M/s Vabsak Properties Pvt. Ltd., Delhi V. ITO, New Delhi

ITA 2787/DEL/2013

• Counselvise Citation: 278720114 RSA 2013
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2004-2005
• Appeal Filed On: 07-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Keywords: Reopening of assessment; Opportunity of being heard
• Section: 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH H HH H : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO. .. .2787/DEL/2013 2787/DEL/2013 2787/DEL/2013 2787/DEL/2013 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2004 2004 2004 2004- -- -05 0505 05 M/S VABSAK PROPERTIES M/S VABSAK PROPERTIES M/S VABSAK PROPERTIES M/S VABSAK PROPERTIES PVT.LTD., PVT.LTD., PVT.LTD., PVT.LTD., A AA A- -- -22, ANAND VIHAR, 22, ANAND VIHAR, 22, ANAND VIHAR, 22, ANAND VIHAR, D DD DELHI ELHI ELHI ELHI 110 092. 110 092. 110 092. 110 092. PAN : PAN : PAN : PAN : AABCV6198G. AABCV6198G. AABCV6198G. AABCV6198G. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -17(1), 17(1), 17(1), 17(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SALIL AGARWAL, ADVOCATE AND SHRI SHAILESH GUPTA, CA. RESPONDENT BY : SHRI SAMEER SHARMA, SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-19, NEW DELHI DATED 14 TH DECEMBER, 2012 FOR THE AY 2004-05. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEAL. HOW EVER, GROUND NO.2 OF THE ASSESSEES APPEAL WHICH GOES TO THE RO OT OF THE MATTER READS AS UNDER:- THAT THE LEARNED CIT(APPEALS) HAVING FOUND THAT THE OBJECTIONS RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AGAINST THE ASSUMPTION OF JURISDICTION U/S 147 O F THE ACT, WERE NOT DISPOSED OFF BY THE ASSESSING OFFICER, HAS ERRED IN HOLDING THE SAME TO BE ONLY A PROCEDURAL ER ROR. ITA-2787/DEL/2013 2 THAT THE LEARNED CIT(APPEALS) OUGHT TO HAVE QUASHED T HE ASSESSMENT ORDER. 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERI AL PLACED BEFORE US. WE FIND THAT THE ISSUE RAISED BY THE ASSESSEE VIDE GROUND NO.2 OF ITS APPEAL IS FULLY COVERED BY THE DECISION OF HONBLE APEX COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. VS. INCOME-TAX OFFICER AND OTHERS [2003] 259 ITR 19 (SC), WHEREIN THEIR LORDSHIPS HE LD AS UNDER:- WHEN A NOTICE UNDER SECTION 148 OF THE INCOME-TAX A CT, 1961, IS ISSUED, THE PROPER COURSE OF ACTION FOR THE N OTICEE IS TO FILE THE RETURN AND, IF HE SO DESIRES, TO SEEK REA SONS FOR ISSUING THE NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT O F REASONS, THE NOTICEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. 4. IN THE CASE UNDER APPEAL, THOUGH THE ASSESSEE HAS FILE D THE OBJECTION AGAINST THE ISSUE OF NOTICE UNDER SECTION 14 8, THE ASSESSING OFFICER, IN THE ASSESSMENT ORDER UNDER SECTION 143(3), MENTIONS THE OBJECTIONS FILED BY THE ASSESSEE WERE DISPOSED OFF . THAT DURING THE REMAND PROCEEDINGS BEFORE THE LEARNED CIT(A), THE ASSE SSING OFFICER ADMITTED THAT NO SEPARATE/WRITTEN ORDER WAS PASSED ON T HE OBJECTION OF THE ASSESSEE. THAT DESPITE THE ABOVE REMAND REPORT, LEA RNED CIT(A) UPHELD THE ORDER OF THE ASSESSING OFFICER WHICH WAS IN COMPLETE VIOLATION OF RATIO LAID DOWN BY THE HONBLE APEX CO URT. 5. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF AUTHORITIES BELOW. ITA-2787/DEL/2013 3 6. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES AN D PERUSING THE MATERIAL PLACED BEFORE US, WE ARE OF THE OPINION THAT IN THE CASE UNDER APPEAL BEFORE US, THE PROCEDURE LAID DOWN BY T HE HONBLE APEX COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) HAS NOT BEEN FOLLOWED BY THE ASSESSING OFFICER. AS PER HONBLE APEX COURT, AFTER THE RECEIPT OF NOTICE UNDER SECTION 148, THE ASSESSEE HAS A RIGHT TO ASK FOR THE REASONS FOR ISSUING THE NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH THE REASONS RECORDED FOR REOPENING OF ASSESSMENT. ON RECEIPT OF REASONS, THE ASSESSEE IS ENTITLED TO FILE THE OBJECTION TO THE ISSUANCE OF NOTICE AND THEREAFTER, THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE CASE UNDE R APPEAL BEFORE US, THE ASSESSEE HAS FILED THE OBJECTION TO THE I SSUANCE OF NOTICE AND THE ASSESSING OFFICER FAILED TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. DURING REMAND PROCEEDINGS, THE ASSESSING OFFICER ADMITTED THAT NO SUCH WRITTEN ORDER WAS PASSED DISPOSING OF THE ASSESSEES APPLICATION. THEREFORE, THE ASSESSING OFFICER HA S FAILED TO FOLLOW THE DIRECTION GIVEN BY THE HONBLE APEX COUR T IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. (SUPRA). IN THE ABOVE CIRCUMSTANCES, WE DEEM IT PROPER TO SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE FO LLOWING DIRECTIONS:- (I) (I)(I) (I) THAT HE WILL DISPOSE OF THE ASSESSEES OBJECTION RAISED AGAINST THE REOPENING OF ASSESSMENT IN ACCORDANCE WITH LAW BY PASSING A SPEAKING ORDER AND WILL SUPPLY THE COP Y THEREOF TO THE ASSESSEE. (II) (II)(II) (II) THAT IF HE IS OF THE OPINION THAT ASSESSMENT IS VALIDLY REOPENED, THEN, HE WILL PROCEED TO MAKE THE ASSESSMENT AFRESH DE NOVO IN ACCORDANCE WITH LAW AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA-2787/DEL/2013 4 7. SINCE WE HAVE ENTIRELY SET ASIDE THE ASSESSMENT ORDER , THE OTHER GROUNDS RAISED BY THE ASSESSEE WITH REGARD TO MERITS OF TH E ADDITION OF ` 20 LAKHS MADE BY THE ASSESSING OFFICER UNDER SECTION 68 NEED NO ADJUDICATION. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 8 TH NOVEMBER, 2013. SD/- SD/- ( (( (CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 08.11.2013 VK. COPY FORWARDED TO: - 1. APPELLANT : M/S VABSAK PROPERTIES PVT.LTD., M/S VABSAK PROPERTIES PVT.LTD., M/S VABSAK PROPERTIES PVT.LTD., M/S VABSAK PROPERTIES PVT.LTD., A AA A- -- -22, ANAND VIHAR, DELHI 22, ANAND VIHAR, DELHI 22, ANAND VIHAR, DELHI 22, ANAND VIHAR, DELHI 110 092. 110 092. 110 092. 110 092. 2. RESPONDENT : INCOME TAX INCOME TAX INCOME TAX INCOME TAX OFFICER, OFFICER, OFFICER, OFFICER, WARD WARD WARD WARD- -- -17(1), NEW DELHI. 17(1), NEW DELHI. 17(1), NEW DELHI. 17(1), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR