Sh. Anil Kumar Singhal, New Delhi V. Pr. CIT, Ghaziabad

ITA 2390/DEL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5252 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 21-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMAN CHOPRA
• Keywords: Opportunity of being heard
• Section: 263

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SMT BEENA A PILLAI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 2388/DEL/2017 (ASSESSMENT YEAR: 2010-11) ANITA RANI, C/O. M/S. RRA TAXINDIA, C-28, SOUTH EXTENSION PART-I, NEW DELHI PAN: AZAPR3313C VS. PR. CIT, GHAZIABAD (APPELLANT) (RESPONDENT) ITA NO. 2389/DEL/2017 (ASSESSMENT YEAR: 2010-11) ANKUSH SINGHAL, C/O. M/S. RRA TAXINDIA, C-28, SOUTH EXTENSION PART-I, NEW DELHI PAN: AZAPR3313C VS. PR. CIT, GHAZIABAD (APPELLANT) (RESPONDENT) ITA NO. 2390/DEL/2017 (ASSESSMENT YEAR: 2010-11) ANIL KUMAR SINGHAL, C/O. M/S. RRA TAXINDIA, C-28, SOUTH EXTENSION PART-I, NEW DELHI PAN: AZAPR3313C VS. PR. CIT, GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GAUTAM JAIN, ADV REVENUE BY: SHRI RAMAN CHOPRA, CIT DR DATE OF HEARING 16/05/2019 DATE OF PRONOUNCEMENT 17/05/2019 O R D E R PER PRASHANT MAHARISHI, A. M. 1. ALL THESE 3 APPEALS FILED BY THE DIFFERENT ASSESSEE ARE AGAINST THE ORDER PASSED BY THE LEARNED PR. COMMISSIONER OF INCOME TA X, GHAZIABAD UNDER SECTION 263 OF THE INCOME TAX ACT IN THEIR RESPECTI VE CASES INVOLVING THE PAGE | 2 SIMILAR ISSUE AND THEREFORE THEY ARE TAKEN FOR HEAR ING TOGETHER. THE PARTIES ALSO ADVANCED THEIR ARGUMENTS IN ALL 3 APPE ALS IDENTICALLY. HENCE, BY THIS COMMON ORDER THOSE ARE DISPOSED OF. 2. THE CHALLENGE TO THE APPEAL IN ITA NO. 2388/DEL/201 7 BY SMT ANITA RANI FOR ASSESSMENT YEAR 2010-11 TO THE ORDER OF THE PRI NCIPAL COMMISSIONER OF INCOME TAX, GHAZIABAD DATED 22/3/2017 PASSED U/S 263 OF THE INCOME TAX ACT WHEREIN IT IS STATED THAT ASSESSEE H AS NOT BEEN SERVED UP ON ANY NOTICE BEFORE PASSING ORDER UNDER SECTION 263 OF THE INCOME TAX ACT , THEREFORE, ASSESSEE DID NOT GET ANY OPPOR TUNITY OF BEING HEARD, THEREFORE THE ORDER PASSED BY THE LEARNED PR COMMIS SIONER OF INCOME TAX IS WITHOUT ANY JURISDICTION. THE ASSESSEE CHAL LENGES THE ABOVE ISSUE IN GROUND NO. 1 OF THE APPEAL WHEREIN IT IS CHALLEN GED THAT THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX HAS ERRED IN L AW AND ON FACTS IN ASSUMING JURISDICTION UNDER SECTION 263 OF THE INCO ME TAX ACT. 3. THE LEARNED AUTHORISED REPRESENTATIVE REFERRED TO P AGE NUMBER 7 OF THE ORDER, WHEREIN IN PARA NUMBER 1, IT IS MENTIONED TH AT :- HAVING RECEIVED THE PROPOSAL SHOW CAUSE NOTICE DAT ED 22/2/2017 WAS ISSUED TO THE ASSESSEE BUT ON THE DATE FIXED FO R HEARING. NONE ATTENDED THE PROCEEDINGS. INSTEAD SHOW CAUSE NOTIC E WAS RETURNED UNSERVED ON 2/3/2017 WITH THE REMARK ASSESSEE COULD NOT BE TRACED IN SPITE OF BEST EFFORTS. IT IS RELEVANT TO MENTION THAT ASSESSMENT WAS COMPLETED IN THE MONTH OF APRIL, 201 5 AND NOTICES WERE SERVED ON THE SAME ADDRESS. THE RETURN OF SO CAUSE NOTICE ISSUED UNDER SECTION 263 OF THE INCOME TAX ACT INDI CATES THAT THE ASSESSEE HAS DELIBERATELY AND INTENTIONALLY RETURNE D THE SHOW CAUSE NOTICE SERVED UNDER SECTION 263 OF THE ACT AS HE HA D NO EXPLANATION TO FURNISH IN THE CASE. 4. STATING THE ABOVE FACTS, THE LEARNED AUTHORISED REP RESENTATIVE SUBMITTED THAT THE LEARNED PRINCIPAL COMMISSIONER OF INCOME T AX HAS PASSED THE ORDER UNDER SECTION 263 OF THE INCOME TAX ACT WITHO UT SERVING ANY NOTICE ON THE ASSESSEE, SO ASSESSEE DID NOT GET ANY OPPORT UNITY OF HEARING , WHICH IS THE BASIC CONDITION OF ORDER U/S 263 OF TH E ACT. HE THEREFORE SUBMITTED THAT THE ORDER PASSED BY THE LEARNED PRIN CIPAL COMMISSIONER OF INCOME TAX SUFFERS FROM THE BASIC JURISDICTIONAL DE FECT. HE FURTHER RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT I N 86 TAXMANN.COM 35 PAGE | 3 (DELHI) IN TULSI TRACOM PRIVATE LIMITED VS CIT AND ALSO THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN 147 ITR 379 IN CIT VS GIRDHARI LAL. THEREFORE, IT IS SUBMITTED THAT THE ISSUE IS SQUARE LY COVERED IN FAVOUR OF THE ASSESSEE HAS NO NOTICE HAS BEEN SERVED ON THE A SSESSEE BEFORE PASSING ANY ORDER UNDER SECTION 263 OF THE INCOME T AX ACT. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONTESTED THE ARGUMENT OF THE LEARNED AUTHORISED REPRESENTATIVE A ND SUBMITTED THAT ASSESSEE HAS APPEARED BEFORE THE COMMISSIONER OF IN COME TAX IN THE PROCEEDINGS UNDER SECTION 263 OF THE INCOME TAX ACT AND THEREFORE NOW THE ASSESSEE CANNOT COMPLAIN THAT NO NOTICE HAS BEE N SERVED ON THE ASSESSEE. HE FURTHER PRESSED INTO SERVICE THE PROV ISIONS OF SECTION 292BB OF THE ACT AND STATED THAT WHERE AN ASSESSEE HAS AP PEARED IN ANY PROCEEDINGS OR COOPERATED IN ANY ENQUIRY RELATING T O AN ASSESSMENT OF REASSESSMENT, NOW IT IS NOT OPEN FOR THE ASSESSEE T O CHALLENGE THE SERVICE OF THE NOTICE. HE THEREFORE SUBMITTED THAT THE ISS UE IS NOT COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDICIAL PRECEDENTS C ITED BEFORE THE BENCH. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION A ND PERUSED THE ORDER OF THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX PASSED UNDER SECTION 263 OF THE INCOME TAX ACT. AS PER THE PARA STATED ABOVE OF THAT PARTICULAR ORDER. IT IS APPARENT THAT ASSESSEE HAS NOT BEEN S ERVED ANY NOTICE UNDER SECTION 263 OF THE INCOME TAX ACT. THEREFORE THE L EARNED PRINCIPAL COMMISSIONER OF INCOME TAX PASSED AN ORDER ON THE B ASIS OF MATERIAL AVAILABLE ON RECORD. THEREFORE, IT IS APPARENT THA T THE ISSUE HAS BEEN DECIDED BY THE LEARNED PRINCIPAL COMMISSIONER OF IN COME TAX ON THE BASIS OF THE INFORMATION AVAILABLE ON RECORD. WITHOUT GI VING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. AS THE ASSESSEE HAS NO T BEEN SERVED ANY NOTICE BEFORE PASSING OF THE ORDER UNDER SECTION 26 3 OF THE INCOME TAX ACT, NO OPPORTUNITY WAS AVAILABLE TO THE ASSESSEE T O REPRESENT HIS CASE. IN VIEW OF THIS, THE ORDER PASSED BY THE LEARNED PR INCIPAL COMMISSIONER OF INCOME TAX IS NOT SUSTAINABLE IN LAW. THE PROVISIO NS OF SECTION 263 OF THE INCOME TAX ACT CONTEMPLATES THAT AFTER GIVING THE A SSESSEE AN OPPORTUNITY OF BEING HEARD THE LEARNED PRINCIPAL COMMISSIONER O F INCOME TAX SHOULD HAVE PASSED THE IMPUGNED ORDER. IN THE CIRCUMSTANC ES AS THERE IS NO PAGE | 4 SERVICE OF NOTICE ON THE ASSESSEE DID NOT MEET THE REQUIREMENT OF OPPORTUNITY OF BEING HEARD AS PROVIDED UNDER SECTIO N 263 OF THE INCOME TAX ACT. IT IS MANDATORY FOR THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX, WHO PASSED THE ORDER UNDER SECTION 263 OF THE INCOME TAX ACT, OR TO HAVE BEEN FULLY SATISFIED THAT THE ADEQUATE OPPORTU NITY WAS GIVEN TO THE ASSESSEE TO CONTROVERT THE FACTS STATED IN THE NOTI CE UNDER SECTION 263 AND TO EXPLAIN THE CIRCUMSTANCES SURROUNDING SUCH F ACTS. THE SATISFACTION OF THE COMMISSIONER ON THIS COUNT COULD NOT HAVE BE EN ARRIVED AS THE PROCESS COMMENCING WITH THE ISSUE OF THE NOTICE UND ER SECTION 263: IN IN THE ORDER WAS COMPLETELY HURRIED AND WITHOUT FOLLOW ING THE MANDATORY REQUIREMENT OF SERVING A NOTICE ON THE ASSESSEE AND OPPORTUNITY OF BEING HEARD GIVEN TO THE ASSESSEE. IN VIEW OF THIS THERE IS NO DOUBT THAT THIS DOES NOT CONSTITUTE ANY OPPORTUNITY IN RESPECT OF N OTICE UNDER SECTION 263 OF THE INCOME TAX ACT. THE FACTS IN THE ORDER OF T HE HONBLE JURISDICTIONAL HIGH COURT IN 86 TAXMANN.COM 35 AND THE HONBLE RAJ ASTHAN HIGH COURT IN 147 ITR 379 SQUARELY COVERED THE ISSUE IN FAVOUR OF THE ASSESSEE. IN VIEW OF THIS, WE ARE UNABLE TO SUSTAIN THE ORDER PA SSED BY THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX UNDER SECTION 263 OF THE INCOME TAX ACT. HENCE, SAME IS QUASHED. ACCORDINGLY, GROU ND NO. 1 OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. ACCORDINGLY ITA NO. 2388/DEL/2017 FILED BY THE ASSE SSEE FOR ASSESSMENT YEAR 2010-11 IS ALLOWED. 8. IN ITA NO. 2389/DEL/2017 FOR ASSESSMENT YEAR 2010-1 1 FILED BY MR ANKUSH SINGHAL AND ITA NO. 2390/DEL/2017 FOR ASSESS MENT YEAR 2010-11 FILED BY MR ANILKUMAR SINGHAL ARE HAVING THE SIMILA R FACTS, WHERE THE ASSESSEE HAS CHALLENGED THE ORDER PASSED BY THE LEA RNED PRINCIPAL COMMISSIONER OF INCOME TAX, GHAZIABAD PASSED UNDER SECTION 263 OF THE INCOME TAX ACT DATED 22/3/2017. THE FACTS RELATING TO THE ABOVE ORDER CLEARLY SHOWS THAT IN THESE CASES ALSO THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX HAS PASSED THE SIMILAR ORDER WITHOUT SERVING ANY NOTICE ON THE ASSESSES. THEREFORE, IN VIEW OF OUR DECISION IN ITA NO. 2388/DEL/2017, WE ALSO QUASH ORDERS PASSED BY THE LEARNED PRINCIPAL PAGE | 5 COMMISSIONER OF INCOME TAX UNDER CHALLENGE BEFORE U S IN ABOVE 2 APPEALS AND ALLOW GROUND NUMBER 1 OF THOSE APPEALS. 9. ACCORDINGLY, APPEALS FILED BY THE ASSESSEE IN BOTH THE ABOVE CASES IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/05/2019. SD/- SD/- (BEENA A PILLAI) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17/05/2019 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI PAGE | 6 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/ PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER