Sushil Kumar, V. ITO,

ITA 2291/DEL/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58458 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 24-01-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 12-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SRUJANI MOHANTY
• Section: 148

Judgement Text

ITA NO. 2291/DEL/2008 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2291/DEL/2008 A.Y. : 2002-03 SH. SUSHIL KUMAR, P/O SUSHIL BRICK KILN, VILLAGE : MIRZAPUR NASRULLAPUR, POST: BAHJOI-202410 TEHSIL : CHANDAUSI DISTT. MORADABAD (UP) (PAN: VS. INCOME TAX OFFICER, BADAUN (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : SH. RAJIV JAIN, CA DEPARTMENT BY : MRS. SRUJANI MOHANTY, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 26.3.2 008 PERTAINING TO ASSESSMENT YEAR 2002-03. 2. THE GROUNDS RAISED READ AS UNDER:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , BAREILLY HAS ERRED ON FACTS AND IN LAW IN DECIDING THE APPEA L. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS NEITHER JUSTIFIED NOR CORRECT IN LAW IN NOT CONCEA LING THE ASSESSMENT ORDER WHEN NOT NOTICE UNDER SECTION 148 WAS ITA NO. 2291/DEL/2008 2 EVER SERVED UPON THE ASSESSEE IN THE MANNER AS PRESC RIBED UNDER SECTION 282 OF THE IT ACT, 1961. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS HIMSELF AGREED THAT THE NOTICE WAS SERVED UPON SHRI SACHIN KUMAR AND THE NOTICES SENT BY REGISTERED POST WERE RECEIVED BACK AS UNSERVED WITH POSTAL REMARK INCOMP LETE ADDRESS. HE HAS ALSO OBSERVED THAT THE ASSESSI NG OFFICER SHOULD HAVE TAKEN ENOUGH CARE TO ENSURE THAT THE N OTICES SHOULD HAVE BEEN PROPERLY SERVED THROUGH VALID MEAN S OF SERVICES. THESE OBSERVATIONS OF THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) CONFIRMED THAT THERE WAS NO VA LID SERVICE OF NOTICE UNDER SECTION 148. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS NEITHER JUSTIFIED NOR CORRECT IN LAW IN DIRECTING T HE ASSESSING OFFICER TO ADOPT THE STATUS OF THE ASSESSEE AS OF INDIVIDUAL INSTEAD OF HOLDING THE ASSESSMENT ORDER AS ILLEGAL AND BAD IN LAWS SINCE NEITHER ANY AOP WAS IN EXISTENCE NOR N OTICE WAS ISSUED IN THE STATUS OF AOP. 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS NEITHER JUSTIFIED NOR CORRECT IN LAW IN CONFIRMING T HE JURISDICTION OF ASSESSEE WITH INCOME TAX OFFICER, BA DAUN WHEREAS THE JURISDICTION CORRECTLY LIES WITH INCOME TAX OFFICER, CHANDAUSI AND THE EVIDENCES FILED BY THE A PPELLANT HAVE NOT BEEN CONSIDER PROPERLY AND LAWFULLY AND H E HAS FURTHER ERRED IN DETERMINING THE JURISDICTION ON THE BASIS OF RESIDENCE INSTEAD OF BUSINESS PLACE. THE PROVISION S OF ITA NO. 2291/DEL/2008 3 SECTION 124(1)(A) HAVE NEITHER BEEN PROPERLY NOR BE EN LAWFULLY CONSIDERED. 6. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DETERMINATION OF TOTAL INCOME, BASIS ADOPTED IN UNJUSTIFIED WITHOUT CITING ANY COMPARABLE CASE. TOT AL INCOME DETERMINED IS HIGHLY EXCESSIVE. 7. THAT THE APPEAL MAY KINDLY BE ALLOWED AND ORDERS FOR NECESSARY RELIEF BE MADE. 3. IN THIS CASE ASSESSMENT WAS MADE U/S. 144/148 OF THE IT ACT. THE ASSESSING OFFICER HAS BROUGHT A SUM OF ` 6,20,0 00/- TO TAX IN THE STATUS OF AN AOP. 4. ASSESSEE APPEALED REGARDING THE JURISDICTION WITH THE LD. COMMISSIONER OF INCOME TAX (APPEALS). LD. COMMISSION ER OF INCOME TAX (APPEALS) HELD THAT IN HIS OPINION THE ACTION O F ITO, BADUAN ASSUMING JURISDICTION ON THE BASIS OF INFORMATION OF TRADE TAX DEPARTMENT OVER THE ASSESSEES CASE AND COMPLETING THE ASSESSMENT IS NOT WRONG. THEREFORE, REJECTED THIS GROUND BY THE ASSESSEE. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE US ON THE I SSUE OF JURISDICTION. 6. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IN ASS ESSEES OWN CASE ON SAME FACTS OF THE ASSESSMENT YEAR 2003-04 IN ITA NO. 2292/DEL/2009, THIS TRIBUNAL HAS DECIDED THE ISSUE I N FAVOUR OF THE ASSESSEE ON THE ISSUE OF JURISDICTION. 6.1 LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CONTR OVERT THESE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE. ITA NO. 2291/DEL/2008 4 7. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT O F THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND THAT THE TRIBUNAL IN ASSESSEES OWN CASE CITED ABOVE HAS HELD AS UNDER:- 7. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IT IS A SETTLED LAW T HAT FOR THE ASSUMPTION OF JURISDICTION U/S. 147, NOTICE U/S. 148 SHOULD BE SERVED ON THE ASSESSEE. IN THIS CASE, NOTICE U/S. 148 WAS SERVED ON ONE SHRI SAICHN KUMAR AND NOT ON THE ASSESSEE. SECONDLY, THE BRICK KILN BUSINESS OF THE ASSESSEE WAS LOCATED AT VILL. MIRZAP UR NASRULLAPUR, POST OFFICE RAMPURA (BAHJOI), TEHSIL CHANDAUSI, DISTT. MORADABAD, WHEREAS THE ORDER HAS BEEN PASSED BY ITO, BUDAUN. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO DISCUSSED IN THE RODER THAT ENTIRE CONFUSION AROSE ON ACCOUNT OF WOR D ISLAM NAGAR WHICH WAS IN THE JURISDICTION OF ITO, BADAUN. ASSESSEES PLACE OF BUSINESS WAS MIRAZAPUR NASRULLAPUR ISLAM NAGAR FALLING IN THE AREA OF DIST RICT MORADABAD AND, THEREFORE, THE NOTICE ISSUED BY ITO, BADAUN WAS WITHOUT JURISDICTION ON TWO COUNTS. FIRSTLY, HE HAD NO JURISDICTION TO ISSUE NOTICE TO TH E ASSESSEE AND SECONDLY THE NOTICE WAS NOT SERVED ON THE ASSESSEE, BUT ON ONE SHRI SACHIN KUMAR. THEREFORE, IN OUR CONSIDERED OPINION, THE ASSESSMEN T MADE BY THE ASSESSING OFFICER IS BAD IN LAW AND DESERVES TO BE ANNULLED. WE ORDER ACCORDINGLY. ITA NO. 2291/DEL/2008 5 8. RESPECTFULLY FOLLOWING THE PRECEDENT AS ABOVE, IN OUR CONSIDERED OPINION, THE ASSESSMENT MADE BY THE ASSESSING OFFI CER IS BAD IN LAW AND THIS HAS TO BE ANNULLED. 9. SINCE WE HAVE ANNULLED THE ASSESSMENT ON THE GRO UND OF ASSUMPTION OF JURISDICTION, WE DO NOT FEEL TO ADJUDI CATE UPON THE OTHER GROUNDS RAISED BY THE ASSESSEE. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24/1/2012. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 24/1/2012 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES