Sh. Umrao Singh, Faridabad V. ITO, Faridabad

ITA 2442/DEL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7808 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 09-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 21-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V R SONBHA DRA SENIOR
• Assessee Lawyers: SM MATHUR
• Keywords: Capital asset; Invalid notice; Opportunity of being heard; Cost of acquisition; Valuation report; Assessment record
• Section: 54B; 54F; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.2442/DEL./2012 (ASSESSMENT YEAR : 2007-08) SHRI UMRAO SINGH, VS. ITO, WARD 1 (5), S/O SHRI RADHEY LAL SINGH, FARIDABAD. DURUV FARM HOUSE, SEC 3, BALLABHGARH, FARIDABAD. (PAN : BJFPS4994A) ITA NO.2549/DEL./2012 (ASSESSMENT YEAR : 2007-08) ITO, WARD 1 (5), VS. SHRI UMRAO SINGH, FARIDABAD. S/O SHRI RADHEY LAL SINGH, DURUV FARM HOUSE, SEC 3, BALLABHGARH, FARIDABAD. (PAN : BJFPS4994A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.M. MATHUR, CA REVENUE BY : SHRI V.R. SONBHADRA, SENIOR DR DATE OF HEARING : 09.03.2016 DATE OF ORDER : 20.05.2016 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE AFORESAID APPEAL FILED BY THE ASSESSEE AS WELL AS CROSS APPEAL FILED BY THE REVENUE ARE BEING DISPOSED BY W AY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DISCUSSIO N. ITA NO.2442 & 2549/DEL./2012 2 2. APPELLANT, SHRI UMRAO SINGH (HEREINAFTER REFERRE D TO AS THE ASSESSEE), BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 07.03.2012 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS), FARIDABAD QUA THE ASSESSMENT YEAR 2007-08 ON THE GROUNDS INTER ALIA THAT :- 1.0. THAT ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [HERE IN A FTER REFERRED TO AS CIT (A)] HAS GROSSLY ERRED IN DISMISSAL OF AP PEAL BY THE APPELLANT THAT THE ASSESSMENT PROCEEDINGS II] S 148 OF THE ACT, INITIATED BY THE LD. AO IN RELATION TO DETERMINATIO N OF CAPITAL GAIN AND/ OR IMPOSITION OF TAX AND INTEREST WITH REFEREN CE THERETO, THE QUANTIFICATION OF TAXABLE INCOME, THE TAX LIABILITY , INCLUDING INTEREST AND PENALTY PROCEEDINGS, UNDER NORMAL PROVISIONS OF THE ACT IS VOID-AB-INITIO, ERRONEOUS, UNJUSTIFIED, WHOLLY ARBI TRARY AND BAD IN LAW, ON THE FOLLOWING GROUNDS: (EACH GROUNDS/FACTS IS PREJUDICE TO EACH OTHER):- 1.1 THAT THE NOTICE ISSUED U/ S 148 OF THE ACT WAS NOT SERVED TO THE ASSESSEE. 1.2 THAT WHILE SUPPLYING THE REASONS TO BELIEVE TO THE COUNSEL OF THE ASSESSEE, NO TIME LIMIT OR DUE DATE WAS PRES CRIBED FOR FILING RETURN OF INCOME OR FOR APPEARING BEFORE LD. AO. 1.3. THAT LD. AO HAS ERRED IN IGNORING THE PROCEDU RE OF ASSESSMENT BY NOT TAKING THE MATTER U/ S 143, INSTE AD OF 147. 2.0. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LD. CIT (A) WAS NOT JUSTIFIED IN DISALLOWING THE APPEAL OF THE APPELLAN T THAT THE ORDER PASSED U/S 147/144 DATED 18.12.2009 IS NOT A SPEAKI NG ORDER AND THE LD. AO HAS GROSSLY ERRED IN NOT CONSIDERING THE MERITS OF THE CASE. 3(A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LD. CIT (A) WAS NOT JUSTIFIED IN DISMISSAL THE APPEAL OF THE APPELLANT THAT WHEN ALL THE PRIMARY FACTS NECESSARY FOR ASSESSMENT WERE FULLY A ND TRULY DISCLOSED IN THE INCOME TAX RETURN, WHICH WAS DULY SUBMITTED WITH THE DEPARTMENT AND THERE WERE ALSO NO NEW FACTS WHI CH CAME TO THE POSSESSION OF THE LD. AO, THEN IT IS NO OPEN FOR TH E DEPARTMENT TO COMMENCE THE ASSESSMENT PROCEEDINGS U/S 148 OF THE ACT. ITA NO.2442 & 2549/DEL./2012 3 3(B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LD. CIT (A) WAS NOT JUSTIFIED IN DISMISSAL THE APPEAL OF THE APPELLANT THAT THAT THE ASSESSMENT PROCEEDINGS WERE COMPLETED WITHOUT TAKIN G INTO CONSIDERATION THE INFORMATION DISCLOSED IN THE RETU RN FILED WITH THE DEPARTMENT. 4.0 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LD. CIT (A) WAS NOT JUSTIFIED IN DISALLOWING THE APPEAL OF THE APPELLAN T THAT THE ASSESSMENT PROCEEDINGS WAS COMPLETED IN HASTE WITHO UT PROVIDING ANY REASONABLE OPPORTUNITY OF PERSONAL HEARING TO T HE APPELLANT TO EXPLAIN ITS CASE BEFORE PASSING THE EX-PARTE ORDER. 5.0. THAT ON THE FACT AND CIRCUMSTANCES OF THE CAS E AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LD. CIT (A) WAS NOT JUSTIFIED IN DISALLOWING THE CLAIM OF THE APPELLANT ON DEDUCT ION ON ACCOUNT OF EXPENSES ON TRANSFER OF LAND AMOUNTING TO RS.8,5 0,000/-. 6.0 THAT ON THE FACT AND, CIRCUMSTANCES OF THE CAS E AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LD. CIT (A) WAS NOT JUSTIFIED IN DISALLOWING THE CLAIM OF THE APPELLANT ON DEDUCT ION ON ACCOUNT OF INDEXED COST OF ACQUISITION AND IMPROVEMENT AMOU NTING TO RS.61,90,690/ - OUT OF THE TOTAL CLAIM OF THE APPEL LANT OF RS.66,38,684/-. 7.0 THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LD. CIT (A) WAS NOT JUSTIFIED IN DISALLOWING THE CLAIM OF THE APPELLANT ON DEDUCT ION ON ACCOUNT OF INVESTMENT IN CONSTRUCTION OF NEWLY RESIDENTIAL HOUSE AMOUNTING TO RS.31,72,879/- OUT OF THE TOTAL CLAIM OF THE APP ELLANT OF RS.1,56,72,879/- U/ S 54F OF THE ACT. 8.0 THAT THE APPELLANT CRAVES LEAVE, TO ADD, TO AM END, TO MODIFY, TO RESCIND, SUPPLEMENT OR ALTER ANY GROUND STATED HEREIN ABOVE EITHER BEFORE OR AT THE TIME OF HEARING OF TH E APPEAL. GROUNDS RAISED BY THE REVENUE IN THE CROSS APPEAL : 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN ALLOWING TH E DEDUCTION OF RS.4,47,994/- FOR INDEXED COST OF ACQUISITION WHILE COMPUTING THE LTCG EVEN WHEN NO CLAIM WAS MADE BY THE ASSESSEE TH OUGH MORE THAN SUFFICIENT OPPORTUNITY WAS GIVEN AND THERE IS NO PROVISION IN THE INCOME TAX ACT AS TO ALLOW THE DEDUCTION/EXEMPT ION WHICH WAS NOT CLAIMED IN THE RETURN OF INCOME AS HELD BY THE HON'BLE APEX COURT IN THE CASE OF GOETZE INDIA LTD VS CIT ( 284 ITR 323) (SC). SECONDLY, THE LAND FOR WHICH BENEFIT OF INDEX ED COST -OF ITA NO.2442 & 2549/DEL./2012 4 ACQUISITION HAS BEEN CLAIMED IS NOT THE SAME WHICH HAS BEEN SOLD AS THE MURABBA, KHATONI AND KHEWAT NOS ARE DISTINCT .' 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE EA SE, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN ALLOWING TH E DEDUCTION OF RS.48,78,450/- U/S 54B EVEN WHEN NO CLAIM WAS MADE BY THE ASSESSEE THOUGH MORE THAN SUFFICIENT OPPORTUNITY WA S GIVEN AND THERE IS NO PROVISION IN THE INCOME TAX ACT AS TO A LLOW THE DEDUCTION/ EXEMPTION WHICH WAS NOT CLAIMED IN THE R ETURN OF INCOME AS HELD BY THE HON'BLE APEX COURT IN THE CAS E OF GOETZE INDIA LTD VS CIT (284 ITR 323) (SC).' 3. 'THAT LD. CIT(A) HAS ALLOWED DEDUCTION OF RS.48, 78,450/- U/S 54B OF THE ACT ON THE RATIO OF THE DECISION OF HON'BLE P&H HIGH COURT IN THE CASE OF JAGRITI AGGARWAL (2011) 1 5 TAXMANN 146), 339 ITR 610. THE FACTS IN THE PRESENT CASE AR E QUITE DISSIMILAR TO THE FACTS OF THE CASE RELIED UPON BY THE LD. CIT(A) AS IN THE CASE OF JAGRITI AGGARWAL THE RETURN WAS FILE D BY THE ASSESSEE BUT IN THE PRESENT CASE THE ASSESSEE NEVER FILED HI S RETURN OF INCOME.' 4. 'THAT LD. CIT(A) HAS ALLOWED DEDUCTION U/S 54B O F THE ACT ON THE INVESTMENT MADE IN PURCHASE OF RESIDENTIAL L AND AS THE LAND MEASURING 960 SQUARE YARDS PURCHASED FOR RS.19,96,8 00/- (INCLUDING REGISTRATION CHARGES) IS RESIDENTIAL LAN D AS CERTIFIED BY THE SUB REGISTRAR, PALWAL ON THE REGISTERED SALE DE ED AND NOT AGRICULTURAL LAND AS CLAIMED BY THE ASSESSEE AND AL LOWED BY THE LD. CIT(A). HENCE, DEDUCTION U/S 54B IS NOT AVAILABLE F OR THIS INVESTMENT.' 5. 'THAT LD. CIT(A) HAS ALLOWED DEDUCTION U/S 54B O F THE ACT EVEN WHEN THE SAID LAND HAS BEEN PURCHASED AFTER TH E DUE DATE OF FILING OF RETURN AS PRESCRIBED U/S 139(1) OF THE AC T WITHOUT DEPOSITING THE SALE CONSIDERATION IN CAPITAL GAIN A CCOUNT SCHEME AS LAID DOWN U/S 54B(2) OF THE ACT.' 6. 'THAT LD. C!T(A) HAS ALLOWED DEDUCTION U/S 54B O F THE ACT EVEN WHEN THE OTHER INVESTMENT IN ENTIRE AGRICULTUR AL LAND HAS BEEN MADE IN THE NAME OF ASSESSEE'S WIFE SMT. BALA DEVI, THEREFORE THE ASSESSEE IS NOT ELIGIBLE TO CLAIM ANY DEDUCTION U/S 54B OF THE ACT.' 7. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN ALLOWING TH E DEDUCTION OF RS.1.25 CRORES U/S 54F ON THE BASIS OF ESTIMATION O NLY. LD. CIT(A) HAS HELD THAT 'HOWEVER, SINCE THE APPELLANT HAS NOT FURNISHED BILLS IN SUPPORT OF ENTIRE INVESTMENT AND IT CANNOT BE IN FERRED THAT THE AMOUNT WITHDRAWN FROM THE BANK ACCOUNT WAS INVESTED IN CONSTRUCTION ONLY, I DEEM IT FAIR TO ESTIMATE THE I NVESTMENT OF RS.1.25 CRORES IN THE CONSTRUCTION. THIS OBSERVATIO N OF LD. CIT(A) IS WITHOUT ANY CONCRETE EVIDENCE SUCH AS PROOF OF O WNERSHIP OF THE ITA NO.2442 & 2549/DEL./2012 5 PLOT ON WHICH CONSTRUCTION MADE, COPY OF APPROVED C ONSTRUCTION MAP/PLAN OF THE NEW HOUSE, COMPLETION CERTIFICATE, COMPLETE BILLS SUPPORTING THE CLAIM OF INVESTMENT IN CONSTRUCTION OF NEW RESIDENTIAL HOUSE ETC. IN ABSENCE OF THESE, IT IS N OT VERIFIABLE AS WHEN THE CONSTRUCTION WAS COMPLETED AND HOW MUCH IN VESTMENT WAS MADE.' 8. 'THAT THE VALUATION REPORT ON THE BASIS OF WHICH LD. CIT(A) HAS ESTIMATED THE INVESTMENT IN CONSTRUCTION IS FRO M A PRIVATE ARCHITECT AND NOT FROM AN APPROVED ARCHITECT. FURT HER, THE ARCHITECT HAS CERTIFIED THAT THE CONSTRUCTED BUILDING IS A FA RM HOUSE AND NOT A RESIDENTIAL HOUSE .. THE INTENT OF THE LEGISLATURE BEHIND EXEMPTION U/S 54F IS ONLY TO SATISFY THE HOUSING NEEDS OF THE GENERAL PUBLIC AND NOT FOR THE FARM HOUSES FOR LEISURE OF THE ASSE SSEE.' 9. 'THAT LD. CIT(A) HAS ALLOWED DEDUCTION U/S 54F O F THE ACT EVEN WHEN THERE IS NO EVIDENCE AS TO VERIFY WHETHER IT IS ONLY ONE HOUSE AND NOT THE SECOND OR THIRD HOUSE OF THE ASSE SSEE TO VERIFY THE CLAIM OF THE ASSESSEE AS PER PROVISIONS OF SECT ION 54F OF THE ACT.' 10. 'THAT THE APPELLANT CRAVES FOR THE PERMISSION T O ADD, DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIM E OF HEARING OF APPEAL.' 3. BRIEFLY STATED THE FACTS OF THIS CASE ARE : ON T HE BASIS OF INFORMATION SUPPLIED BY DIRECTOR OF INCOME-TAX (INV .), IT IS NOTICED THAT FARMERS OF FARIDABAD HAS NOT PAID CAPITAL GAIN TAX ON ACCOUNT OF TRANSFER OF LAND TO BPTP LIMITED AND ITS GROUP C ONCERN AND AS PER REGISTRATION CERTIFICATE NO.28/R.C. DATED 13.02 .1990 ISSUED BY REGISTRAR, BALLABHGARH, ASSESSEE HAS RECEIVED SALE CONSIDERATION OF HIS LAND TO THE TUNE OF RS.2,24,87,500/- FROM M/S. SUPER BELTS PVT. LTD., M-11, MIDDLE CIRCLE, CONNAUGHT CIRCLE, NEW DE LHI AND HAS NOT DECLARED HIS RETURN OF INCOME DECLARING THE SAI D CAPITAL GAIN. SO, THE ASSESSEE HAS UNDISCLOSED INCOME OF RS.2,24, 87,500/- WHICH ITA NO.2442 & 2549/DEL./2012 6 HAS ESCAPED ASSESSMENT UNDER SECTION 147 OF THE INC OME-TAX ACT, 1961 (HEREINAFTER THE ACT). AFTER RECORDING THE REASONS, NOTICE U/S 148 DATED 13.03.2009 WAS SENT THROUGH POST TO T HE ASSESSEE, BUT IN RESPONSE THERETO, THE ASSESSEE HAS NOT FIELD HIS RETURN OF INCOME. ON REQUEST OF THE COUNSEL FOR ASSESSEE, THE COPY O F REASONS FOR INITIATING PROCEEDINGS U/S 148 WAS SUPPLIED TO HIM. SHRI SHYAM SUNDER MANGLA, CA ATTENDED THE PROCEEDINGS WHO WAS ISSUED SHOW-CAUSE NOTICE AS TO WHY AMOUNT OF RS.2,24,87,50 0/- BE NOT ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE ASS ESSEE WAS CALLED UPON TO FURNISH NECESSARY DOCUMENTS ON 18.12.2009 B UT NONE APPEARED ON BEHALF OF HIM NOR FILED ANY WRITTEN REP LY. CONSEQUENTLY, THE AO CAME TO THE CONCLUSION THAT TH E ASSESSEE HAS RECEIVED THE AMOUNT OF RS.2,24,87,500/- ON ACCOUNT OF SALE OF LAND TO M/S. GREEN VALLEY HOUSING & DEVELOPMENT PVT. LTD . M-11, MIDDLE CIRCLE, CONNAUGHT CIRCLE, NEW DELHI. HENCE, ADDITION OF RS.2,24,87,500/- IS MADE ON ACCOUNT OF LONG TERM CA PITAL GAIN. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT (A) WHO HAS PARTLY ALLOWED THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PR ESENT APPEAL. 5. AT THE SAME TIME, THE REVENUE FEELING AGGRIEVED WITH THE IMPUGNED ORDER ALLOWING DEDUCTIONS OF RS.4,47,994/- FOR INDEX COST OF ACQUISITION WHILE COMPUTING LONG TERM CAPIT AL GAIN, ITA NO.2442 & 2549/DEL./2012 7 ALLOWING DEDUCTION OF RS.48,78,450/- U/S 54B AND AL LOWING THE DEDUCTION OF RS.1.25 CRORES U/S 54F ON THE BASIS OF ESTIMATION ONLY, FILED THE PRESENT CROSS APPEAL. 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. DURING THE APPELLATE PROCEEDINGS BEFORE THE BENC H, THE ASSESSEE HAS MOVED AN APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS TO THE FOLLOWING EFFECT :- 1) THAT NEITHER INTIMATION U/SEC. 143(1) NOR NOTIC E U/SEC. 143(2) OF THE INCOME TAX ACT, 1961 WERE ISSUED BY T HE LEARNED ASSESSING OFFICER ON THE RETURN OF INCOME FILED BY THE APPELLANT ON 08.01.2009 WHICH IS A MANDATORY REQUIREMENT IN THE LAW.' THIS RETURN OF INCOME HAD BEEN RELIED UPON BY THE HON'BL E COMMISSIONER OF INCOME TAX (APPEALS) IN DECIDING TH E APPEAL OF THE APPELLANT FOR THE YEAR UNDER APPEAL. THUS ORDER PASSED BY THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) BASED ON THIS RETURN IN THE ABSENCE OF ISSUANCE AND SERVICE OF NO TICE U/SEC. 143(2) OF THE ACT IS NON-EST IN LAW. 2) THAT THE NOTICE ALLEGED TO HAVE BEEN ISSUED SEC. 143(2) OF THE ACT DATED 14.12.2009 FIXING THE DATE OF HEARING FOR 18.12.2009 IS NOT VALID IN LAW SINCE:- I) AT THE TIME OF ISSUANCE OF SAID NOTICE, HE HAD N O RETURN OF INCOME WAS AVAILABLE IN THE ASSESSMENT RECORD OF TH E APPELLANT. II) IF THE SAID NOTICE IS ISSUED ON THE BASIS OF R ETURN OF INCOME FILED BY THE APPELLANT ON 08.01.2009, THEN AS PER T HE PROVISO TO SECTION 143(2) IS BARRED BY LIMITATION. 8. IN THE FACE OF THE ADMITTED FACT THAT ASSESSMENT ORDER DATED 18.12.2008 WAS PASSED IN THIS CASE U/S 147/144 OF T HE ACT, NO ITA NO.2442 & 2549/DEL./2012 8 NOTICE U/S 143(2) OF THE ACT WAS REQUIRED TO BE ISS UED BY THE AO. SO, IN VIEW OF THE MATTER, APPLICATION SEEKING INCO RPORATION OF THE ADDITIONAL GROUND AS TO NON-ISSUANCE/INVALID NOTICE U/S 143(2) OF THE ACT BY THE AO IS NOT MAINTAINABLE, HENCE HEREBY DISMISSED. 9. THE LD. AR FOR THE ASSESSEE CHALLENGING THE IMPU GNED ORDER CONTENDED INTER ALIA THAT LD. CIT (A) HAS ERRED IN RETURNING THE FINDINGS THAT THE RETURN OF INCOME FILED BY THE ASS ESSEE WITH INCOME-TAX OFFICER, WARD 2(4), FARIDABAD ON 08.01.2 009 IS INVALID AS HE HAS NO JURISDICTION TO ENTERTAIN THE SAME; TH AT THE AO HAS ERRED IN REOPENING THE ASSESSMENT U/S 148 WITHOUT S ERVICE OF NOTICE AND WITHOUT EXAMINING THE RETURN FILED BY THE ASSES SEE ON 08.01.2009; THAT NOTICE U/S 148 OF THE ACT WAS NEVE R SERVED UPON THE ASSESSEE; THAT DURING THE ASSESSMENT PROCEEDING S, THE ASSESSEE SOUGHT ONE MONTH TIME TO FILE THE REQUISITE DOCUMEN TS BUT THE AO WITHOUT PROVIDING OPPORTUNITY OF BEING HEARD COMPLE TED THE ASSESSMENT WITHIN FOUR DAYS BY CONDUCTING THE EX-PA RTE PROCEEDINGS. 10. FIRST CONTENTION RAISED BY LD. AR THAT CIT (A) HAS ERRED IN RETURNING FINDINGS THAT THE RETURN OF INCOME FILED BY THE ASSESSEE WITH INCOME-TAX OFFICER, WARD 2(4), FARIDABAD ON 08 .01.2009 IS NON-EST AND INVALID AS HE HAS NO JURISDICTION TO EN TERTAIN THE SAME, IS SUSTAINABLE WHEN EXAMINED IN THE LIGHT OF THE FI NDINGS RETURNED ITA NO.2442 & 2549/DEL./2012 9 BY THE LD. CIT (A) IN PARA 6 AT PAGE 45 OF THE IMPU GNED ORDER WHICH IS REPRODUCED FOR READY REFERENCE AS UNDER :- IT IS CORRECT THAT THE ASSESSEE FILED HIS RETURN OF INCOME BUT THE SAID RETURN WAS FILED WITH INCOME TA X OFFICER, WARD 2 (4), FARIDABAD ON 08.01.2009 WHEREA S THE JURISDICTION OVER THE CASE OF ASSESSEE VESTED W ITH INCOME TAX OFFICER, WARD 1 (5), FARIDABAD. HENCE, THE RETURN FILED WITH WRONG JURSIDCITION HAS TO BE TREATED AS NON-EST, INVALID IN THE EYE OF LAW AND N O COGNIZANCE OF SAME CAN BE TAKEN. CONSEQUENTLY, THE CONTENTIONS RAISED THAT ALL PRIMARY FACTS NECESSARY FOR ASSESSMENT WERE FULLY AND TRULY DISCLOSED IN THE RETURN.. 11. WHEN UNDISPUTEDLY THE ASSESSEE HAS FILED THE RE TURN OF INCOME QUA THE ASSESSMENT YEAR 2007-08 ON 08.01.200 9 WITH INCOME-TAX OFFICER, WARD 2 (4), FARIDABAD, THOUGH IT WAS REQUIRED TO BE FILED WITH ITO, WARD 1 (5), FARIDA BAD, THE CIT (A) WAS UNDER LEGAL OBLIGATION TO PROVIDE AN OP PORTUNITY OF BEING HEARD TO THE ASSESSEE BY FILING RETURN OF INC OME WITH THE COMPETENT REVENUE AUTHORITY OR HE WOULD HAVE TRANSF ERRED THE RETURN OF INCOME DATED 08.01.2009 TO THE COMPETENT REVENUE AUTHORITY FOR FURTHER NECESSARY ACTION. AO IN T HE ASSESSMENT ORDER HAS PROCEEDED ON THE PREMISE THAT NO RETU RN OF INCOME WAS FILED BY THE ASSESSEE AND PROCEEDED TO REOP EN THE ASSESSMENT U/S 148 OF THE ACT. SO, THE IMPUGNED ORDER PASSED BY THE CIT(A) BY TREATING THE INCOME-TAX RETURN FIL ED BY THE ASSESSEE, THOUGH WITH ITO HAVING NO JURISDICTI ON AS NON EST ITA NO.2442 & 2549/DEL./2012 10 AND INVALID IS NOT SUSTAINABLE IN THE EYES OF LAW B ECAUSE CIT (A) BEING A QUASI-JUDICIAL AUTHORITY HAS THE POWER TO T RANSFER THE RETURN OF INCOME WRONGLY FILED DUE TO JURISDICTIONAL ERROR TO THE COMPETENT REVENUE AUTHORITY HAVING JURISDICTION OVER THE ASSE SSEE TO EXAMINE THE SAME. SO, IN VIEW OF THE MATTER, THE IMPUGNED ORDER IS NOT SUSTAINABLE IN THE EYES OF LAW. 12. SO FAR AS, CONTENTION RAISED BY THE LD. AR FOR THE ASSESSEE THAT NO NOTICE HAS BEEN ISSUED TO THE ASSESSEE BY T HE AO U/S 143(1)/143(2) IS CONCERNED, THE SAME IS NOT SUSTAIN ABLE BECAUSE IN CASE THE ASSESSMENT IS COMPLETED U/S 144 OF THE ACT , AS IN THE INSTANT CASE NO NOTICE IS REQUIRED TO BE ISSUED U/ SS 143(1)/ 143(2). 13. THE NEXT CONTENTION RAISED BY THE LD. AR FOR TH E ASSESSEE THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SOU GHT ONE MONTH TIME TO FILE THE REQUISITE DOCUMENTS BUT THE AO WIT HOUT PROVIDING OPPORTUNITY OF BEING HEARD COMPLETED THE ASSESSMENT WITHIN FOUR DAYS BY CONDUCTING THE EX-PARTE PROCEEDINGS, IS ALS O SUSTAINABLE BECAUSE WHEN THE ASSESSEE HAS UNDISPUTEDLY TAKEN SP ECIFIC GROUNDS NO.4(A) AND 4 (B) BEFORE LD. CIT (A) THAT THE ASSES SEE HAS NOT BEEN PROVIDED WITH AN ADEQUATE OPPORTUNITY OF BEING HEAR D BY BRINGING ON RECORD THE REQUISITE DOCUMENT SPECIFICALLY CALLE D FOR BY THE AO HIMSELF, THE CIT (A) WAS REQUIRED TO PROVIDE ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SO, FROM THE BARE PERUSAL OF THE ITA NO.2442 & 2549/DEL./2012 11 ASSESSMENT ORDER AND IMPUGNED ORDER PASSED BY LD. C IT (A), IT STANDS PROVED THAT THE ENTIRE EXERCISE TO COMPLETE THE ASSESSMENT U/S 147/144 HAS BEEN MADE IN HASTE WITHOUT PROVIDIN G ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, THUS TH E LD. CIT (A) HAS ALSO FAILED TO DECIDE THIS ISSUE JUDICIOUSLY. 14. EVEN OTHERWISE, THE AO HAS PROCEEDED TO COMPLET E THE ASSESSMENT IN HASTE DESPITE CALLING INFORMATION FRO M THE ASSESSEE, FOR WHICH HE HAS SOUGHT ONE MONTH PERIOD, WITHIN A PERIOD OF FOUR DAYS, BY TREATING THE ENTIRE SALE PROCEEDS OF RS.2, 24,87,500/- AS INCOME OF THE ASSESSEE, WHICH IS EX-FACIE NOT TENAB LE AND ALSO PROVES THE NON-APPLICATION OF MIND. 15. MOREOVER, HAD THE ASSESSEE BEEN PROVIDED WITH A N OPPORTUNITY TO FILE THE DOCUMENTS AS REQUIRED BY TH E AO, HE WOULD HAVE BROUGHT ON RECORD THE FACTUM OF FILING OF THE RETURN OF INCOME WRONGLY WITH INCOME-TAX OFFICER, WARD 2 (4), FARIDA BAD ON 08.01.2009 AND OTHER DOCUMENTS IN HIS DEFENCE, THE IMPUGNED ASSESSMENT ORDER WOULD NOT HAVE BEEN PASSED; 16. SO, IN THE BACKDROP OF THE AFORESAID FACTS AND CIRCUMSTANCES OF THIS CASE, WE ARE OF THE CONSIDERED VIEW THAT WI THOUT GOING INTO THE MERITS OF THE CASE, PROPER OPPORTUNITY OF BEING HEARD IS REQUIRED TO BE PROVIDED TO THE ASSESSEE BY THE AO, WHO BEING A QUASI JUDICIAL AUTHORITY WAS UNDER OBLIGATION TO FOLLOW T HE RULE OF NATURAL ITA NO.2442 & 2549/DEL./2012 12 JUSTICE. RESULTANTLY, CROSS APPEAL FILED BY THE RE VENUE IS ALSO NOT SUSTAINABLE BECAUSE WHEN THE ASSESSMENT ORDER IS NO T SUSTAINABLE IN THE EYES OF LAW, THE IMPUGNED ORDER PASSED BY THE C IT (A) IS ALSO A NULLITY. CONSEQUENTLY, PRESENT APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES AND CROSS A PPEAL FILED BY THE REVENUE IS HEREBY DISMISSED HAVING BEEN BECOME INFR UCTUOUS. THE FILE IS ORDERED TO BE RESTORED TO THE AO TO DECIDE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. ORDER PRONOUNCED IN OPEN COURT ON THIS 20 TH DAY OF MAY, 2016. SD/- SD/- (J.S. REDDY) (KULDIP SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 20 TH DAY OF MAY, 2016 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT, FARIDABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.