORDER ITA NO . 2264 /DEL /201 0 SHANKAR COMPUTER FORMS PVT. LTD. 2 AS THE ENTIRE ACTION, ORDER AND NOTICE FOR REASSESSMENT ARE ILLEGAL, WITHOUT JURISDICTION, UNSUSTAINABLE AND HENCE LIABLE TO BE VACATED AS BEING NONEST IN LAW. 2. THE CIT(A) HAS ERRED IN UPHOLDING THE IMPUGNED ASSESSMENT PERVERSELY FRAMED BY THE ASSESSING OFFICER EVEN WITHOUT COMPLYING WITH THE MANDATORY CONDITIONS OF SECTION 147 TO 153 AND WITHOUT SERVING THE MANDATORY NOTICE UNDER SECTION 148 AND 143(2) OF THE INCOME TAX ACT, 1961. 3. THE CIT(A) HAS ERRED IN NOT BEING GUIDED BY CORRECT FACTUAL AND LEGAL POSITION, RECORDS, AND BINDING PRECEDENTS PLACED BEFORE HIM AND HAS PASSED THE IMPUGNED ORDER ERRONEOUSLY WHICH IS THEREFOR E LIABLE TO SET ASIDE AND QUASHED. 4. THE CIT(A) HAS ALSO ERRED IN UPHOLDING THE ILLEGAL ADDITION OF RS.1,55,50,000/ - PERVERSELY MADE BY THE ITO AND IMPUGNED ORDER ARE THEREFORE LIABLE TO BE QUASHED AND THE ADDITIONS SO ILLEGALLY MADE AND CONFIRMED OUGHT TO BE DELETED. 5. THE CIT(A) HAS ALSO ERRED IN UPHOLDING THE ILLEGAL DEMANDS OF TAX AS WELL AS INTEREST ERRONEOUSLY RAISED BY THE ITO TO THE EXTENT OF ADDITIONS UPHELD BY HIM AND THE ENTIRE ILLEGAL DEMANDS OF TAX AS WELL AS INTEREST MUST BE SET ASIDE AND QUASHED AS UNSUSTAINABLE BOTH ON FACTS AND IN LAW. 6. THE CIT(A) OUGHT TO HAVE DEALT WITH ALL THE SUBMISSIONS AND OBJECTIONS OF THE APPELLANT AND OUGHT TO HAVE FOLLOWED THE BINDING DECISIONS OF THE ITA NO . 2264 /DEL /201 0 SHANKAR COMPUTER FORMS PVT. LTD. 3 COURTS AND TRIBUNALS PLACED BEFORE HIM BUT HAS UNFORTUNAT ELY NOT DONE SO AND HAS THUS PASSED THE IMPUGNED ORDER ERRONEOUSLY WHICH IS LIABLE TO BE VACATED IN THIS APPEAL. 7. THAT THE REMAND ORDER U/S 250(4) ISSUED BY LD. CIT(A) DATED 20.12.2007, NO COMPLIANCE WAS MADE BY ITO, WARD - 8(1), BUT WAS SENT AN ILLEGAL, INCORRECT, FALSE AND FABRICATED SO - CALLED REMAND REPORT DATED 15.02.2010 AND CIT(A) ALSO ERRED BY NOT PROVIDING THE OPPORTUNITY OF CROSS EXAMINATION OF THE OFFICERS AND PERSONS WHOSE STATEMENTS WERE USED AGAINST THE ASSESSEE, VIOLATIVE OF NATURAL JUSTICE, LIABLE TO BE QUASHED AND SET ASIDE. 8. THE APPELLANT CRAVES LEAVE TO RAISE ADDITIONAL GROUNDS AND FILE NECESSARY PAPER BOOK BEFORE THE HON BLE TRIBUNAL TAKES UP HEARING OF THE CASE AND RECORDS OF BOTH LOWER AUTHORITIES BE DIRECTED TO BE PLACED BEFORE THE TRIBUNAL BY THE REVENUE. 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NO. 2 RELATES TO THE VALIDITY OF THE ASSESSMENT FRAMED U/S 147 R.W.S. 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WITHOUT SERVING THE MANDATORY NOTICE U/S 143(2) OF THE ACT. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VER Y OUTSET STATED THAT THIS ISSUE WAS RAISED BEFORE THE LD. CIT(A), HOWEVER, THE SAME IS NOT ADJUDICATED BY HIM. OUR ATTENTION WAS DRAWN TOWARDS GROUNDS OF APPEAL RAI SED BEFORE THE LD. CIT(A) AND IT WAS SUBMITTED THAT THE ITA NO . 2264 /DEL /201 0 SHANKAR COMPUTER FORMS PVT. LTD. 4 ASSESSEE RAISED AS MANY AS NINE GROUNDS BEFORE THE LD. CIT(A) AND GROUND NO. 2 WAS RELATED TO VALIDITY OF THE JURISDICTION WHICH HAD NOT BEEN ADJUDICATED BY THE LD. CIT(A). 4 . IN HIS RIVAL SUBMISSION S THE LD. DR COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED FROM THE GROUNDS OF AP PEAL RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A) THAT THE ASSESSEE HAS RAISED NINE GROUNDS , OUT OF THOSE GROUNDS , GROUND NO. 2 READS AS UNDER: 2.THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. A.O. HAS ERRED IN LAW AND ON FACTS IN FRA MING IMPUGNED ASSESSMENT ORDER WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT SERVING THE MANDATORY NOTICES UNDER SECTIONS 148 AND 143(2) OF THE INCOME TAX ACT, 1961. 6 . ON PERUSING THE IMPUGNED ORDER, IT IS NOTICED THAT T HE SAID GROUND HAS NOT BEE N ADJUDICATED BY THE LD. CIT(A). WE, THEREFORE, SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) AND DIRECT HIM TO DECIDE THE LEGAL ISSUE AGITATED BY THE ASSESSEE IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO . 2264 /DEL /201 0 SHANKAR COMPUTER FORMS PVT. LTD. 5 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ( ORDER PRON OUNCED IN THE COURT ON 09 /12 /2015 ) SD/ - SD/ - ( A. T. VARKEY ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 09 /12 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR