SACHIN KAUSHIK, MEERUT V. ITO, WARD- 2(3), MEERUT

ITA 3026/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5133 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 01-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MEEL
• Assessee Lawyers: V K GOEL
• Keywords: Opportunity of being heard
• Section: 44AD; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3026/DEL/2018 ASSESSMENT YEAR: 2010-11 SACHIN KAUSHIK VS. ITO, WARD-2(3), C/O SH. VINOD KUMAR GOEL, MEERUT ADVOCATE, 282, BOUDRY ROAD, CIVIL LINES, MEERUT (PAN: AHIPK9361P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. V.K. GOEL, ADV. REVENUE BY : SH. PRADEEP KUMAR MEEL. SR. D R. ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 19.3.2018 OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS), MEERUT RELEVANT TO ASSESSMENT YEAR 2010- 11. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THAT NOTICE ISSUED BY AO UNDER SECTION 148 WAS HAVING INCOMPLETE ADDRESS THEREFORE SERVICE OF NOTICE U/S. 148 WAS NOT POSSIBLE. COPY OF CERTIFI ED COPY OF REASONS AND NOTICE U/S. 148 PROVIDED BY AO IS ALSO SUPPORTED THE CONTENTION OF THE ASSESSEE THEREFORE WITHOUT SERVICE OF NOTICE U/S. 148 AND ASSESSMENT MADE U/S. 144/148 OF IS BAD IN LAW. 2. THAT ORDER U/S. 144/148 IS MADE ON COMPLETE ADDRESS OF THE ASSESSEE THEREFORE THE AO IS HAVING CORRECT ADDRESS OF THE ASSESSEE. EVEN THEN THE HAS 2 NOT MADE PROPER SERVICE OF NOTICE U/S. 148. THEREFORE, THE ASSESSMENT IN CORRECT FACT IS ALSO BAD IN LAW. 3. THAT THE ASSESSEE HAS MADE CASH DEPOSIT OF RS. 27,13,500/- RELATING TO SALE OF BOOKS. THEREFORE, I N ABSENCE OF BOOKS OF ACCOUNTS, NET PROFIT CAN BE ASSESSED @ 8% U/S. 44AD OF INCOME TAX ACT, 1961. 4. THAT THE INVESTMENT IN NAME OF MANSUKH SECURITIE S RELATING TO CASH DEPOSIT WAS RELATED TO VARIOUS CLIENTS FOR WHOM HE WAS ACTING AS SUB BROKER AND AS THE CLIENT SUFFERED LOSS HENCE NO PROFIT WAS ARRIVED FROM THE SALE. 5. THAT THE ASSESSEE HAS RIGHT TO ADD, MODIFY OR DELETE ANY GROUND DURING THE APPEAL PROCEEDINGS. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. DURING THE HEARING, LD. A.R. OF THE ASSESSEE, HA S STATED THAT AO HAS PASSED THE EXPARTE ORDER DATED 28.11.2017 U/ S. 144/148 OF THE INCOME TAX ACT, DESPITE THE FACT THAT THAT NOTI CE ISSUED BY AO UNDER SECTION 148 WAS HAVING INCOMPLETE ADDRESS THE REFORE SERVICE OF NOTICE U/S. 148 WAS NOT POSSIBLE. HE FURTHER SUB MITTED THAT COPY OF CERTIFIED COPY OF REASONS AND NOTICE U/S. 148 PROVIDED BY AO IS ALSO SUPPORTED THE CONTENTION OF THE ASSESSEE THER EFORE WITHOUT SERVICE OF NOTICE U/S. 148 AND ASSESSMENT MADE U/S. 144/148 OF IS BAD IN LAW. HE FURTHER SUBMITTED THAT THE ORDER U /S. 144/148 IS MADE ON COMPLETE ADDRESS OF THE ASSESSEE THEREFOR E THE AO IS HAVING CORRECT ADDRESS OF THE ASSESSEE. EVEN THEN H E HAS NOT MADE PROPER SERVICE OF NOTICE U/S. 148. 3 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I HAVE ALSO GONE THROUGH THE ORDER PASSED BY THE REVE NUE AUTHORITIES AS WELL AS THE CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. I FIND FORCE IN THE ARGUMENTS OF THE LD. CO UNSEL OF THE ASSESSEE THAT AO HAS COMPLETED THE ASSESSMENT U/S. 144/148 OF THE INCOME TAX ACT, DESPITE THE FACT THAT NOTICE ISSUE D BY AO UNDER SECTION 148 WAS HAVING INCOMPLETE ADDRESS THEREFORE SERVICE OF NOTICE U/S. 148 WAS NOT POSSIBLE. I FURTHER FIND TH AT THE COPY OF CERTIFIED COPY OF REASONS AND NOTICE U/S. 148 PROVI DED BY AO IS ALSO SUPPORTED THE CONTENTION OF THE ASSESSEE THEREFORE WITHOUT SERVICE OF NOTICE U/S. 148 AND ASSESSMENT MADE U/S. 144/148 IS NOT TENABLE. THEREFORE, IN THE INTEREST OF JUSTICE, THE ISSUES I N DISPUTE ARE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE AFRESH UN DER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FILE ALL THE NECESSARY DOCUMENTS TO SUBSTANTIATE HIS CASE AND FULLY COOPERATE WITH THE AO IN THE PROCEEDINGS AND DID NOT TAKE ANY UNNECESSARY ADJOUR NMENT. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 24-10-2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 24-10-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI. 4