Sunita Devi Brijmohan Taparia, Ahmednagar V. Income-tax Officer,

ITA 308/PUN/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1157 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 24-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: ROHIT S MUTHA
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 142(1); 133(6); 148

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 308 /PN/201 5 / ASSESSME NT YEAR : 20 05 - 06 SUNITA DEVI BRIJMOHAN TAPARIA, SARDA HOUSE, SARDA LANE, AHMEDNAGAR, . / APPELLANT PAN: A AJPT1617R VS. THE INCOME TAX OFFICER , WARD - 2, AHMEDNAGAR . / RESPONDENT / APPELLANT BY : S HRI ROHIT S. MUTHA / RESPONDENT BY : SHRI P.L. KUREEL, ADDL.CIT / DATE OF HEARING : 19 . 0 7 .201 6 / DATE OF PRONOUNCEMENT: 05 . 0 8 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - IT/TP , PUNE , DATED 13 . 0 2 .20 1 4 RELATING TO ASSESSMENT YEAR 20 05 - 06 AGAINST ORDER PASSED UNDER SECTION 14 3(3) R.W.S. 147 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUN DS OF APPEAL: - 1. LOWER AUTHORITIES HAVE ERRED BOTH ON FACTS AS WELL AS I N LAW IN UPHOLDING THE ADDITION MADE BY THE ASSESSING OFFICER. 2. THAT THE APPELLATE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS BEEN PASSED WITHOUT PROPERLY APPRECIATING ITA NO. 308 /PN/20 1 5 SUN ITA DEVI BRIJMOHAN TAPARIA 2 THE FACTS OF THE CASE AND IGNORING THE MATERIAL FACTS APPARENT FROM THE FACE OF THE RECORD. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO CONSIDER NECESSARY EVIDENCES AND OTHER MATERIAL BROUGHT ON RECORD BY THE ASSES SEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS NEITHER CONTRADICTED THE SUBMI S SION OF THE ASSESSEE NOR HAS BROUGHT ON RECORD ANY OTHER MATERIAL IN SUPPORT OF HIS FINDINGS THAT THE MONEY FOUND TO HAVE BEEN DEPOSITED IN THE BANK ACCOUNT REALLY BELONGED TO THE ASSESSEE, WHEREAS, THE ASSESSEE HAS BEEN REPEATEDLY DENYING ITS DEPOSIT IN THE BANK ACCOUNT. 5. THAT THE EXPARTE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DESERVES TO BE CANCELLED AS THE ASSESSEE HAS NOT BEEN GIVEN OPPORTUNITY OF BEING HEARD IN THE MATTER. 3. THE ASSESSEE HAS FURTHER RAISED THE ADDITIONAL GROUNDS OF APPEAL, WHICH READ AS UNDER: - 1 . PROCEEDING U/S 148 ARE BAD - IN - LAW AND WITHOUT JURISDICTION. 2 . PROCEEDING A ND ORDER PASSED U/S 143(3) R.W.S. 147/148 IS BAD - IN - LAW AND WITHOUT JURISDICTION AND IS TIME BARRED. 3 . CIT(A) ORDER IS WITHOUT PROVIDING COPY OF REMAND REPORT AND OPPORTUNITY TO REBUT, HENCE SHORT OF NATURAL JUSTICE. 4. THE ADDITIONAL GROUNDS OF APPEAL RAI SED BY THE ASSESSEE ARE PURELY LEGAL AND HENCE, THE SAME ARE ADMITTED AT THE INSTANCE OF THE ASSESSEE. THE PLEA OF THE ASSESSEE BEFORE THE TRIBUNAL IS THAT THE PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT ARE BAD IN LAW AND WITHOUT JURISDICTION AND FURTHER, PROCEEDINGS AND ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT WAS WITHOUT JURISDICTION, WAS TIME BARRED AND WAS BAD IN LAW. 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FILED HER RETURN OF INCOME ON 01.12.2005 WITH THE ITO, AT AHMEDNAGAR. THE ASSESSEE RECEIVED NOTICE UNDER SECTION 142(1) OF THE ACT ON 24.12.2007 FROM THE DCIT, CIRCLE - 1, AGRA ASKING THE ASSESSEE TO FURNISH THE RETURN OF INCOME FOR THE INSTANT ASSESSMENT YEAR. V IDE LETTER DATED 28.12.2007 ADDRESSED TO THE DCIT, CIRCLE - 1, AGRA, THE ASSESSEE INFORMED THAT SHE WAS ASSESSED IN WARD 2, ITA NO. 308 /PN/20 1 5 SUN ITA DEVI BRIJMOHAN TAPARIA 3 AHMEDNAGAR AND THAT SHE HAD ALREADY FILED HER RETURN OF INCOME FOR ASSESSMENT YEAR 2005 - 06 ON 01.12.2005 WITH ITO, WARD - 2, AHMEDNAGAR VIDE ACKNOWLEDGEMENT NO.007730. THE SAID NOTIC E UNDER SECTION 142(1) OF THE ACT WAS ISSUED ON ACCOUNT OF DEPOSIT IN SAVINGS BANK ACCOUNT WITH SYNDICATE BANK. THE DCIT, AGRA TRANSFERRED THE CASE TO THE ITO, WARD - 2, AHMEDNAGAR AND HE ISSUED THE NOTICE UNDER SECTION 143(2) AND 142(1) OF THE ACT ON 27.07 .2007 TO FURNISH THE DOCUMENTS, ACCOUNTS AND OTHER EVIDENCES IN SUPPORT OF THE RETURN FILED BY THE ASSESSEE. IN RESPONSE, THE ASSESSEE SUBMITTED THAT INFORMATION AS RECEIVED BY AIR DENOTES TO SOMEBODY ELSE AS NEITHER THE ASSESSEE WAS MAINTAINING ANY BANK ACCOUNT IN SYNDICATE BANK, KARNATAKA NOR SHE MADE ANY CASH DEPOSITS IN SYNDICATE BANK. THE ASSESSING OFFICER, AHMEDNAGAR CALLED FOR INFORMATION UNDER SECTION 133(6) OF THE ACT FROM THE SAID BANK AT MANIPAL, KARNATAKA, WH ICH IN TURN, FURNISHED PHOTO COPY O F PAY - IN - SLIP OF DEPOSIT OF RS.9 LAKHS ON 12.04.2004 AND RS.7 LAKHS ON 24.05.2004 AS WELL AS LEDGER EXTRACT OF ACCOUNT MAINTAINED IN THE NAME OF SMT. SUNITA BRIJMOHAN TAPARIA FOR THE ACCOUNT MAINTAINED IN THE NAME OF SMT. SUNITA BRIJMOHAN TAPARIA FOR THE PERIOD 01.04.2004 TO 11.11.2009. FURTHER , INFORMATION WAS CALLED FROM SY NDICATE BANK RAIPURAJAT BRANCH, DISTRICT MATHURA (UP) TO FURNISH THE ACCOUNT OPENING FORM IN RESPECT OF SAID BANK ACCOUNT AS IT WAS TRANSFERRED FROM THERE TO KARNATAKA. THE ASSESSEE IN REPLY, FURNISHED AN AFFIDAVIT STATING THAT SHE HAD NO BANK ACCOUNT WIT H SYNDICATE BANK. THE ASSESSEE FAILED TO APPEAR ON NEXT DATE OF HEARING AND SUM OF RS.16 LAKHS WAS ADDED AS UNEXPLAINED INVESTMENT BY THE ASSESSING OFFICER. 6. BEFORE THE CIT(A), THE ASSESSEE CHALLENGED THE VALIDITY OF RE - ASSESSMENT PASSED AND IT WAS CON TENDED THAT THE SAME WAS WITHOUT JURISDICTION AND HENCE INVALID AS NOTICE ISSUED UNDER SECTION 148 OF THE ACT WAS NOT SERVED UPON THE ASSESSEE. THE CIT(A) CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER AND ASKED HIM TO FURNISH COPY OF NOTICE ISSUED U NDER SECTION ITA NO. 308 /PN/20 1 5 SUN ITA DEVI BRIJMOHAN TAPARIA 4 148 OF THE ACT. IN THE REMAND REPORT, THE ASSESSING OFFICER STATED THAT THE ASSESSEE HAD ACKNOWLEDGED THE PROCEEDINGS INITIATED AGAINST HER UNDER SECTION 148 OF THE ACT BY SUBMITTING A LETTER AND IN VIEW OF THE SAME, THE ASSESSING OFFICER SUB MITTED THAT NOTICE UNDER SECTION 148 OF THE ACT WAS SERVED UPON THE ASSESSEE AND HENCE, THE ASSESSMENT ORDER WAS VALID. THE CIT(A) NOTED THAT THE CONTEMPORANEOUS EVIDENCE SUGGESTS THAT THE NOTICE WAS SERVED UPON THE ASSESSEE AND AS THE ASSESSEE IN HER LET TER ACKNOWLEDGED THE PROCEEDINGS UNDER SECTION 148 OF THE ACT, WHICH WERE INITIATED AGAINST HER. IT WAS ALSO POINTED OUT BY THE CIT(A) THAT THE SAID NOTICE WAS SENT BY SPEED POST. SINCE THE ASSESSEE HA D APPEARED BEFORE THE ASSESSING OFFICER DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, THE CONTENTION OF ASSESSEE WAS REJECTED, IN VIEW OF PROVISIONS OF SECTION 292BB OF THE ACT. THE ADDITION ON MERITS WAS ALSO UPHELD IN THE HANDS OF ASSESSEE. 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE THE 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE THE TRIBUNAL HAS CHALLENGED THE PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT AND HAS ALSO CHALLENGED THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. IT WAS PUT TO THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AS TO W HY HE DID NOT APPEAR BEFORE THE CIT(A). BY WAY OF WRITTEN SUBMISSIONS, THE ASSESSEE EXPLAINED THE REASONS FOR NON - APPEARANCE ON TWO DATES OF HEARING FIXED BEFORE THE CIT(A) . SHE ALSO HAS MENTIONED THAT WHEN ENQUIRED FROM THE OFFICE OF CIT(A) REGARDING NE XT DATE OF HEARING, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS TOLD THAT THE REMAND REPORT IS CALLED FOR AND ON RECEIPT OF THE SAME, THE DATE OF HEARING WOULD BE COMMUNICATED, WHICH WAS NOT SO COMMUNICATED AND THE ORDER WAS PASSED . THE ASS ESSEE HAS ALSO FURNISHED WRITTEN SUBMISSIONS WHICH ARE PLACED ON RECORD. ITA NO. 308 /PN/20 1 5 SUN ITA DEVI BRIJMOHAN TAPARIA 5 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ASSESSING OFFICER AT AGRA, WHERE THE ASSESSEE WAS STAYING HAD NO KNOWLEDGE THAT THE ASSESSEE WAS FURNI SHING THE RETURN OF INCOME AT AHMEDNAGAR. FURTHER, HE HAD ISSUED THE AFORESAID NOTICE UNDER SECTION 148 OF THE ACT SINCE THE ASSESSEE WAS IN HIS JURISDICTION. 9. ON PERUSAL OF RECORD AND VARIOUS WRITTEN SUBMISSIONS FILED BY THE ASSESSEE, THE ISSUE TO BE CONSIDERED IS IN CONNECTION WITH THE PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT BY THE DCIT, AGRA AND THE PROCEEDINGS AND THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AT AHMEDNAGAR UNDER SECTION 143(3) R.W.S. 14 7 OF THE ACT. THE ASSESSEE F OR MANY YEARS WAS ASSESSED AT AHMEDNAGAR AND WAS REGULARLY FILING THE RETURN OF INCOME AT AHMEDNAGAR. THE PAN CARD WAS ALSO ISSUED TO THE ASSESSEES ADDRESS IN AHMEDNAGAR, WHICH W AS HER PARENTAL HOME . A FTER MARRIAGE, SHE WAS RESIDING AT AGRA BUT HAD CONT INUED TO FILE THE RETURN OF INCOME AT AHMEDNAGAR AND THERE AT AGRA BUT HAD CONT INUED TO FILE THE RETURN OF INCOME AT AHMEDNAGAR AND THERE WAS NO CHANGE IN THE JURISDICTION OF ASSESSEE BY ANY ORDER OF ANY OF THE AUTHORITIES. THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION HAD FILED THE RETURN OF INCOME ON 01.12.2005 WITH THE ITO, WARD - 2, AHMEDNAGAR. THE ITO AT AGRA HAD RECEIVED CERTAIN INFORMATION THROUGH AIR AND HAD ISSUED A NOTICE UNDER SECTION 148 OF THE ACT . W ITHOUT GOING INTO THE ISSUE OF SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT UPON THE ASSESSEE , WHICH IS BEING CHALLENGED BY THE ASSESSEE, THE CONSEQUENT EVENTS NEED TO BE LOOKED INTO AFTER THE ISSUE OF AFORESAID NOTICE UNDER SECTION 148 OF THE ACT. THE ITO AT AGRA HAD ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT DATED 13.05.2009 ASKING THE ASSESSEE TO FILE RETURN OF INCOME BEFORE 01.06.2009. IN REPLY, THE ASSESSEE POINTED OUT THAT SHE WAS ASSESSED TO TAX SINCE LONG TIME AT AHMEDNAGAR AND FOR THE YEAR UNDER CONSIDERATION ALSO WITH THE ITO, WARD - 2, AHMEDNAGAR. THE DCIT, CIRCLE - 1, AGRA THEREAFTER, TRANSFERRED THE INFORMATION TO THE ITO, WARD - 2, AHMEDNGAR, ITA NO. 308 /PN/20 1 5 SUN ITA DEVI BRIJMOHAN TAPARIA 6 WHO ADMITS THAT THE CASE WAS RECEIVED ON TRANSFER FROM AGRA ON 27.07.2009. THEREAFTER, THE NOTICES UNDER SECTION 143(2) AND 142(1) OF THE ACT WERE ISSUED ON 27.07.2009 TO FURNISH THE DOCUMENTS, ETC. THE COPY OF LETTER OF D CIT, CIRCLE - 1, AGRA, DATED 21.07.2009 IS PLACED AT PAGE 5 OF THE PAPER BOOK, IN WHICH HE ACKNOWLEDGES THAT THE ASSESSEE WAS FILING HER RETURN OF INCOME WITH THE ITO, WARD - 2, AHMEDNAGAR FOR PAST MANY YEARS AND FOR THE RELEVANT ASSESSMENT YEAR ALSO, THE INCO ME TAX RETURN WAS FILED AT AHMEDNAGAR. HE FURTHER STATES THAT SINCE THE JURISDICTION OF ASSESSEE WAS WITH THE ITO, AHMEDNAGAR, PROCEEDINGS UNDER SECTION 148 OF THE ACT ARE BEING TRANSFERRED. IT WAS ALSO INFORMED THAT THE PROCEEDINGS WILL GET TIME BARRED ON 31.12.2009. AT THE FIRST JUNCTURE, WHERE THE ASSESSEE WAS ALREADY BEING ASSESSED WITH THE ITO, WARD - 2, AHMEDNAGAR AND HAD PAN NUMBER WAS ISSUED AT AHMEDNAGAR, THE PROCEEDINGS INITIATED BY THE DCIT, CIRCLE - 1, AGRA ARE WITHOUT ANY JURISDICTION. MERELY BECAUSE SOME INFORMATION WAS RECEIVED FROM AIR AND / OR THE ASSESSEE RESIDING IN AGRA DOES NOT DECIDE THE JURISDICTION OF THE CASE, WHERE THE RESIDING IN AGRA DOES NOT DECIDE THE JURISDICTION OF THE CASE, WHERE THE ASSESSEE W AS REGULARLY FILING HER RETURNS WITH ITO, AHMEDNAGAR AND WAS BEING ASSESSED AT AHMEDNAGAR FOR THE PAST SEVERAL YEARS. IN ORDER TO CHANGE THE JURISDICTION, NECESSARY ORDERS OF COMMISSIONER OF CHIEF COMMISSIONER ARE REQUIRED, WHICH ADMITTEDLY ARE MISSING IN THIS CASE AND IN THE ABSENCE OF THE SAME, THE DCIT, CIRCLE - 1, AGRA HAD NO JURISDICTION TO ISSUE NOTICE UNDER SECTION 148 OF THE ACT. EVEN IF THE SAID NOTICE UNDER SECTION 148 OF THE ACT HAS BEEN SO ISSUED BY DCIT, CIRCLE - 1, AGRA, THERE IS NO MERIT IN THE TRANSFER OF PROCEEDINGS FROM AGRA TO AHMEDNAGAR . S INCE THE ASSESSMENT IN THE PRESENT CASE HAS BEEN CO MPLETED BY PASSING AN ORDER UNDER SECTION 143(3) R.W.S. 147 OF THE ACT BY THE ITO, WARD - 2, AHMEDNGAR, WHO HAD NOT INITIATED THE PROCEEDINGS UNDER SECTION 148 OF THE ACT AND WHERE THE PROCEEDINGS INITIATED BY THE DCIT, CIRCLE - 1, AGRA UNDER SECTION 148 OF TH E ACT ARE VITIATED, THERE IS MERIT IN THE CLAIM OF ASSESSEE IN THIS REGARD AND THE PROCEEDINGS COMPLETED BY WAY OF ASSESSMENT ORDER ITA NO. 308 /PN/20 1 5 SUN ITA DEVI BRIJMOHAN TAPARIA 7 PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT ARE INVALID. ACCORDINGLY, IT IS HELD SO AND THE ADDITIONAL GROUNDS OF APP EAL RAISED BY THE ASSESSEE ARE ALLOWED. SINCE THE ASSESSMENT IS HELD TO BE INVALID, THERE IS NO REQUIREMENT TO ADDRESS THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ON MERITS OF THE CASE. 1 0 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW E D. ORDER PR ONOUNCED ON THIS 5 TH DAY OF AUGUST , 201 6 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 5 TH AUGUST , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPO NDENT; 2. / THE RESPO NDENT; 3. ( ) / THE CIT(A) - IT/TP , PUNE ; 4. / THE CIT - 1 , PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE COP Y // / SR. PRIVATE SECRETARY , / ITAT, PUNE