M/s. Yogendra Prakash Gupta, New Delhi V. ITO, New Delhi

ITA 2710/DEL/2012

• Counselvise Citation: 271020114 RSA 2012
• Duration Of Justice: 2 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 07-05-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 04-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P CHANDRAKER
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Opportunity of being heard
• Section: 69C; 147; 148

Judgement Text

ITA NO. 2710/ DEL/ 2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 2710 /DEL/201 2 A.Y. : 200 4 - 0 5 SH. YOGENDRA PRAKASH GUPTA, A - 4, M.P. ENCLAVE, PITAMPURA, DELHI 110 034 (PAN: AAJPG1839Q) VS. INCOME TAX OFFICER, WARD 25(1), NEW DELHI 110 001 (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. ASHWANI TANEJA, ADV. DEPARTMENT BY : SH. J.P. CHANDRAKER, SR. DR DATE OF HEARING : 07 - 05 - 201 5 DATE OF ORDER : 07 - 05 - 201 5 ORDER PER H.S. SIDHU : J M ASSESSEE HAS FILED THIS APPEAL AGAINST THE O RDER DATED 26.3.2012 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - XX IV , NEW DELHI P ERTAINING TO ASSESSMENT YEAR 2004 - 05 ON THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS UNWARRANTED DISMISSED THE APPEAL. THE APPEAL FILED BEFORE THE CIT(A) - XXIV WAS RELATED WITH THE UNWARRANTED ADDITION MADE FOR RS. 5,00,000/ - AND RS. 25,000 / - U/S. 68 AND U/S. 69C OF THE ACT. 2. WITHOUT PREJUDICE TO THE GROUND AS STATED ABOVE IT IS FURTHER PRAYED THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ITA NO. 2710/ DEL/ 2012 2 IN LAW THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 5,00,000/ - AND RS. 25,000/ - U/S . 68 AND 69C OF THE ACT AND MAY BE QUASHED. THE LD. CIT(A) HAS DISMISSED THE APPEAL DESPITE OF GENUINENESS OF THE REASON THE APPELLANT COULD NOT SUBSTANTIATE THE EVIDENCES BEFORE CIT(A) - XXIV. 3. THE APPELLANT CRAVES LEAVE TO ADD TO ALTER OR RESCIND ANY OF T HE GROUNDS HEREIN MENTIONED ABOVE, IF IT BECOMES NECESSARY TO DO SO IN THE INTEREST OF JUSTICE. 2. THE AFORESAID CASE CAME UP FOR HEARING BEFORE THE BENCH MANY TIMES AND ADJOURNED ON ONE AND ANOTHER PRETEXT. DURING THE PENDENCY OF THIS APPEAL, THE ASSESE E FILED AN ADDITIONAL GROUNDS OF APPEAL VIDE LETTER DATED 0 3.11.2014. THE CONTENTS OF THE ADDITIONAL GROUNDS ARE REPRODUCED AS UNDER: - THE ABOVE SAID APPEAL IS FIXED FOR HEARING BEFORE H BENCH FOR 30.12.2014. THE APPELLANTS BEGS TO MOVE THE FOLLOWI NG GROUNDS AS ADDITIONAL GROUNDS: - 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHING THE ASSESSMENT ORDER PASSED BY THE AO WHICH WAS PASSED WITHOUT COMPLYING THE MANDATORY CONDITIONS O F SECTION 147 TO 151 OF INCOME TAX ACT, 1961 AND REASONS RECORDED ARE INVALID IN THE EYES OF LAW AND REOPENING OF THE IMPUGNED CASE AND FRAMING OF ASSESSMENT ORDER IS BAD IN LAW AND BEYOND THE JURISDICTION OF AO. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUM STANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHING THE IMPUGNED ITA NO. 2710/ DEL/ 2012 3 ASSESSMENT ORDER FRAMED BY THE AO AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND MORE SO WHEN NOT NOTICE U/S. 143(2) WAS ISSUED IN THE IMPUGNED PROCEEDI NGS. 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 IT MAY PLEASE BE ADMITTED IN VIEW OF THE HON BLE SUPREME COURT DECISION IN THE CASE OF NTPC LIMITE D 229 ITR 383. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE REQUESTED THAT BEFORE PROCEEDING ON MERIT IN THE CASE OF THE ASSESSEE , FIRST THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE MAY BE CONSIDERED AND DECIDED. HE STATED THAT THE LD. CIT(A ) HAS PASSED THE IMPUGNED ORDER AND DECIDE THE ISSUE REGARDING ISSUANCE OF NOTICE U/S. 148 OF THE ACT AGAINST THE ASSESSEE BY PASSING A NON - SPEAKING ORDER AND WRONGLY APPLIED THE PROVISIONS OF SECTION 292BB OF THE ACT IN THE CASE OF THE ASSESSEE WHICH IS AGAINST THE LAW AND FACTS ON THE FILE. SECONDLY, HE ARGUED THAT IN THE CASE OF THE ASSESSEE , NO NOTICE U/S. 143(2) WAS SERVED AFTER FILING OF THE RETURN, IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT. THUS , THE REASSESSMENT ORDER PASSED BY THE AO IS IN VIOLATION OF THE RELEVANT PROVISION S , VOID AB IN I TIO IN LAW AND LIABLE TO BE QUASHED , AS HELD IN VARIOUS DECISIONS RENDERED BY THE HON BLE HIGH COURTS AND THE TRIBUNAL , AS MENTIONED IN HIS SYNOPSIS FILED DURING THE COURSE OF HEARING . HE HAS AL SO FILED AN OTHER CASE LAWS ON THE NON - ISSUANCE OF NOTICE U/S. 143(2) AND STATED THAT NON ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT IS NOT CURABLE AND THE REQUIREMENT CANNOT BE DISPENSED WITH SECTION 143(2) , IS APPLICABLE TO THE PROCEEDINGS U/S. 147/148 O F THE ACT. ITA NO. 2710/ DEL/ 2012 4 4. HE HAS FURTHER REFERRED VARIOUS CASE LAWS ON THE ADDITIONAL GROUNDS RAISED BY THE ASSSESSEE IN SUPPORT OF HIS CONTENTION AND ARGUMENTS ADVANCED BY HIM BEFORE THE BENCH AS WELL AS IN HIS WRITTEN SUBMISSION S, FILED DURING THE COURSE OF HEAR ING. HE REQUESTED THAT THE MATTER REQUIRE S THOROUGH INVESTIGATION AT THE LEVEL OF THE LD. CIT(A), BECAUSE HE HAS NOT PASSED A SPEAKING ORDER ON THE ISSUE IN DISPUTE. THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE MAY BE ADMITTED AND SEN D BACK TO THE LD. CIT(A) TO DECIDE THE SAME FRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 5. LD. DR RELIED UPON THE ORDER PASSED BY THE LD. CIT(A). 6. WE HAVE HEARD BOTH THE PARTIERS AND PERUSED THE RECORDS AVAILABLE WITH US, ESPECIALLY TH E ORDERS PASSED BY THE REVENUE AUTHORITIES, ALONGWITH THE CONTENTION RAISED BY THE ASSESSEE IN THE ORIGINAL GROUNDS AS WELL AS ADDITIONAL GROUNDS RAISED DURING THE PENDENCY OF THIS APPEAL, ALONGWITH THE CASE LAWS REFERRED BY HIM IN SYNOPSIS FILED BY HIM IN THE CASE OF THE ASSESSEE. 7. AFTER GOING THROUGH THE IMPUGNED ORDER, WE FIND THAT LD. CIT(A) HAS DECIDED THE LEGAL GROUNDS REGARDING THE ISSUANCE OF NOTICE U/S. 148 OF THE ACT FOR REOPENING OF THE ASSESSMENT AND COMPLETION OF FRESH ASSESSMENT. LD. CIT(A) HAS HELD THAT THE AO HAS RECEIVED THE PRECIOUS INFORMATION FROM THE INVESTIGATION WING REGARDING THE RECEIPT OF ACCOMMODATION ENTRY BY THE ASSESSEE AND AFTER ADOPTING THE PRESCRIBED PROCEDURE UNDER THE LAW , T HE AO COMPLETED THE ASSESSMENT. SECO NDLY, THE LD. CIT(A) IN THE IMPUGNED ORDER HAS ALSO HELD THAT DURING THE ASSESSMENT ITA NO. 2710/ DEL/ 2012 5 PROCEEDINGS, THE ASSESSEE APPEARED AND FILED ALL THE NECESSARY DETAILS, AS REQUIRED BY THE AO. THEREFORE, THE PROVISIONS OF SECTION 292BB ALSO COME INTO PLAY WHICH PREVE NT THE ASSESSEE FROM CHALLENGING THE SERVICES OR IMPROPER SERVICE OF NOTICE U/S. 148 OF THE I.T. ACT. 8. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT THE FINDING OF THE LD. CIT(A) IS NOT AS PER LA W AND ACCORDING TO THE FACTS OF THE PRESENT CASE. AFTER GOING THROUGH THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE IN WHICH THE LD. COUNSEL OF THE ASSESSEE HAS CITED VARIOUS DECISION S ON THE LEGAL ISSUE S RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUNDS OF APPEAL, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE, THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE MENTIONED IN PARA NO. 3 AT PAGE NO. 2 AND 3 OF THIS ORDER ARE PURELY LEGAL AND DO NOT REQUIRE FRESH FACTS WHICH IS TO BE INVESTIGAGED AND GO TO THE ROOT OF THE MATTER. IN THE INTEREST OF JUSTICE, WE ADMIT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE, IN VIEW OF THE DECISION OF THE HON BLE SUPREM E COURT OF INDIA IN THE CA S E OF NTPC LIMITED 229 ITR 383 AND REMIT BACK THE ORIGINAL GROUNDS AS WELL AS THE ADDITIONAL GROUNDS TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, UNDER THE LAW, AS PER RECORD, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO. 2710/ DEL/ 2012 6 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE O PEN C OURT ON 07/05 /20 1 5 . S D/ - S D / - [ J.S. REDDY ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 07 / 05 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 2710/ DEL/ 2012 7