Appeal Details
Counselvise Citation
[2019] 112 COUNSELVISE.COM (IT) 6927 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
10 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-03-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2010-2011
Appeal Filed On
16-04-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA NO.2621/DEL/2018 ASSESSMENT YEAR: 2010-11 STAY APPLICATION NO.48/DEL/2019 (ITA NO.2621/DEL/2018) ASSESSMENT YEAR: 2010-11 BUNIYAD DEVELOPERS PVT. LTD., A-54, NARAINA INDUSTRIAL AREA, PHASE I, NEW DELHI. PAN: AAACB1149A VS ITO, WARD-5(2), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJIV SAXENA & SHRI R.P. MALL, ADVOCATE, REVENUE BY : MS ASHIMA NEB, SR. DR DATE OF HEARING : 18.02.2019 DATE OF PRONOUNCEMENT : 01.03.2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 23 RD MARCH, 2018 OF THE CIT(A)-35, NEW DELHI, RELATING TO ASSES SMENT YEAR 2010-11. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A COMPANY AND FILED ITS RETURN OF INCOME ON 9 TH AUGUST, 2011 DECLARING A LOSS OF RS.8,06,064/-. T HE CASE OF THE ASSESSEE WAS REOPENED BY ISSUE OF NOTICE U/S 148 OF THE ACT ON 22 ND MARCH, 2016. ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 2 HOWEVER, THERE WAS NO COMPLIANCE TO THIS NOTICE TIL L THE DATE OF PASSING OF THE ORDER. IN THE REASONS RECORDED, IT IS MENTIONED THAT INFORMAT ION WAS RECEIVED FROM THE INVESTIGATION WING THAT DURING THE COURSE OF SEARCH AND SEIZURE OPERATION IN THE CASE OF JAIN BROTHERS (SHRI VIRENDERA JAIN AND SHRI SURI NDER KUMAR JAIN) AND THEIR GROUP CONCERNS ON 14 TH SEPTEMBER, 2010, CERTAIN MATERIALS WERE FOUND AND SEIZED WHICH CONTAIN INCRIMINATING INFORMATION SUCH AS GIVING AC COMMODATION ENTRIES BY THE GROUP CONCERNS TO THE VARIOUS ENTITIES. THE NAME OF THE ASSESSEE ALSO APPEARS IN THE LIST OF BENEFICIARIES WHO HAVE TAKEN ACCOMMODATION ENTRIES. AS PER SUCH INFORMATION, THE ASSESSEE HAD RECEIVED ACCOMMODATION ENTRY OF RS.75, 00,000/-. THE ASSESSING OFFICER ACCORDINGLY RECORDED THE REASONS AND ISSUED NOTICE U/S 148 OF THE ACT. SUBSEQUENTLY, NOTICE U/S 142(1) OF THE ACT WAS ALSO ISSUED. HOWE VER, THERE WAS NO COMPLIANCE AGAIN. SUBSEQUENTLY, THE ASSESSING OFFICER COULD T ELEPHONICALLY CONTACT THE DIRECTORS OF THE ASSESSEE COMPANY AND ASKED THEM TO ATTEND TH E ONGOING PROCEEDINGS. 3. THE COUNSEL FOR THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER AND FILED A LETTER DATED 7 TH DECEMBER, 2016 OBJECTING TO THE VALIDITY OF NOTICE ISSUED U/S 148 ON THE GROUND THAT THE ASSESSEE COMPANY I.E., M/S IEC SPRI NKLER INDUSTRIES (INDIA) PVT. LTD. HAD AMALGAMATED WITH M/S BUNIYAD DEVELOPERS (P) LTD . AS PER ORDER OF THE HON'BLE HIGH COURT OF DELHI AND HAD CEASED TO EXIST ON THE DATE OF ISSUE OF NOTICE U/S 148 AND, THEREFORE, THE NOTICE SHOULD BE TREATED AS INVALID. THE COPY OF THE ORDER OF THE HIGH COURT WAS ALSO FURNISHED. ACCORDING TO THE ASSESSI NG OFFICER, THERE WAS NO EFFECTIVE ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 3 DATE OF AMALGAMATION WHICH IS APPARENT IN THE ORDER . THE ASSESSING OFFICER, THEREFORE, DISPOSED OF THE OBJECTIONS FILED BY THE ASSESSEE BY MENTIONING AS UNDER:- 1. TILL THE DATE OF ISSUE OF NOTICE U/S 148, IN QUESTI ON, NO INTIMATION/INFORMATION WAS PROVIDED TO THIS OFFICE REGARDING THE AMALGAMAT ION OF M/S IEC SPRINKLER INDUSTRIES (INDIA) PVT. LTD. WITH M/S BUNIYAD DEVELOPERS (P) L TD. 2. NO APPLICATION FOR SURRENDER OF PAN-AAACI6589D, M/ S 1EC SPRINKLER INDUSTRIES (INDIA) PVT. LTD. HAS BEEN RECEIVED BY T HIS OFFICE. MOREOVER, EVEN AS ON DATE THE PAN-AAACI6589D HAS ALLOTTED TO M/S IEC SPRINKLE R INDUSTRIES (INDIA) PVT. LTD. 3. AS PER THE AMALGAMATION ORDER PASSED BY THE HON'BL E HIGH COURT (DELHI) NO EFFECTIVE DATE OF AMALGAMATION HAS BEEN PROVIDED. 4. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSME NT PROCEEDINGS ASKED THE ASSESSEE TO SUBSTANTIATE THE AMOUNT OF RS.75 LAKHS RECEIVED ON ACCOUNT OF ACCOMMODATION ENTRIES. SINCE THERE WAS NO PROPER C OMPLIANCE AND THE ASSESSMENT WAS GETTING BARRED BY LIMITATION, THE ASSESSING OFF ICER, INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT ADDED AN AMOUNT OF RS.75 LAKH S TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSING OFFICER FURTHER MADE ADDIT ION OF RS.1,31,250/- BEING THE COMMISSION @ 1.75% REQUIRED FOR ARRANGING THE ABOVE ENTRY OF RS.75 LAKHS. THUS, IN EFFECT, THE ASSESSING OFFICER MADE AN ADDITION OF R S.76,31,250/- AND DETERMINED THE TOTAL INCOME AT RS.76,22,586/- AFTER SETTING OFF TH E LOSS OF RS.8,664/- DECLARED IN THE RETURN OF INCOME FILED. ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 4 5. BEFORE THE CIT(A), THE ASSESSEE, APART FROM CHALLEN GING THE ADDITION ON MERIT, ALSO CHALLENGED THE VALIDITY OF THE REASSESSMENT PR OCEEDINGS ON THE GROUND THAT THE ASSESSMENT MADE ON THE ASSESSEE IS WITHOUT JURISDIC TION, ILLEGAL AND CONTRARY TO STATUTORY PROVISIONS. MANDATORY NOTICES UNDER THE P ROVISIONS OF THE IT ACT WERE NEITHER ISSUED NOR SERVED UPON THE ASSESSEE FOR COM PLETING THE ASSESSMENT. THE ASSESSMENT ORDER WAS MADE MERELY ON THE BASIS OF IN FORMATION RECEIVED FROM THE DIT (INVESTIGATION) WITHOUT INDEPENDENT APPLICATION OF MIND BY THE ASSESSING OFFICER. FURTHER, DESPITE BEING INFORMED ABOUT THE NON-EXIST ENCE OF THE ASSESSEE COMPANY, THE ASSESSING OFFICER ERRONEOUSLY AND WITHOUT SERVING A NOTICE U/S 143(2) OF THE ACT, FRAMED THE ORDER OF ASSESSMENT U/S 144/147 OF THE I T ACT. SINCE NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED AND THE ASSESSMENT HAS BEEN F RAMED ON A NON-EXISTENT COMPANY AND THE ASSESSING OFFICER HAD REOPENED THE ASSESSME NT ONLY ON THE BASIS OF INFORMATION RECEIVED FROM THE INVESTIGATION WING AN D NOT APPLIED HIS MIND, THEREFORE, IT WAS ARGUED THAT THE ENTIRE REASSESSMENT PROCEEDI NG IS VOID AB INITIO . IT WAS FURTHER SUBMITTED THAT THE ADDL. CIT AND PR. CIT WHILE GIVI NG APPROVAL HAD NOT APPLIED THEIR MINDS AND SIMPLY MENTIONED: YES, I AM SATISFIED A ND YES, IT IS A FIT CASE TO ISSUE NOTICE U/S 148. IT WAS ACCORDINGLY ARGUED THAT THE REASSESSMENT PROCEEDINGS NOT BEING IN ACCORDANCE WITH THE LAW SHOULD BE QUASHED. 5.1. SO FAR AS THE MERIT OF THE CASE IS CONCERNED, IT WA S ARGUED THAT THE ASSESSEE FILED THE REQUISITE DETAILS SUBSTANTIATING THE IDENTITY A ND CREDIT WORTHINESS OF THE INVESTORS AND THE GENUINENESS OF THE TRANSACTIONS. THEREFORE , THE ADDITION MADE BY THE ASSESSING OFFICER SHOULD BE DELETED. ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 5 6. HOWEVER, THE LD.CIT(A) WAS NOT SATISFIED WITH THE A RGUMENTS ADVANCED BY THE ASSESSEE AND UPHELD THE VALIDITY OF THE REASSESSMEN T PROCEEDINGS AS WELL AS THE ADDITION ON MERIT. AGGRIEVED WITH SUCH ORDER OF TH E CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL RAISING THE FOLLOWING GROUNDS:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING THE ORDER OF ASSESSI NG OFFICER WHICH WAS BAD IN LAW BECAUSE (A) IT WAS WITHOUT JURISDICTION ILLEGAL AND CONTRARY T O STATUTORY TO THE PROVISION OF THE INCOME TAX. (B) NOTICES U/S 148 AND 143(2) WERE NEITHER ISSUED IN THE NAME OF THE ASSESSEE NOR SERVED UPON THE ASSESSEE WITHIN STATUT ORY LIMITS BEFORE INITIATING OR COMPLETING THE ASSESSMENT WHICH WAS M ANDATORY FOR INITIATING OR COMPLETING THE ASSESSMENT. (C) THE ASSESSMENT PROCEEDINGS WERE INITIATED ON THE C OMPANY M/S IEC SPRINKLER INDUSTRIES (INDIA) PVT. LTD. WHICH WA S ALREADY AMALGAMATED W.E.F 01.04.2009 AND SO NON-EXISTENT AN D THE AO WAS DULY INFORMED ABOUT THE SAME. (D) THE ASSESSMENT WAS REOPENED MERELY ON THE BASIS OF INFORMATION RECEIVED FROM DIT(LNV.) WITHOUT APPLICATION OF MIND OR NECESSARY ENQUIRY IN ORDER TO FORM REASON TO BELIEVE FOR REOP ENING THE ASSESSMENT. 2. THAT LD. COMMISSIONER OF INCOME HAS ERRED IN LAW AS WELL AS FACTS IN NOT HOLDING THE ADDITION MADE BY THE AO AMOUNTING RS. 7 5,00,000/- INVESTED BY SHAREHOLDER SUBMITTING ALL THE REQUISITE DOCUMENTS AND RS. 1,31,250/- ON THE PRESUMPTIVE BASIS ARE BAD IN LAW BECAUSE (A) SHE HAS FAILED TO APPRECIATE THAT ALL THE SHARE CA PITAL WAS INVESTED THROUGH ACCOUNT PAYEE CHEQUES BY A COMPANY HAVING I TS CORPORATE ENTITY, THROUGH BOARD RESOLUTION, FILING ITRS, BANK STATEME NTS AND SHARES HAVE ALREADY BEEN ALLOTTED LONG BACK. (B) THE AO DID NOT MAKE ANY ENQUIRY EITHER FROM THE AS SESSEE OR FROM THE INVESTORS OR ANY OTHER PERSON IN ORDER TO ARRIVE AT CONCLUSION THAT THE INVESTMENT IS BOGUS. (C) THE ADDITIONS MADE BY THE AO WERE WITHOUT APPLICAT ION OF MIND AND MERELY ON THE BASIS OF INFORMATION FROM DIT(INV .) ON THE BEHEST OF THE SUPERIORS. ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 6 IT IS THEREFORE PRAYED THAT ASSESSMENT MADE BE QUAS HED BEING BAD IN LAW AND ADDITIONS MADE BE DELETED. 7. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLENGE D THE ORDER OF THE CIT(A). HE SUBMITTED THAT NO NOTICE U/S 143(2) WAS ISSUED A ND, THEREFORE, THE ENTIRE ASSESSMENT PROCEEDINGS SHOULD BE HELD AS ILLEGAL. ALTHOUGH SU CH ARGUMENT WAS SPECIFICALLY TAKEN BEFORE THE CIT(A), HOWEVER, THE ORDER OF THE CIT(A) IS SILENT ON THIS. SIMILARLY, WHEN THE NOTICE WAS ISSUED TO A NON-EXISTENT COMPANY AND WHEN IT WAS SPECIFICALLY BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER AND CIT(A), HOWEVER, THEY HAVE NOT CONSIDERED THE SAME IN THE LIGHT OF THE VARIOUS DECISIONS. TH E APPROVING AUTHORITIES HAVE ALSO GIVEN APPROVAL FOR REOPENING OF THE ASSESSMENT IN A MECHANICAL MANNER WITHOUT PROPER APPLICATION OF MIND. HE ACCORDINGLY SUBMITTED THAT THE ENTIRE REASSESSMENT PROCEEDINGS SHOULD BE HELD AS VOID AB INITIO . REFERRING TO THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. CHETAN GUPTA, REPORTED IN 382 ITR 613 HE SUBMITTED THAT WHERE THE ASSESSMENT WAS MADE ON THE COMPANY WITHOUT ISSUING NOTICE U/S 148 AND NO NOTICE WAS SERVED UPON THE ASSESSEE, IT WAS HELD THAT THE REASSESSMENT PROCEEDINGS WERE LIABLE TO BE QUASHED. REFERRING T O THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. MICRON STEELS PVT. LTD. REPORTED IN 373 ITR 386 (DEL) , HE SUBMITTED THAT THE ASSESSMENT COULD NOT BE MAD E ON THE COMPANY WHICH DOES NOT EXIST. SIMILAR VIEW HAS BEEN TAKEN IN THE CASE OF CIT VS. DIMENSION APPARELS PVT. LTD. REPORTED IN 52 TAXMANN.COM 356 AND M/S SPICE ENTERTAINMENT VS. CIT VIDE ITA NO.475 OF 2011, ORDER DATED 3 RD AUGUST, 2011 . REFERRING TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON REPORTED IN 321 ITR 362, HE ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 7 SUBMITTED THAT THE ASSESSMENT U/S 147 IS BAD IN LAW IF NO NOTICE U/S 143(2) OF THE ACT IS ISSUED AND SERVED ON THE ASSESSEE COMPANY. REFERRI NG TO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PCIT VS. G & G PHARMA INDIA LTD., REPORTED IN 384 ITR 147 AND THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S RKG INTERNATIONAL PVT. LTD. VS. ITO, ITA NO.101/DEL/2013 , HE SUBMITTED THAT THE ASSESSMENT U/S 147 CANNOT B E MADE IN ABSENCE OF TANGIBLE MATERIAL AND MERELY ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING. REFERRING TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF KISHINCHAND CHELLARAM VS. CIT, 125 ITR 713 (SC) AND THE DECISION IN THE CASE OF CIT VS. SVP BUILDERS (INDIA) LTD., REPORTED IN 238 TAXMAN 653, HE SUBMITTED THAT WHERE ASSESSMENT HAS BEEN MADE RELYING ON THE MATERIAL/EVIDENCE, BUT, NO OPPORTUNITY OF CROSS EXAMINATION WAS PROVIDED, THEN , ADDITION CANNOT BE MADE. HE, ACCORDINGLY SUBMITTED THAT THE ENTIRE REASSESSMENT PROCEEDINGS MADE BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A) NOT BEING IN ACCOR DANCE WITH THE LAW, SHOULD BE QUASHED. SO FAR AS THE MERIT OF THE CASE IS CONCER NED HE SUBMITTED THAT THE ASSESSEE HAD FILED NECESSARY DOCUMENTS TO SUBSTANTIATE THE I DENTITY AND CREDIT WORTHINESS OF THE SHARE APPLICANT AND THE GENUINENESS OF THE TRANSACT ION. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER U/S 68 WHICH HAS BEEN UPHE LD BY THE CIT(A) SHOULD BE DELETED. 8. THE LD. DR, ON THE OTHER HAND, RELIED ON THE ORDERS OF THE ASSESSING OFFICER AND CIT(A). SO FAR AS THE VALIDITY OF THE REASSESSMENT PROCEEDINGS ARE CONCERNED, SHE SUBMITTED THAT HON'BLE SUPREME COURT IN THE CASE OF SKY LIGHT HOSPITALITY LLP VS. ACIT, THE HON'BLE SUPREME COURT HAS HELD THAT WRONG NAME GIVEN IN THE NOTICE WAS ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 8 MERELY A CLERICAL ERROR WHICH COULD BE CORRECTED U/ S 292B OF THE IT ACT AND ACCORDINGLY THE SLP FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE HON'BLE DELHI HIGH COURT WAS DISMISSED. SHE ACCORDINGLY SUBMITTED THA T THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE COMPANY WAS NOT EXISTENT AND NOTICE WAS GIVEN TO THE WRONG COMPANY WILL NOT INVALIDATE THE REASSESSMENT PROCEE DINGS. SO FAR AS THE OTHER LIMBS OF HIS ARGUMENT CHALLENGING THE VALIDITY OF REASSESSME NT PROCEEDINGS ARE CONCERNED, SHE SUBMITTED THAT THE LD.CIT(A) HAS GIVEN A FINDING TH AT THE REOPENING OF THE ASSESSMENT WAS IN ACCORDANCE WITH THE LAW, THEREFORE, THE SAME SHOULD BE UPHELD. SO FAR AS THE ADDITION OF RS.76,31,250/- IS CONCERNED (I.E., THE AMOUNT OF RS.75 LAKHS AS SHARE APPLICATION MONEY AND RS.1,31,250/- TOWARDS COMMISS ION), SHE SUBMITTED THAT THE ASSESSEE COULD NOT DISCHARGE THE ONUS CAST ON IT IN TERMS OF SECTION 68 OF THE I.T. ACT, 1961 REGARDING THE IDENTITY AND CREDIT WORTHINESS O F THE SHARE APPLICANTS AND THE GENUINENESS OF THE TRANSACTION. THEREFORE, THE ADD ITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A) SHOULD BE UPHELD. 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CONS IDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ASSESSING OFFICER ON THE BAS IS OF THE INFORMATION RECEIVED FORM THE INVESTIGATION WING OF THE DEPARTMENT, REOPENED THE ASSESSMENT BY ISSUE OF NOTICE U/S 148. SINCE THERE WAS NO COMPLIANCE FROM THE SI DE OF THE ASSESSEE TO HIS SATISFACTION, THE ASSESSING OFFICER INVOKED THE PRO VISIONS OF SECTION 68 OF THE ACT AND MADE ADDITION OF RS.75 LAKHS BEING THE SHARE APPLIC ATION MONEY RECEIVED BY THE ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 9 ASSESSEE. IN THE PROCESS, HE ALSO MADE ADDITION OF RS.1,31,250/- BEING THE COMMISSION REQUIRED FOR ARRANGING SUCH ACCOMMODATION ENTRY @ 1 .75% OF THE TOTAL AMOUNT. WE FIND, THE ASSESSEE, APART FROM CHALLENGING THE ADDI TION ON MERIT, CHALLENGED THE VALIDITY OF REASSESSMENT PROCEEDINGS BEFORE THE CIT(A). HOW EVER, THERE WAS NO SUCCESS AND THE LD.CIT(A) DISMISSED THE APPEAL FILED BY THE ASS ESSEE ON BOTH COUNTS. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT ELABORATE ARGUMENTS WERE MADE AND WRITTEN SUBMISSION FILED WHICH APPEARS IN THE BODY OF THE ORDER OF THE CIT(A) WHEREIN THE ASSESSEE HAS CHALLENGED THE REASSESSMENT PROCEE DINGS ON VARIOUS GROUNDS. IT WAS ARGUED THAT NO NOTICE U/S 143(2) WAS ISSUED AND, TH EREFORE, THE ASSESSMENT ORDER PASSED U/S 147 HAS TO BE QUASHED. IT WAS ALSO ARGUED THAT THE NOTICE U/S 148 WAS ISSUED TO A NON-EXISTENT COMPANY. FURTHER, THE APPROVAL BY THE ADDL. CIT AND THE PR. CIT WERE GIVEN IN A VERY MECHANICAL MANNER. IT WAS ALSO ARG UED THAT THE REOPENING WAS MADE ON THE BASIS OF INFORMATION RECEIVED FROM THE INVES TIGATION WING AND THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND INDEPENDENTLY. HO WEVER, THE LD.CIT(A) IN A VERY CRYPTIC MANNER DISMISSED ALL THESE ARGUMENTS ADVANC ED BEFORE HIM AND UPHELD THE REASSESSMENT PROCEEDINGS. WE FIND SOME FORCE IN TH E ABOVE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE. A PERUSAL OF THE ORDER O F THE CIT(A) SHOWS ELABORATE ARGUMENTS ADVANCED BY THE ASSESSEE REGARDING THE VA LIDITY OF THE REASSESSMENT PROCEEDINGS ON VARIOUS GROUNDS AS WELL AS THE REOPE NING OF THE ASSESSMENT OF A NON- EXISTENT COMPANY SINCE THE EARLIER COMPANY HAD AMAL GAMATED WITH ANOTHER COMPANY. WE FIND THE ORDER OF THE CIT(A) IS VERY CRYPTIC AND HE HAS SIMPLY MENTIONED THAT THERE APPEARS TO BE NO VIOLATION OF JURISDICTION BY THE A SSESSING OFFICER AND THE ASSESSING ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 10 OFFICER HAS BOTH LEGALLY AND PROCEDURALLY FOLLOWED ALL THE PROCEDURES OF THE INCOME- TAX ACT. THE VARIOUS OTHER ASPECTS AS ARGUED BEFOR E THE CIT(A) CHALLENGING THE REASSESSMENT PROCEEDINGS REMAINED UNANSWERED OR HAV E NOT BEEN ADJUDICATED BY HIM IN THE LIGHT OF THE BINDING DECISIONS OF THE JURISD ICTIONAL HIGH COURT. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, WE ARE OF THE CO NSIDERED OPINION THAT THE MATTER REQUIRES A REVISIT TO THE FILE OF THE CIT(A) WHO SH ALL ADJUDICATE THE VARIOUS ISSUES RAISED BY THE ASSESSEE BEFORE HIM CHALLENGING THE V ALIDITY OF THE REASSESSMENT PROCEEDINGS SUCH AS: (A) NON-ISSUE OF NOTICE U/S 143(2); (B) RE-OPENING OF THE ASSESSMENT ON THE BASIS OF INFORM ATION RECEIVED FROM THE INVESTIGATION WING AND NO INDEPENDENT APPLICATION O F MIND BY THE ASSESSING OFFICER; (C) APPROVAL BY THE ADDL. CIT AND THE PR. CIT SIMPLY BY MENTIONING: YES, I AM SATISFIED AND YES, IT IS A FIT CASE TO ISSUE N OTICE U/S 148 WITHOUT GIVING THEIR OPINION IN THE LIGHT OF THE VARIOUS DE CISIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT; (D) ISSUE OF NOTICE TO A NON-EXISTENT COMPANY WHEN THE COMPANY AMALGAMATES WITH ANOTHER COMPANY. 10. THE LD.CIT(A) SHALL DECIDE THE ISSUE AS PER FACT AN D LAW, AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE SHA LL ALSO KEEP IN MIND THE VARIOUS DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSE SSEE WHICH WERE MENTIONED IN THE ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 11 PRECEDING PARAGRAPHS. SINCE WE ARE RESTORING THE I SSUE TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE LEGAL GROUNDS RAISED BEFORE US, TH EREFORE, WE ARE NOT DECIDING THE ISSUE ON MERIT AT THIS JUNCTURE. THE APPEAL FILED B Y THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. S.A. NO.48/DEL/2019 11. THE ASSESSEE THROUGH THIS STAY APPLICATION REQU ESTS THE TRIBUNAL TO STAY ON THE REALIZATION OF THE OUTSTANDING DEMAND OF RS.42,20,9 19/-. SINCE THE APPEAL OF THE ASSESSEE HAS BEEN HEARD AND THE MATTER HAS BEEN REM ANDED TO THE FILE OF THE CIT(A), THE STAY APPLICATION FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. HOWEVER, THE ASSESSEE, IF SO ADVISED, MAY APPROACH APPROPRIATE AUTHORITY F OR STAY ON REALIZATION OF OUTSTANDING DEMAND. 12. IN THE RESULT, THE APPEAL FILED BY THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND THE STAY APPLICATION FILED BY THE ASSESSEE IS D ISMISSED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 0 1.03.2019. SD/- SD/- (K. NARASIMHA CHARY) (R.K. PANDA) JUDICIAL MEMBER ACCOU NTANT MEMFBER DATED:01 ST MARCH, 2019 DK ITA NO.2621/DEL/2018 SA NO.48/DEL/2019 12 COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI
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