SUSHILA DEVI, DEOGHAR V. ACIT CIRCLE-1 , RANCHI

ITA 275/RAN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0481 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 07-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MOHANTY
• Assessee Lawyers: M K CHOUDHARY
• Keywords: Reopening of assessment; Unexplained investment
• Section: 143(3); 147

Judgement Text

P A G E 1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI SMC BENCH, RANCHI BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 275 / RAN /201 7 ASSESSMENT YEAR : 2007 - 08 SUSHILA DEVI, W/O SRI HARI NARAYAN RAI, R/O. SONARAITHARI, DIST: DEOGARH. VS. ACIT, CIRCLE - 1, RANCHI. PAN/GIR NO. AIFPD 7904 F (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI M.K.CHOUDHA RY, ADV REVENUE BY : SHRI A.K.MOHANTY, JCIT DATE OF HEARING : 27 / 11 / 2018 DATE OF PRONOUNCEMENT : 28 / 11 / 2018 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), RANCHI, D ATED 22.8.2017 FOR THE ASSESSMENT YEAR 2007 - 08. 2. AN ADJOURNMENT PETITION WAS FILED BY LD AUTHORISED REPRESENTATIVE OF THE ASSESSE. HOWEVER, AT THE TIME OF HEARING, LD AUTHORISED REPRESENTATIVE DID NOT PRESS THE ADJOURNMENT PETITION AND, THEREFORE, THE BENCH PROCEED ED TO HEAR THE APPEAL OF THE ASSESSE. ITA NO.275/RAN/2017 ASSESSMENT YEAR : 2007 - 08 : P A G E 2 | 5 3. GROUND NOS.1 & 2 OF ADDITIONAL G ROUND RAISED BY THE ASSESSE ARE AS UNDER: 1. FOR THAT THE IMPUGNED ASSESSMENT PROCEEDING U/S.143(3)/147 IS WITHOUT JURISDICTION BECAUSE AT TIME OF ASSESSMENT NO INVESTMENT IN LAND, BUILDING OR OTHER ASSETS WERE FOUND WHICH DID NOT COMMENSURATE TO THE INCO ME SHOWN IN THE RETURN AND NO UNDISCLOSED INVESTMENT WAS FOUND OR ASSESSED. AS SUCH THE PROCEEDINGS SHOULD HAVE BEEN DROPPED. 2. FOR THAT THE AO WAS NOT AUTHORISED TO REVIEW THE RETURN IN THE GARB OF SECTION 147 TO MAKE FISHING ENQUIRIES AND TO MAKE ADDIT IONS BY DISBELIEVING THE ITEMS WHICH WERE DULY DISCLOSED IN THE RETURN AND WHICH WERE TOTALLY UNCONNECTED WITH THE GROUNDS FOR REOPENING OF THE ASSESSMENT U/S.147, FOR WHICH EVEN NO REASONS WERE RECORDED. 4. THE LD DEPARTMENTAL REPRESENTATIVE DID NOT HAV E ANY OBJECTION IN ADMITTING THE ADDITIONAL GROUNDS RAISED BEFORE THE TRIBUNAL. THEREFORE, THE ADDITIONAL GR OUNDS RAISED BY THE ASSESSE WERE ADMITTED AND THE PARTIES WERE ALLOWED TO MAKE TH EIR SUBMISSIONS ON THE SAME. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007 - 08 ON 16.1.2008 SHOWING INCOME OF RS.1,79,971/ - . THE SAME WAS PROCESSED UNDER SECTION 143(1) ON 20.3.2009. THEREAFTER, THE ASSESSING OFFICER ISSUED NOTICE FOR REOPENING OF THE ASSES SMENT U/S.148 OF THE ACT ON 21.8.2009 AND SERVED ON THE ASSESSE ON THE SAME DATE BY RECORDING THE FOLLOWING REASONS: ITA NO.275/RAN/2017 ASSESSMENT YEAR : 2007 - 08 : P A G E 3 | 5 SMT. SUSHILA DEVI, AS PER RETURN OF INCOME OF A.Y. 2007 - 08 HAS SHOWN TOTAL INCOME OF RS.1,79,971/ - . HOWEVER, AS PER DETAILS/MATERIALS AVAILABLE ON RECORD, IT IS SEEN THAT SMT,. SUSHILA DEVI HAS MADE SUBSTANTIAL INVESTMENTS IN LAND, BUILDING AND OTHER ASSETS WHICH ARE NOT COMMENSURATE TO THE INCOME SHOWN IN RETURN FILED. VARIOUS MEDIA REPORTS ARE ALSO AVAILABLE INDICATING SUBSTANTIAL UNDISCLOSED INVESTMENTS. 6. THEREAFTER, THE ASSESSMENT WAS COMPLETED U/S.147 R.W.S143(3) OF THE ACT ON 30.12.2010 BY MAKING ADDITION OF RS.30,500/ - UNDER THE HEAD UNEXPLAINED INVESTMENT THROUGH LOAN, RS.1,11,659/ - UNDER THE HEAD UNEXPLAINED INVESTMENT AND RS.3,50,000/ - UNDER THE HEAD UNSECURED LOAN AND AFTER TAKING INTO CONSIDERATION THE INCOME SHOWN BY THE ASSESSE IN THE RETURN AT RS.1,79,971/ - , THE TOTAL INCOME OF THE ASSESSE WAS DETERMINED AT RS.6,72,130/ - . 7 . BEFORE ME, LD AUTHORISED REPRESENTATIVE OF THE ASSESSE SUBMITTED THAT THOUGH THIS GROUND OF APPEAL WAS NOT RAISED BEFORE THE CIT(A) BUT IT BEING A LEGAL ISSUE, WHICH GOES TO THE ROOT OF THE MATTER, SAME CAN BE RAISED BEFORE THE TRIBUNAL AND RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS NPTC, 229 ITR 363 (SC). HE FURTHER SUBMITTED THAT REOPENING OF ASSESSMENT WAS MADE BY THE ASSESSING OFFICER ON THE GR OUND THAT THAT SMT,. SUSHILA DEVI HAS MADE SUBSTANTIAL INVESTMENTS IN LAND, BUILDING AND OTHER ASSETS WHICH ARE NOT COMMENSURATE TO THE INCOME SHOWN IN RETURN FILED. IN THE ASSESSMENT FRAMED, NO ADDITION HAS BEEN MADE ITA NO.275/RAN/2017 ASSESSMENT YEAR : 2007 - 08 : P A G E 4 | 5 ON THIS GROUND TO THE INCOME OF THE A SSESSE, FOR WHICH, REOPENING OF ASSESSMENT WAS MADE. THEREFORE, IT WAS HIS SUBMISSION THAT THE ASSESSING OFFICER HAD NO JURISDICTION TO PASS ORDER UNDER SECTION 147 R.W.S 143(3) OF THE ACT MAKING ADDITION ON THE OTHER HEADS TO THE INCOME OF THE ASSESSE. FOR THIS , HE RELIED ON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS MOHD JUNED DADANI (2013) 355 ITR 172 (GUJ) AND THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. JET AIRWAYS (I) LTD., (2011) 331 ITR 236 (BOM). 8 . ON TH E OTHER HAND, LD DEPARTMENTAL REPRESENTATIVE COULD NOT CONTROVERT THE SUBMISSION OF LD A.R. OF THE ASSESSE. 9 . I HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. I FIND THAT THIS GROUND OF AP PEAL WAS NOT RAISED BEFORE THE CIT(A) AND HAS BEEN RAISED BEFORE ME FOR THE FIRST TIME. THEREFORE, I SET ASIDE THIS ISSUE TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE SAME AS PER LAW AND AFTER ALLOWING REASONABLE HEARING TO THE ASSESSE. 10. AS I HAVE RE STORED THE ABOVE GROUND OF APPEAL TO THE FILE OF THE CIT(A), WHICH RELATES TO THE JURISDICTION OF THE ASSESSING OFFICER TO PASS ORDER U/S.147 OF THE ACT, HENCE, OTHER GROUNDS OF APPEAL ITA NO.275/RAN/2017 ASSESSMENT YEAR : 2007 - 08 : P A G E 5 | 5 TAKEN BY THE ASSESSE ON MERITS OF ADDITION ARE ALSO RESTORED BACK TO HI S FILE FOR FRESH ADJUDICATION AS PER LAW. 1 1 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 28 / 11 /2018. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER RANCHI ; DATED 28 / 11 /2018 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT.SECRETARY, ITAT, RANCHI ON TOUR 1. THE APPELLANT : SUSHILA DEVI, W/O SRI HARI NARAYAN RAI, R/O. SONARAITHARI, DIST: DEOGARH 2. THE RESPONDENT. ACIT, CIRCLE - 1, RANCHI 3. THE CIT(A) - RANCHI. 4. PR.CIT - RANCHI 5. DR, ITAT, RANCHI 6. GUARD FILE. //TRUE COPY//