Sh. Ashwini Kumar, Delhi V. ACIT, New Delhi

ITA 2648/DEL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7121 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: SUMANGLA SAXENA S
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NEW DELHI BENCH A: NEW DELHI BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO.2648/DEL/2013 ASSESSMENT YEAR : 2009-10 SHRI ASHWINI KUMAR, L/H OF LATE SH. SATISH ARORA, L-9, VIJAY CHOWK, LAXMI NAGAR, DELHI. PAN: AAJPA 9425C VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 12, NEW DELHI. APPELLANT RESPONDENT APPELLANT BY : SHRI RAJIV SAXENA & MS. SUMANGLA SAXENA, ADVOCATES RESPONDENT BY : SHRI S.K. JAIN, DR DATE OF HEARING : 22.09.2016 DATE OF PRONOUNCEMENT : 23.09.2016 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(APPEALS) INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE ASSESSING OFFICER HAS ERRED IN NOT APPRECI ATING EITHER THE FACTS AND CIRCUMSTANCES OF THE CASE OR THE SUBM ISSIONS OF THE APPELLANT OR THE PROVISIONS OF LAW AND FURTHER ERRE D IN PASSING THE ORDER, WHICH IS BAD IN LAW AND ON FACTS. ITA NO.2648/DEL/2013 PAGE 2 OF 5 2. THE ASSESSING OFFICER HAS ERRED IN MAKING THE AD DITION OF RS. 32,00,000/- U/S. 68 OF THE INCOME TAX ACT OUT OF THE INTEREST LOANS BEING RECEIVED BY THE APPELLANT FROM THE EXIS TING INCOME TAX ASSESSEE'S. 3. THE ASSESSING OFFICER HAS ERRED IN NOT APPRECIATI NG THE CONFIRMATIONS, INCOME TAX PARTICULARS, BANK STATEME NTS AND ID PROOF OF THE LENDERS FILED BEFORE HER AND FURTHER E RRED IN NOT APPRECIATING THE CONFIRMATION, BANK STATEMENT & INC OME TAX PARTICULAR FILED BY THE LENDERS IN RESPONSE TO ENQU IRY MADE U/S. 133(6)/131 OF THE INCOME TAX ACT. 4. THE ASSESSING OFFICER HAS ERRED IN MAKING THE ADD ITION OF RS. 32,00,000/- U/S. 68 OF THE INCOME TAX ACT WITHOUT POINTING OUT ANY DEFECT IN THE OVERWHELMING DOCUMENTS FILED BEFORE HER. 5. THE ASSESSING OFFICER HAS ERRED IN NOT APPRECIATI NG THAT SH. SATISH ARORA UNFORTUNATELY PASSED AWAY IN MARC H, 2009 AND THE LENDERS WERE NOT KNOWN TO THE LEGAL HEIR SH. AS HWINI ARORA AND HE HAS HANDICAPPED FOR PRODUCING THE SAID LENDE RS BEFORE THE ASSESSING OFFICER IN SHORT SPAN OF TIME. 6. THE ORDER OF THE ASSESSING OFFICER BEING ARBITRAR Y, ERRONEOUS AND ILLEGAL, IT MAY KINDLY BE MODIFIED. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE HAS CONTENDED THAT A NOTICE U/S. 143(2) WAS NOT SERVED UPON THE ASSESSEE. IN SUPPORT OF HIS CONTENTION, HE INVITED OUR ATTENTION TO THE ASSESSMENT ORDER, ACCORDING TO WHICH NOTICE U/S. 143(2) WAS ISSUED ON 9.8.2010 FIXING THE DATE OF HEARING FOR 25.8.10, WHEREAS THE ASSESSEE E XPIRED ON 23.03.2010. THEREAFTER THE ASSESSEE HAS ALSO FILED A RETURN OF INCOME THROUGH ITS LRS FOR THE A.Y. 2010-11 ON 03.09.10. DESPITE INFORMIN G THE AO WITH REGARD TO DEMISE OF THE ASSESSEE, THE AO HAS NOT ISSUED A NOT ICE U/S. 143(2) OF THE ACT UPON THE LRS OF THE ASSESSEE. FOR THE FIRST TI ME NOTICE U/S. 143(2) WAS ITA NO.2648/DEL/2013 PAGE 3 OF 5 ISSUED UPON THE LRS OF ASSESSEE ON 23.8.11, IN RESP ONSE TO RETURN FILED BY THE LRS ON 19.8.11 FOR THE AY 2009-10. SINCE NOTICE U/S. 143(2) WAS NOT SERVED UPON THE ASSESSEE, THE ASSESSMENT ITSELF IS BAD AND IS NOT SUSTAINABLE IN THE EYES OF LAW. 3. THE LD. DR, ON THE OTHER HAND, IN THIS REGARD HA S CONTENDED THAT ASSESSEE HAS FILED RETURN UNDER HIS OWN SIGNATURE A ND AO HAS NOT BEEN INFORMED BY THE LRS OF THE ASSESSEE WITH REGARD TO DEMISE OF THE ASSESSEE. IN RESPONSE TO NOTICE ISSUED ON 9.8.10 F IXING THE DATE FOR HEARING AS 25.8.10 U/S. 143(2) OF THE ACT UPON THE ASSESSEE, MR. S.K. BATRA, CA & AR OF ASSESSEE ATTENDED THE PROCEEDINGS AND THEREAFTER HEARING WAS ADJOURNED SINE DIE AND DURING THE COURSE OF APPEARANCE, HE HAS NOT INFORMED ABOUT THE DEMISE OF THE ASSESSEE. HAD IT BEEN INFORMED, NOTICE WOULD HAVE BEEN ISSUED U/S. 143(2) OF THE AC T UPON THE LRS OF THE ASSESSEE. LATER ON, WHENEVER THE LRS OF THE ASSESS EE FILED A REVISED RETURN UNDER THE SIGNATURE OF LRS, 143(2) NOTICE WA S DULY ISSUED TO THE LRS OF ASSESSEE. THEREFORE, THERE IS NO VIOLATION OF L EGAL PROVISIONS. 4. ON MERITS, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT HE HAS FILED THE BANK STATEMENT OF THE LENDERS, BESIDE S THEIR CONFIRMATIONS. THE AO HAS ALSO MADE AN ENQUIRY FROM THE LENDERS AN D IN RESPONSE THERETO, THEY HAVE CONFIRMED THE LOANS ADVANCED TO THE ASSESSEE AND ASSESSEE HAD ALSO PAID INTEREST ON THE LOANS. ITA NO.2648/DEL/2013 PAGE 4 OF 5 5. THE LD. DR IN THIS REGARD HAS CONTENDED THAT THE CIT(APPEALS) HAS NOT ADJUDICATED THIS ISSUE AND HAS PASSED EX PARTE ORDER. BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS NOT ESTABLISHED CREDITWORTHINESS OF THE CREDITORS, AS FROM THE BANK STATEMENTS IT IS EVIDEN T THAT SOME CREDITS WERE INTRODUCED IN THE ACCOUNT OF LENDER BEFORE ISSUANCE OF CHEQUES IN FAVOUR OF ASSESSEE. THEREFORE, ALL THESE ASPECTS ARE REQUIRE D TO BE PROPERLY EXAMINED. 6. HAVING CAREFULLY EXAMINED THE ORDERS OF AUTHORIT IES BELOW IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT ASSESSEE HAS NOT RAISED ANY SPECIFIC GROUND WITH REGARD TO THE VALIDITY OF THE ASSESSMEN T ON ACCOUNT OF NON- SERVICE OF NOTICE U/S. 143(2) OF THE ACT UPON THE A SSESSEE. THIS ARGUMENT WAS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL W ITHOUT RAISING A SPECIFIC GROUND. MORE OVER, THE CIT(APPEALS) HAS ADJUDICATE D THE APPEAL EX PARTE AS NONE APPEARED ON BEHALF OF ASSESSEE. THEREFORE, WE ARE OF THE VIEW THAT WITHOUT HAVING THE BENEFIT OF THE FINDING OF T HE FIRST APPELLATE AUTHORITY, IT IS NOT PROPER FOR THE SECOND APPELLATE AUTHORITY TO ADJUDICATE THE ISSUES ON MERIT. SO FAR AS THE VALIDITY OF THE ASSESSMENT ON THE GROUND OF NON- SERVICE OF NOTICE IS CONCERNED, WE ARE OF THE VIEW THAT THIS ASPECT WAS NOT EXAMINED BY THE CIT(APPEALS). THEREFORE, IN THE IN TEREST OF JUSTICE, WE ARE OF THE OPINION THAT LET THE MATTER BE EXAMINED BY T HE CIT(APPEALS) ON BOTH THE ISSUES, AFTER AFFORDING OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. ITA NO.2648/DEL/2013 PAGE 5 OF 5 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF SEPTEMBER 2016. SD/- SD/- ( L.P. SAHU ) (SUNIL KUMAR YADAV ) ACCOUNTANT MEMBER JUDIC IAL MEMBER NEW DELHI, DATED, THE 23 RD SEPTEMBER, 2016. /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR, ITAT, NEW DELHI.