Chander Pal Singh, Ghaziabad V. ITO, Ward-1(2), Ghaziabad

ITA 2567/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 9590 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 24-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Application of stay; Cost of acquisition
• Section: 147; 69; 148; 54; 144; 80C; 142(1); 201; 143(2)

Judgement Text

1 ITA No. 2567/Del/2019 Chander Pal Singh, Ghaziabad IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘B’ NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER I.T.A. No. 2567/DEL/2019 (A.Y 2010-11) Chander Pal Singh, Chamber No. 239 Court, Raj Nagar, Ghaziabad, Uttar Pradesh – 201 002. PAN No. BPIPS0496C (APPELLANT) Vs. Income Tax Officer, Ward : 1 (2) Ghaziabad. (RESPONDENT) S. A No. 750/Del/2019 (In ITA No. 2567/Del/2019 A.Y 2010-11) Chander Pal Singh, Chamber No. 239 Court, Raj Nagar, Ghaziabad, Uttar Pradesh – 201 002. PAN No. BPIPS0496C (APPELLANT) Vs. Income Tax Officer, Ward : 1 (2) Ghaziabad. (RESPONDENT) Assessee by : Dr. Rakesh Gupta, Adv.; & Shri Somil Agarwal, Adv. Department by: Shri S. L. Anuragi, Sr. D. R.; Date of Hearing 29.09.2022 Date of Pronouncement 30.09.2022 2 ITA No. 2567/Del/2019 Chander Pal Singh, Ghaziabad ORDER PER YOGESH KUMAR U.S., JM This appeal is filed by the assessee for assessment year 2010-11 against the order of the ld. Commissioner of Income Tax (Appeals), Ghaziabad [hereinafter referred to CIT (Appeals), dated 31.08.2018. 2. The assessee has raised the following substantive grounds of appeal:- “1. The order passed by the AD. is in bad in law and against the cannon of taxation.. 2. The AD. has ignored of law and interpreted wrongly.. 3.The AD. has vitiated by the fact, finding and reached on assessment only on the presumption and assumptions and not based on any relevant evidences or circumstances. 4. That having regard to the facts and circumstances of the case, AD has erred in law and on facts that the reasons recorded for reopening of case U/s 147 indicate is that cash deposits aggregating to Rs 1,16,00,0001- have been made in the bank account of the assessee, but the mere fact that these deposits have been made in a bank account does not indicate that these deposits constitute an income which has escaped assessment. Therefore the reason of initiating the case proceedings U/s 147 is void-ab-initio reliance can be p laced in the case of "Bir Bahadur Singh Sijwali vs Assessee" I.T.A. No.: 3814/Del/11 where the Hon'ble ITAT Delhi held that " we are of the considered view that the reasons recorded by the 3 ITA No. 2567/Del/2019 Chander Pal Singh, Ghaziabad Assessing Officer (cash deposit), as set out earlier, were not sufficient reasons for reopening the assessment proceedings. We, therefore, quash the reassessment proceedings. As the reassessment itself is quashed, all other issues on merits of I.T.A. No.:3814/Del/11 Assessment year 2008-09 the additions, in the impugned assessment proceedings, are rendered academic and infructuous. 5. Addition of Rs 94,41,614/- a.The AO has mentioned in his order that the "Land sold was ancestral and its cost of acquisition as on 1.4.1981 is being taken @ Rs 15/- per Sq mtr as prevailing circle rate"(without rely on any supporting for determining the rate) since the land was ancestral then as per section 55 of income tax act 1961 indexed cost of acquisition of the actual cost or fair market value of land as on 1.4.1981, should be taken. 6. Addition of Rs 94,41,614/- a.That having regard to the facts and circumstances of the case, AO has erred in law and on facts in computing the amount of exemption claimed by assessee U/s 54 for the amount invested by him in acquisition of residential house property. 7. Addition of Rs 1,16,00,000/- a.That having regard to the facts and circumstances of the case, AO has erred in law and on facts in adding the cash deposit of Rs 1,16,00,000/- as unexplained cash deposit U/s 69. 8 . Addition of Rs 1,48,473/- 4 ITA No. 2567/Del/2019 Chander Pal Singh, Ghaziabad a.That having regard to the facts and circumstances of the case, AO has erred in law in making addition of Rs 1,48,473/-. 9. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts as we were deprived from the opportunity of being heard. 10.That in any case and any view of the matter, action of Ld. CIT(A) in not reversing the action of Ld. AO in making the impugned addition/ disallowance and framing the impugned assessment order which is contrary to law and facts, void ab initio, beyond jurisdiction, and without giving adequate opportunity of hearing, by recording incorrect facts and findings and the same is not sustainable on various legal and factual grounds. 11.That having regard to the facts and circumstances of the case, ld. CIT (A) has erred in law and on facts in not reversing the action of ld. AO in charging interest under section 234A, 234B, 234C and of the Income Tax Act, 1961.” 3. The assessee has also raised the following additional grounds of appeal:- “1. That having regard to the facts and circumstances of the case, assumption of jurisdiction in reopening the impugned assessment and passing the impugned order uls 1441147, is bad in law and against the facts and circumstances of the case and more so when statutory conditions as stipulated u/s 147 to 151 have not been complied with. 5 ITA No. 2567/Del/2019 Chander Pal Singh, Ghaziabad 2. That in any case and in any view of the matter, assumption of jurisdiction in reopening the assessment U/S 147, is bad in law and against the facts and circumstances of the case. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have quashed the impugned reassessment order passed by Ld. AO on the ground that no notice u/s 143(2) has been issued after the return filed in response to notice u/s 148 of the Act. Since the above grounds of appeal are purely legal, do not require fresh facts to be investigated and go to the root of the matter, it is prayed that the same may please be admitted in view of following judgments: CIT vs. Sinhgad Technical Education Society, (2017) 397 ITR 0344 (SC). . NTPC Ltd. vs. CIT, (1998) 229 ITR 0383, (SC). CIT vs. Sam Global Securities, (2014) 360 ITR 0682, (Del). VMT Spinning Co. Ltd. vs. CIT & Anr., (2016) 389 ITR 0326, (P & H). Inventors Industrial Corporation Ltd. vs. CIT , (1992) 194 ITR 0548 (Born).” 4. Brief facts of the case are that, the assessee is an advocate by profession. The proceedings u/s 147 of the Act were initiated for the reason that, unexpected cash deposit of Rs. 1,16,00,000/- in the saving bank account for Financial Year 2009-10 chargeable to tax had escaped assessment. As per the assessment order ‘no return of income filed by the assessee despite of the fact that various notices u/s 142(1) and 144 of the IT Act were issued’. Therefore, the 6 ITA No. 2567/Del/2019 Chander Pal Singh, Ghaziabad assessment being completed u/s 144 read with Section 147 of the Act on the basis of the material available on record by the A.O. The assessment order came to be passed on 29/11/2017 by computing the income of the assessee as under:- I Professional income as per computation of income filed vide letter dated 27.11.2017 1,35,000/- Ii Long term capital gains as computed above. 94,41,614/- iii Income from other sources: A-Unexplained cash deposit u/s 69 as discussed above B- As shown vide letter dated 27.11.2017 1,16,00,000/- Gross total income 1,48,473/- 2,13,25,087/- Less: Deduction u/s 80C claimed at Rs. 96,000/-, but not being allowed in absence of any proof. TOTAL INCOME 2,13,25,087/- 2,13,25,090/- 5. Aggrieved by the assessment order dated 29/11/2017, the assessee has preferred an appeal before the CIT (A). The Ld.CIT (A), on 31/08/2018, passed an ex-parte order by confirming the addition made by the Ld. A.O. 6. Aggrieved by the order dated 31/08/2018 passed by the Ld. CIT(A), the assessee has preferred the present appeal on the grounds/additional grounds mentioned above. 7. The Ld. Counsel for the assessee at the outset submitted that the Ld.CIT(A) ought to have quashed the impugned assessment order passed by the Ld. A.O on the ground that no notice u/s 143(2) of the Act has been issued after the return filed in response to notice u/s 148 of the Act. Further 7 ITA No. 2567/Del/2019 Chander Pal Singh, Ghaziabad submitted that, the Ld.CIT (A) has passed the order impugned in violation of principles of natural justice, wherein the Ld.CIT(A) has failed to provide proper opportunity to the assessee. Therefore, prayed for setting aside the matter to the file of Ld. A.O., for de-novo consideration of the matter including the additional grounds raised by the assessee before us regarding ‘none issuance of notice u/s 143(2) of the Act’. 8. The Ld. DR had no objection for remanding the matter to the file of the Ld. A.O. for considering all the issues afresh. By recording submissions of the Ld. AR and Ld. DR, without commenting anything on the merit of the case, we deem it fit to restore the matter to the file of Ld. A.O. to adjudicate all the issues involved in the present appeal including the issue as to whether a notice u/s 143(2) of the Act has been issued to the assessee or not. Accordingly, we allow the Ground No. 9 of the Assessee’s grounds of appeal for statistical purpose by remanding the matter to the file of A.O. for de-novo consideration as discussed above. 9. Since, we have restored the matter to the file of A.O. for de-novo consideration, all the other grounds requires no adjudication by us. Accordingly, the appeal of the assessee is partly allowed for statistical purpose. 10. In the result, the appeal filed by the assessee is partly allowed for statistical purpose. 11. In view of deciding the main appeal, the Stay Application filed along with the Appeal has rendered in-fructuous. Order pronounced in the open court on : 30/09/2022 . Sd/- Sd/- ( SHAMIM YAHYA ) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 30/09/2022 8 ITA No. 2567/Del/2019 Chander Pal Singh, Ghaziabad *R.N* SR. PS Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI