Mr. Madan Gopal Gupta, Delhi V. ACIT, New Delhi

ITA 2871/DEL/2015

• Counselvise Citation: 287120114 RSA 2015
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 21-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 11-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YATENDRA SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Accommodation entries
• Section: 143(3); 142(1); 133A; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 2871 /DEL/201 5 : ASSTT. YEAR : 2009 - 10 MADAN GOPAL GUPTA, B - 13/168, PHARMA APARTMENT, PATPARGANJ, DELHI - 110092 VS ACIT, CENTRAL CIR CLE - 11, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A HUPG6049A ASSESSEE BY : SH . ANIL JAIN, CA REVENUE BY : SH. YATENDRA SINGH , SR. DR DATE OF HEARING : 21 .0 7 .2015 DATE OF PRONOUNCEMENT : 10 .09 .2015 ORDER THIS IS AN APPEAL BY TH E ASSESSEE AGAINST THE ORDER DATED 0 9.0 3 .2015 OF LD. CIT (A) - 16, NEW DELHI . 2 . FOLLOWING GROUND HAVE BEEN RAISED IN THIS APPEAL: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISION OF LAW LD. CIT(APPEALS) HAS FAILE D TO APPRECIATE THAT TH E IMPUGNED ORDER PASSED U/S 143(3) OF THE IT ACT, IS ILLEGAL, BAD IN LAW, WITHOUT JURISDICTION AND CONTRARY TO THE FACTS. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISION OF LAW LD. CIT(APPEALS) HAS FAILED TO APPRECIATE THAT THE NOTICE ISSUED U/S 143(2) IS ILLEGAL, BAD IN LAW AND TIME BARRED AND CONSEQUENTLY ASSESSMENT FRAMED BECOMES ILLEGAL. ITA NO.2871 /DEL /2015 MADAN GOPAL GUPTA 2 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISION OF LAW THE IMPUGNED ASSESSMENT ORDER PASSED BY THE LD. AO IS AGAINST THE PRIN CIPLES OF NATURAL JUSTICE AND HAS BEEN PASSED WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISION OF LAW, THE LD. CIT(APPEALS) HAS ERRED IN SUSTAINING AN ADDITION OF RS. 4,61,914/ - AS COMMISSION INCOME BY WAY OF APPLYING RATE OF 2% ON THE GROSS AMOUNT OF ALLEGED ACCOMMODATION ENTRIES. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. AO HAS ERRED IN LAW IN INITIATING THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE INCOM E TAX ACT, 1961. 6. THAT THE LD. AO HAS ERRED IN LAW IN CHARGING OF INTEREST U/S 234B & 234D OF THE IT ACT. 7. THAT THE APPELLANT CRAVES LEAVE TO RESERVE TO ITSELF THE RIGHT TO ADD, ALTER, AMEND, VARY, MODIFY AND/OR WITHDRAW AND GROUNDS OF APPEAL AT OR B EFORE THE TIME OF HEARING. 3 . FACTS OF THE CASE IN BRIEF ARE THAT AN ACTION U/S 133A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CARRIED OUT IN THE CASE OF ASSESSEE ON 23.08.2008. THEREAFTER NOTICE U/S 143(2) OF THE ACT WAS ISS UED TO THE ASSESSEE FOLLOWED BY A QUESTIONNAIRE CALLING FOR INFORMATION U/S 142(1) OF THE ACT. THE ASSESSEE FILED THE RETURN OF INCOME ON 31.03.2010 DECLARING AN INCOME OF RS. 2,40,000/ - . ITA NO.2871 /DEL /2015 MADAN GOPAL GUPTA 3 THE AO HOWEVER, FRAMED THE ASSESSMENT AT AN INCOME OF RS. 7,01,914/ - BY MAKING THE ADDITION OF RS. 4,61,914/ - . 4 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND RAISED THE LEGAL ISSUE VIDE GROUND NOS. 1 TO 3 CHALLENGING THE VALIDITY OF THE ASSESSMENT ORDER BEING TIME BARRED. THE LD. CIT(A) HOWEVER, DID NOT ADJUDICATE THE LEGAL ISSUE AND ON MERIT DISMISSED THE APPEAL OF THE ASSESSEE. 5 . BEING AGGRIEVED THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEGAL ISSUE CHALLENGING THE JURISDICTION OF THE AO WAS NOT DECIDED BY T HE LD. CIT(A). THEREFORE, THE MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME. 6 . THE LD. DR IN HIS RIVAL SUBMISSIONS DID NOT OBJECT IF THE CASE IS SET ASIDE TO THE LD. CIT(A). 7 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND REMAND THIS CASE BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION BECAUSE HE HA S NOT ADJUDICATED THE LEGAL ISSUE WHICH GOES TO THE ROOT OF THE MATTER AND SUBSTANTIALLY RAISED BY THE ASSESSEE BEFORE HIM. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS REMITTED BACK TO THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING ITA NO.2871 /DEL /2015 MADAN GOPAL GUPTA 4 HEARD TO THE ASSESSEE. THE LD. CIT(A) I S DIRECTED TO DECIDE THE LEGAL ISSUE . 8 . IN THE RES ULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 10 /09 /2015 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 10 /09 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR