Sh. Jatinder Kumar, MANSA V. The Income-tax Officer, MANSA

ITA 235/ASR/2014

• Counselvise Citation: 23520914 RSA 2014
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-10-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RATINDER KAUR
• Assessee Lawyers: J K GUPTA
• Keywords: Business income
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.235(ASR)/2014 ASSESSMENT YEAR:2004-05 PAN: ABHPG 6210C SH. JATINDER KUMAR VS. INCOME TAX OFFICER, PROP. SULEKH CHAND SHAM LAL, WARD 1(4), MANSA. MANSA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. J.K. GUPTA, ADVOCATE RESPONDENT BY: SMT. RATINDER KAUR, DR DATE OF HEARING: 23/11/2015 DATE OF PRONOUNCEMENT: 15/12/2015 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2004-05, AGAINST THE ORDER DATED 09.01.2014, PASSED BY THE L D. CIT(A), BATHINDA. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THE RE-OP ENING OF THE CASE OF THE ASSESSEE AFTER FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR UNDER APPEAL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THE RE-OP ENING OF THE CASE ON THE BASIS OF THE PHOTOCOPY OF THE DUMB AND FABRICATED DOCUMENTS SUPPLIED BY THE COMPLAINANT WI THOUT MAKING AN INQUIRY IN THE MATTER. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN GIVING A FINDING TH AT THE NOTICE U/S 148 OF THE ACT WAS SERVED UPON THE ASSESSEE. ACCORDINGLY, THE RE-ASSESSMENT IS LIABLE TO BE QUAS HED. ITA NO.235(ASR)/2014 ASSESSMENT YEAR: 2004-05 2 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN GIVING A FINDING T HAT THE AO HAS GOT THE SANCTION FROM THE JCIT OF THE RANGE BEF ORE THE ISSUE OF THE NOTICE AS THE RECORDED REASONS DO NOT MENTIONED THAT. 5. THAT THE COMPLAINANT HAS BEEN DECLARED SHAKAITI BY S.P.(H), MANSA. SO, NO RELIANCE CAN BE PLACED ON HI S BOGUS ALLEGATION/COMPLAINT WHICH DO NOT RELATE TO THE BUS INESS OF THE ASSESSEE. THE ASSESSEE HAS FILED A CRIMINAL CO MPLAINT IN THE COURT OF LAW AGAINST THE COMPLAINANT. SO, OUT O F GRUDGE HE IS MAKING THE COMPLAINTS. ACCORDINGLY, THE RE- ASSESSMENT IS LIABLE TO BE QUASHED. ACCORDINGLY, TH E ADDITIONS ARE ALSO LIABLE TO BE DELETED. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THE ADDIT IONS OF ALLEGED PURCHASES OF RICE BROKEN AND GROSS PROFIT O N THE ALLEGED SALES OF RICE BRAN ON THE BASIS OF A PHOTOC OPY OF THE ALLEGED ACCOUNT STATEMENT, THE ORIGINAL OF WHICH W AS NOT PRODUCED, WHICH DO NOT RELATE TO THE BUSINESS OF TH E ASSESSEE. EVEN THE COMPLAINANT WAS NOT PRODUCED FO R CROSS EXAMINATION. ACCORDINGLY, THE WHOLE OF THE ADDITION S ARE LIABLE TO BE DELETED. 7. THAT IN THE ALTERNATIVE, ONLY PROFIT OF 2% ON TH E TOTAL SALES OF RICE BRAN AND RICE BROKEN CAN BE ADDED. 8. THAT NO SEPARATE ADDITION OF RS.3,78,703/- ON AC COUNT OF RICE BAN FOR RS.8,17,847/- PRIOR TO THE DATE OF PUR CHASES OF RICE BROKEN AS PER ALLEGED ACCOUNT STATEMENT. 9. THAT THE LD. AO HAS NOT TAKEN ACTION AGAINST THE OTHER PERSONS MENTIONED IN THE ALLEGED ACCOUNT STATEMENT. WE CANNOT RELY PARTLY ON THIS STATEMENT. SO, ALL THE A DDITIONS ARE LIABLE TO BE DELETED. 2. AS PER GROUND NO.3 THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE NOTICE U/S 148 OF THE ACT WAS SERVED ON THE ASSESSE E. IN THIS REGARD, THE LD. CIT(A) HAS HELD AS FOLLOWS: 1.4. THE REPORT OF THE NOTICE SERVER, SH.WAZIR SI NGH DATED 29.03.2011 ON THE NOTICE U/S 148 DATED 25.03.2011 C LEARLY ITA NO.235(ASR)/2014 ASSESSMENT YEAR: 2004-05 3 SAYS THAT THE NOTICE HAS BEEN SERVED ON SH. JATINDE R KUMAR, THE APPELLANT. 3. BEFORE ME, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED ON RECORD A COPY OF THE AFORESAID NOTICE ISSUED U/S 148 OF THE I.T.ACT, 1961.THE LD. COUNSEL FOR THE ASSESSEE STATES THAT THE SIGNATURE CONTAINED THEREON ALLEGED TO BE THAT OF THE ASSESSEE IS NOT THAT OF T HE ASSESSEE. IT IS POINTED OUT THAT VIDE GROUND NO.9 TAKEN BEFORE THE LD. CIT( A), IT WAS STATED AS FOLLOWS: THAT THE LD. AO HAS NOT PROVED WITH COGENT EVIDENCE THAT NOTICE ISSUED U/S 148 OF THE ACT HAS BEEN SERVED ON THE AS SESSEE ITSELF. SO, NO RE-ASSESSMENT CAN BE MADE AS VALID SERVICE O F NOTICE ISSUED U/S 148 IS THE FOUNDATION OF THE RE-ASSESSMENT. IT WAS ALSO POINTED OUT THAT VIDE PARA 2 OF THE ASS ESSEES COMMENTS DATED 18.11.2003 ON THE AOS REMAND REPORT DATED 18.11.20 13, IT WAS SUBMITTED BEFORE THE LD. CIT(A) AS FOLLOWS: KINDLY SEE THE OFFICE RECORD AS TO WHETHER THE SER VICE WAS EFFECTED ON THE ASSESSEE AS PER LAW AT THE RELEVANT TIME. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT IN VIEW OF THE ABOVE, THERE BEING NO SERVICE OF NOTICE U/S 148 O F THE ACT ON THE ASSESSEE, ALL THE PROCEEDINGS PURSUANT THERETO ARE NULL AND VOID. 5. ON THE OTHER HAND, SUPPORTING THE IMPUGNED ORDER IN THIS REGARD, THE LD. DR HAS CONTENDED THAT THE NOTICE SERVER HA S RECORDED ON THE NOTICE U/S 148 OF THE ACT, AS FOLLOWS: EH NOTICE JATINDER KUMAR TE SERVICE KARWAI SD/- WAZIR SINGH/29.3.2011 ACCORDING TO THE LD. DR, THEREFORE, THERE IS NO DOU BT OF THE SERVICE OF THE NOTICE ON THE ASSESSEE. APROPOS THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE SIGNATURE CONTAINED ON THE NOTICE IS NOT THAT OF THE ASSESSEE, THE LD. DR STATES THAT THE ASSESSEE IS NO T CONSISTENT IN SIGNING ITA NO.235(ASR)/2014 ASSESSMENT YEAR: 2004-05 4 THE INCOME TAX PAPERS AND THAT HE USES DIFFERENT SI GNATURES AT DIFFERENT TIMES. 6. BE THAT AS IT MAY, SINCE THE ISSUE AS TO WHETHER THE SIGNATURE CONTAINED ON THE NOTICE U/S 148 IS OR IS NOT THAT OF THE ASSESSEE, THE PARTIES ARE AGREED AT THE SUGGESTION OF THE LD. COU NSEL FOR THE ASSESSEE, THAT THE SIGNATURE REQUIRES TO BE SENT TO THE HANDW RITING EXPERT FOR EXAMINATION AND DETERMINATION. 7. ACCORDINGLY, THE MATTER IS REMITTED TO THE FILE OF THE AO FOR GETTING THE SIGNATURE, AS CONTAINED ON THE COPY OF THE NOTI CE U/S 148 ISSUED TO THE ASSESSEE, TO BE EXAMINED BY AN HANDWRITING EXPE RT AND THE AO WILL THEREAFTER DECIDE AS TO WHETHER THE NOTICE WAS PROP ERLY SERVED ON THE ASSESSEE. THE DECISION ON MERITS WOULD FOLLOW. 8. ORDERED ACCORDINGLY. THE ASSESSEE SHALL BE AFFOR DED DUE AND ADEQUATE OPPORTUNITY OF HEARING AND HE WILL CO-OPE RATE IN THE FRESH PROCEEDINGS BEFORE THE AO. 9. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15TH DECEMBER, 2015. SD/- (A.D. JAIN) JUDICIAL MEMBER DATED: 15/12/2015 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE:SH.JATINDER KUMAR, MANSA 2. THE ITO, 1(4),MANSA 3. THE CIT(A), BATHINDA 4. THE CIT, BATHINDA 5. THE SR. DR, ITAT, ASR.