Smt. Jyotika Gupta, Noida V. ITO, Noida

ITA 2800/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3440 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 10-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: S B GARG
• Keywords: Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D DELHI) BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER ITA NO. 2800(DEL)2009 ASSESSMENT YEAR: 2005-06 SMT. JYOTIKA GUPTA, INCO ME TAX OFFICER, A-71, SECTOR 30, NOIDA, UP. V. WARD 2, NOI DA, UP. (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI ACHIN GARG, ADV. & S.B. GARG , CA RESPONDENT BY: SHRI A.K. MONGA, DR ORDER PER A.D. JAIN, J.M . THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2005- 06 AGAINST THE ORDER DATED 03.03.2009 PASSED BY THE LD. CIT(A), GH AZIABAD. 2. THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN TAKEN: - 1. THE LD. COMMISSIONER OF INCOME TAX(APPEALS)GHAZ IABAD, UP[HEREINAFTER THE CIT(A)] FAILED TO APPRECIATE THE FACTS OF THE CASE AND ERRED IN UPHOLDING THAT THE ASSESSEE IS NOT ENT ITLED TO DEDUCTION OF ` 17,98,447/- U/S 54 OF THE ACT. 2. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE OP ENING CASH BALANCE CANNOT BE ADDED AS INCOME, DURING THE YEAR UNDER CO NSIDERATION. 2.1 THE LD. CIT(A) FURTHER FAILED TO APPRECIATE THE FACTS OF THE CASE AND ERRED IN UPHOLDING THE ADDITION OF ` 5,56,778/- BEING OPENING CASH APPEARING IN PERSONAL CASH BOOK OF THE ASSES SEE. ITA 2800(DEL)09 2 3. THE LD. CIT(A) FAILED TO APPRECIATE THE FACTS O F THE CASE AND ERRED IN UPHOLDING THE ADDITION OF ` 1,25,000/- (OUT OF ` 2,00,000) BEING DEPOSIT ON 29.11.2004 IN SOD ACCOUNT WITH UBI INSTE AD OF ALLOWING THE LOSS OF ` 30,311/-. 4. THE LD. CIT(A) FAILED TO APPRECIATE THE FACTS O F THE CASE AND ERRED IN UPHOLDING THE ADDITION OF ` 2,35,000 (` 35,000 + ` 2,00,000) BEING DEPOSIT ON 26.07.2004 IN SAVING ACCOUNT WITH UBI. 5. DEDUCTION OF ` 3,318/- CLAIMED U/S 8D HAS NOT B EEN ALLOWED, PARTICULARLY WITHOUT ASSIGNING ANY REASON. 6. ANY NOTICE U/S 143(2) OF THE ACT WAS NOT ISSUED MUCH LESS SERVED UPON THE ASSESSEE, AFTER FILING OF THE REVISED RETU RN OF INCOME AND THEREFORE, THE ASSESSMENT IS WITHOUT JURISDICTION A ND DESERVES TO BE QUASHED. 7. THE ASSESSMENT, HAVING BEEN MADE WITH APPROVAL OF HIGHER AUTHORITIES, IS BAD IN LAW AND NOT SUSTAINABLE AND DESERVES TO BE QUASHED. 8. THE ORDER OF THE LD. CIT(A) TO THE EXTENT IT HA S UPHELD THE ORDER OF THE LD. INCOME TAX OFFICER, BEING NON-SPEAKING AND NOT REASONED, IS BAD IN LAW AND, THEREFORE, THE SAME DESERVES TO BE SET ASIDE. 3. THE ASSESSEE HAS ALSO RAISED THE FOLLOWING ADDIT IONAL GROUND OF APPEAL:- THAT ASSESSMENT U/S 143(3) OF THE ACT HAS BEEN COM PLETED WITHOUT PROPERLY ISSUING THE NOTICE U/S 143(2) OF THE INCOM E TAX ACT, 1961, AND WITHOUT VALID SERVICE OF ANY NOTICE U/S 143(2) AND, THEREFORE, THE ASSESSMENT IS BAD IN LAW, NULL AND VOID AB INITIO. 4. SEEKING ADMISSION OF THE ADDITIONAL GROUND, IT H AS BEEN CONTENDED ON BEHALF OF THE ASSESSEE, BY WAY OF WRITTEN SYNOPSIS, AS WELL AS ORAL ARGUMENTS, THAT BEFORE THE LD. AO AND LD. CIT(A), THE ASSESSEE WAS REPRESENTED BY SH. M.B. GUPTA, CA, AS IS EVIDENT FROM THEIR ORDERS; TH AT SUBSEQUENT TO THE SAID ITA 2800(DEL)09 3 ORDER OF THE LD. CIT(A), THE ASSESSEE CHANGED HER C OUNSEL AND SHRI S.B. GARG, CA, SHRI SACHIN KUMAR, CA AND SHRI ACHIN GARG , ADVOCATE WERE APPOINTED TO LOOK AFTER THE APPEAL; THAT SHRI ACHIN GARG, ADVOCATE DISCUSSED THE CASE WITH THE ASSESSEE FOR PREPARING THE APPEAL AND COULD NOT LOOK INTO THE COMPLETE/WHOLE ASSESSMENT RECORD, AS THE ASSESS EE WAS NOT IN POSSESSION OF THE SAME; THAT THE ASSESSEE APPLIED FOR CERTIFIE D COPY OF THE ASSESSMENT RECORD VIDE APPLICATION DATED 18.05.2009; THAT THE AO PROVIDED UNAUTHENTICATED COPY OF ONLY SOME/PART RECORD ON 2 6.05.2009; THAT THEREAFTER, THE ASSESSEE VIDE APPLICATION DATED 27. 05.2009 UNDER THE RIGHT TO INFORMATION ACT, REQUESTED THE AO, INTER ALIA, TO I NFORM THE DATE OF NOTICES, SECTION AND SUB-SECTION UNDER WHICH THE NOTICE WAS ISSUED AND MODE AND MANNER OF SERVICE OF THE SAME, DATE OF LETTERS ISSU ED BY THE AO ALONG WITH MODE AND MANNER OF SERVICE OF THE SAME; THAT SHRI A CHIN GARG, ADVOCATE APPRECIATING THAT THE AO MAY TAKE 30 DAYS TO PROVID E THE INFORMATION, COULD NOT WAIT FOR THE INFORMATION AND PREPARED THE APPEA L, WHICH WAS FILED ON 10.6.2009; THAT THEREAFTER, THE AO VIDE ORDER/LETTE R DATED 3.7.2009 INFORMED THAT COPIES HAVE ALREADY BEEN PROVIDED AND NOTICES HAVE BEEN ISSUED FROM TIME TO TIME AND SERVED BY THE INSPECTOR; THAT THER EAFTER, THE ASSESSEE UNDER THE RIGHT TO INFORMATION ACT, FILED AN APPEAL DATED 16.7.2009 BEFORE THE ADDL. CIT, WHO VIDE ORDER DATED 17.8.2009 DIRECTED THE AO TO PROVIDE THE ITA 2800(DEL)09 4 REQUISITE DOCUMENTS WITHIN 15 DAYS AND UPHELD DENIA L OF COPY OF PAGE NO. 269; THAT THE AO, ON 12.2.2010 PROVIDED CERTIFIED C OPY OF THE NOTE-SHEET AND NOTICE U/S 143(2); AND THAT THEREAFTER, TO REPRESE NT THE APPEAL, THE CASE WAS DISCUSSED WITH SENIOR COUNSEL, SHRI S.B. GARG, CA, WHO WAS OF THE OPINION THAT THE NOTICE U/S 143(2) OF THE ACT WAS NOT VALI DLY SERVED UPON THE ASSESSEE WITHIN THE STATUTORY TIME PERMITTED BY THE PROVISO TO SECTION 143(2) OF THE ACT. 5. IT HAS ALSO BEEN CONTENDED THAT THE ADDITIONAL G ROUND IN QUESTION COULD NOT BE TAKEN EARLIER, SINCE IN SANT BABA MOH AN SINGH V. CIT, 90 ITR 197(ALL), IT WAS HELD THAT NON-SERVICE OF NOTICE U/ S 143(2) OF THE ACT WILL NOT INVALIDATE THE ASSESSMENT; THAT HOWEVER, ON 2.2.201 0, IN ACIT V. M/S. HOTEL BLUE MOON, 321 ITR 362(SC), THE HONBLE SUPR EME COURT HAS HELD THAT NON-SERVICE OF NOTICE U/S 143(2) OF THE ACT WI LL INVALIDATE THE ASSESSMENT; AND THAT IT WAS IN PURSUANCE OF M/S. H OTEL BLUE MOON (SUPRA), THE ADDITIONAL GROUND OF APPEAL WAS FILED ON 3.3.20 10. 6. THE LD. DR, ON THE OTHER HAND, HAS OPPOSED THE A DMISSION OF THE ADDITIONAL GROUND OF APPEAL. IT HAS BEEN STATED TH AT NEITHER WAS THIS ISSUE EVER RAISED BEFORE THE AUTHORITIES BELOW, NOR DOES IT EMANATE FROM THE IMPUGNED ORDER AND THEREFORE, IT BE NOT ADMITTED. ITA 2800(DEL)09 5 7. WE HAVE HEARD THE PARTIES ON THE ISSUE OF ADMISS ION OF ADDITIONAL GROUND OF APPEAL. IN THIS GROUND OF APPEAL, THE A SSESSEE HAS CONTENDED THAT SINCE THE ASSESSMENT U/S 143(3) OF THE I.T. ACT WAS COMPLETED WITHOUT SERVICE OF ANY NOTICE U/S 143(2) OF THE ACT, THE A SSESSMENT IS BAD IN LAW. THIS GROUND WAS ADMITTEDLY NOT RAISED BEFORE THE AU THORITIES BELOW. THIS, HOWEVER, HAS BEEN EXPLAINED BY THE ASSESSEE. IT HA S BEEN CONTENDED, INTER ALIA, THAT IT WAS ONLY ON 12.2.2010 THAT A CERTIFIE D COPY OF THE AOS NOTE SHEET AND NOTICE U/S 143(2) OF THE ACT WERE PROVIDE D TO THE ASSESSEE, WHEN SUCH INFORMATION WAS SOUGHT UNDER THE RIGHT TO INFO RMATION ACT, VIDE REQUEST DATED 16.7.2009; THAT IT WAS THERE-FROM THA T IT CAME OUT THAT NO NOTICE U/S 143(2) OF THE ACT HAD EVER BEEN SERVED ON THE A SSESSEE, AS AVAILABLE FROM THE AOS RECORD; AND THAT THEREFORE, PRIOR THERETO, THERE WAS NO OCCASION TO RAKE UP THIS ISSUE AT ANY STAGE. 8. WE FIND FORCE IN THE SUBMISSION MADE BY THE ASSE SSEE. SINCE THE NOTE SHEET OF THE AO AND THE COPY OF THE NOTICE U/S 143( 2) OF THE ACT WERE MADE AVAILABLE TO THE ASSESSEE ONLY ON 12.2.2010, THE AD DITIONAL GROUND AT HAND COULD NOT HAVE BEEN RAISED BY THE ASSESSEE EITHER B EFORE THE AUTHORITIES BELOW, OR BEFORE US IN THE MAIN GROUND OF APPEAL, T HE APPEAL HAVING BEEN FILED ON 10.6.2009. ITA 2800(DEL)09 6 9. THE ADDITIONAL GROUND OF APPEAL CHALLENGES THE V ALIDITY OF ASSESSMENT ON THE BASIS THAT NO NOTICE U/S 143(2) OF THE ACT W AS EVER SERVED ON THE ASSESSEE. NOW, THIS CHALLENGE GOES TO THE BASIC VA LIDITY OF THE ASSESSMENT. 10. IN THE ABOVE FACTS, THE ADDITIONAL GROUND OF AP PEAL TAKEN BY THE ASSESSEE IS ADMITTED. 11. SINCE THE ADDITIONAL GROUND OF APPEAL WAS NOT B EFORE THE LD. CIT(A), WE DEEM IT APPROPRIATE TO REMIT IT TO THE FILE OF T HE CIT(A), TO BE DECIDED IN ACCORDANCE WITH LAW, ON APPRECIATION OF THE MATERIA L AVAILABLE ON RECORD, PARTICULARLY, THE NOTE SHEET OF THE AO AND THE COPY OF NOTICE U/S 143(2) OF THE ACT, IN ACCORDANCE WITH M/S. HOTEL BLUE MOON (SUPRA). 12. CONSEQUENTLY, THE MERITS OF THE ASSESSMENT ARE ALSO REMITTED TO THE CIT(A) FOR DECISION AFRESH. THE MERITS OF THE ASSE SSMENT WILL BE DECIDED BY THE LD. CIT(A) IN PURSUANCE OF THE DECISION TO BE T AKEN ON THE ADDITIONAL GROUND OF APPEAL, AS ABOVE. 13. IN THE RESULT, FOR STATISTICAL PURPOSES, THE AP PEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.07.2011. SD/- SD/- (G.E. VEERABHADRAPPA) (A.D. JAIN) VICE PRESIDENT JUDICIAL MEMBER DATED: 22.07.2011 *RM ITA 2800(DEL)09 7 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR