Narender Singh Surana, Ghaziabad V. ITO, New Delhi

ITA 3108/DEL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6604 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 02-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 17-05-2013
• Court: TRIBUNAL
• Assessee Lawyers: K SAMPATH SHRI RAJA KUMAR
• Keywords: Search and seizure; Period of limitation
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E, NEW DELHI) BEFORE SHRI J. S. READY, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER ITA NO. 3108/DEL/13 (ASSESSMENT YEAR 2009-10) NARENDER SINGH SURANA VS. ACIT FLAT NO. 705, 7 TH FLOOR, NEW DELHI NEELAMBER-II, KAUSHAMBI, GHAZIABAD. PAN : ABIPS0480K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. SAMPATH, ADVOCATE. SHRI RAJA KUMAR, ADVOCATE. RESPONDENT BY : SHRI RAJESH KUMAR, SR. DR. DATE OF HEARING : 02.11.2016 DATE OF PRONOUNCEMENT : 30.11.2016 ORDER PER BEENA A. PILLAI, JM: 1. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 31/03/2013 PASSED BY THE LD . CIT (A) 12, NEW DELHI FOR ASSESSMENT YEAR 2009-10 ON TH E FOLLOWING GROUNDS OF APPEAL: 1. IN PASSING ORDER U/S 144 OF THE INCOME-TAX ACT, 1961 WHICH WAS WITHOUT JURISDICTION AS STATUTORY NOTICES U/S 143 (2) AND SECTION 144 OF THE ACT WERE NEVER SERVED ON THE ASSESSEE; 2. IN MAKING AN ADDITION OF RS.42,73,997/-UNDER TH E HEAD 'LONG TERM CAPITAL GAIN' BY ADOPTING THE COST OF CONSTRUCTION OF THE BUILDING IN THE YEAR OF PURCHAS E AT 2 I.T.A. NO. 3108/DEL/2013 RS.1,35,000/-AS AGAINST ACTUAL OF RS.30 LACS DECLAR ED BY THE ASSESSEE; 3. IN CONSTRUING THE SALE CONSIDERATION IN A SUM OF RS. 1,12,54,0007-AGAINST THE ACTUAL OF RS. 95 LACS DECL ARED BY THE ASSESSEE. 2. THE BRIEF FACTS OF THE CASE ARE AS UNDER: ASSESSEE IS AN INDIVIDUAL AND HAD FILED HIS RETURN OF INCOME ON 9/12/2009 DECLARING A TOTAL INCOME OF RS. 5, 15, 1600/-. THE RETURN WAS PROCESSED UNDER SECTION 143 (1) AND SUBSEQUENTLY SELECTED FOR SCRUTINY UNDER CSS. ACCOR DING TO THE ASSESSMENT ORDER NOTICE UNDER SECTION 143 (2) W AS SENT BY HIS POST AND THEREAFTER SERVED UPON BY AFFIXTURE ON 30/09/2010 AT THE LAST KNOWN ADDRESS OF THE ASSESSE E. ON 8/11/2011 REPRESENTATIVE OF THE ASSESSEE APPEARED B EFORE THE LD.AO AND FILED COPY OF THE RETURN ALONG WITH COMPUTATION. AGAIN ON 16/11/2011 THE REPRESENTATIVE OF THE ASSESSEE RECEIVED THE COPY OF THE AIR INFORMATI ON AND ON 29/11/2011 CHIEF FILED ON BEHALF OF ASSESSEE BAN D AND CERTIFICATE FROM THE BANK ON LOAN. THE LD.AO ADJOUR NED THE CASE TO 5/12/2011. 3. THE LD. AO THEREAFTER CALLED FOR INFORMATION FROM THE SUB REGISTRAR-IV, GHAZIABAD VIDE LETTER DATED 30/11 /2011, ON THE SALE OF PROPERTY MENTIONED AS PER THE AIR INFORMATION. THE LD. AO GAVE FINAL OPPORTUNITY ON 21/12/2011 TO THE ASSESSEE TO ATTEND THE PROCEEDING S. IN RESPONSE TO THIS LETTER THE ASSESSEE FILED A LETTER DATED 22/12/2011 IN WHICH HE HAD SOUGHT TO EXPLAIN AND DE NY THE ALLEGED SALE OF PROPERTY. IN THE SAID LETTER AS SESSEE HAD 3 I.T.A. NO. 3108/DEL/2013 ALSO DISPUTED THE NAME THAT APPEARED IN THE AIR INFORMATION AS NOT BEING THE ASSESSEE UNDER CONSIDE RATION. THE LD. AO AGAIN FIXED THE CASE FOR HEARING ON 26/1 2/2011 AS NONE APPEARED ON THE EVEN DATE NOR ANY REPLY WAS RECEIVED FROM THE ASSESSEE ON 27/12/2011 A FINAL RE MINDER WAS ISSUED TO THE ASSESSEE TO APPEAR ON 29/12/2011. NONE APPEARED ON 29/12/2011 AND THEREFORE THE AO PROCEED ED TO PASS THE ASSESSMENT ORDER. HE DISPOSED OF THE OBJEC TION OF THE ASSESSEE REGARDING NON-RECEIPT OF NOTICE UNDER SECTION 143 (2) AND THE SAME HAS BEEN SERVED UPON THE ASSES SEE BEYOND THE PERIOD OF LIMITATION ON 21/12/2011. THE LD. AO DID NOT ACCEPT THIS OBJECTION AS HE OPINED THAT THE NOTICE HAS BEEN SERVED ON 30/09/2011 BY A FIXTURE AND WAS WITHIN THE STATUTORY TIME LIMIT AS PER THE ACT THE LD. AO PASS AN ASSESSMENT ORDER UNDER SECTION 143 (3) READ WITH 14 4 OF THE ACT AND MADE AN ADDITION OF RS.74,95,600/-IN THE HA NDS OF THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF THE LD.AO THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A) WHEREIN TH E PRELIMINARY OBJECTION REGARDING ASSUMING THEIR JURI SDICTION TO PASS THE ASSESSMENT ORDER WAS CHALLENGED AS THE ASSESSEE HAD NOT RECEIVED THE NOTICE UNDER SECTION 143 (2) WITHIN TIME. THE LD. CIT (A) REJECTED THIS OBJECTIO N OF THE ASSESSEE AND CONFIRMED THE ADDITION MADE BY THE LD. AO. 5. AGGRIEVED BY THE ORDER OF THE LD. CIT (A) THE ASSE SSEE IS IN APPEAL BEFORE US NOW THE LD.AR SUBMITTED THAT TH E ASSESSING OFFICER HAD NO JURISDICTION TO PASS ANY O RDER AS NO 4 I.T.A. NO. 3108/DEL/2013 NOTICE UNDER SECTION 143 (2) OF THE ACT WAS SERVED UPON THE ASSESSEE WITHIN THE STATUTORY PERIOD AND DISCHARGED UNDER SECTION 143 (2) (III) OF THE ACT HE SUBMITTED THAT THE NOTICE UNDER SECTION 143 (2) WAS SERVED UPON HIM ON 23/09/ 2011 WHICH IS BEYOND THE PERIOD OF LIMITATION. THE LD.AO HAS SUBMITTED BEFORE US A SMALL COMPILE ASIAN OF SUPPLE MENTARY PAPER BOOK WHICH CONTAINS THE COPY OF INFORMATION S OUGHT BY THE ASSESSEE UNDER THE RIGHT TO INFORMATION ACT. HE SUBMITTED THAT THE APPLICATION UNDER RIGHT TO INFOR MATION ACT WAS MADE ON 10/02/2016 FILED BY THE ASSESSEE WH ICH WAS DISPOSED OF BY THE CPIO AND ITO WARD 24 (2) ON 03/03/2016. THE ASSESSEE HAD SOUGHT INFORMATION IN RESPECT OF THE SERVICE OF NOTICE UNDER SECTION 143 (2) FOR THE YEAR UNDER CONSIDERATION IN CASE OF ASSESSEE. 6. THE LD. AR SUBMITTED THAT ASSESSEE HAD FILED ITS R ETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WHEREIN THE ADDRESS HAS BEEN MENTIONED AS FLAT NO. 705, 7 TH FLOOR, NEELABMER-II, KAUSHAMBI, GHAZIABAD, UTTAR PRADESH-1 1 (PLACED AT 69 TO 70 OF THE SUPPLEMENTARY PAPER BOOK ). THE LD.AR SUBMITTED THAT THE NAME OF THE ASSESSEE AS AP PEARING ON THE RETURN OF INCOME IS, NARENDRA SINGH SURANA W HEREAS THE DETAILS ON THE NOTICE UNDER SECTION 143 (2) REA DS AS SH. NARINDER SINGH SHARMA AND THE ADDRESS TO BE A-35, CHANDER NAGAR, GHAZIABAD, (UP) (PLACED AT 68 AND 71 OF THE SUPPLEMENTARY PAPER BOOK). 7. HE FURTHER SUBMITTED THAT THE LD. AO HAD BY WAY OF A FIXTURE OF FIXED THE NOTICE UNDER SECTION 143 (2) O N 5 I.T.A. NO. 3108/DEL/2013 29/9/2010 ON THE ADDRESS AT CHANDER NAGAR AND SUBSEQUENTLY ON 23/09/2011 THE LD. AO AFTER ENQUIRY CAME TO KNOW ABOUT THE OFFICE ADDRESS OF THE ASSESSEE BE ING SARITA ELECTRONICS PVT. LTD., SITUATED AT 1649, 4 TH FLOOR, MEANWHILE THAT PAHARGANJ NEW DELHI. HE THUS SUBMITT ED THAT IT WAS THEN THAT THE AO COULD HAND OVER THE NO TICE UNDER SECTION 143 (2) IN THE NAME OF NARENDER SINGH SHARMA HAVING A WRONG ADDRESS TO THE ASSESSEE BEFOR E US. 8. THE LD. AR THUS IN THE CIRCUMSTANCES SUBMITTED THA T THE ASSESSING OFFICER DOES NOT HAVE ANY JURISDICTIO N TO PASS THE IMPUGNED ASSESSMENT ORDER AND PRAYED FOR SETTIN G ASIDE THE SAME. 9. ON THE CONTRARY THE LD. DR SUBMITTED THAT THE SERV ICE OF NOTICE WAS EFFECTED BY SPEED POST AND AS THE ASS ESSEE PARTICIPATED IN THE ASSESSMENT PROCEEDINGS BY VIRTU E OF SECTION 292B OF THE ACT WITH TECHNICAL HURDLES SHOU LD NOT BE CONSIDERED REGARDING NON-ISSUANCE OF THE NOTICE UND ER SECTION 143 (2) BEYOND THE PERIOD OF LIMITATION. HE SUBMITTED THAT ON INITIAL APPEARANCES OF THE REPRES ENTATIVE ON BEHALF OF THE ASSESSEE THERE WAS NO OBJECTION RA ISED IN RESPECT OF NON RECEIPT OF THE NOTICE UNDER SECTION 143 (2) AND THE SUBSEQUENT OBJECTION WAS AN AFTERTHOUGHT BY THE ASSESSEE. THE LD. DR SUPPORTED THE ORDERS PASSED BY THE PARTIES BELOW. 10. WE HAVE PERUSED THE CONTENTIONS RAISED BY BOTH THE SIDES IN THE LIGHT OF THE RECORDS PRESENTED BEFORE US. THERE IS NO DOUBT THAT THE NOTICE UNDER SECTION 143 (2) HAS BEEN 6 I.T.A. NO. 3108/DEL/2013 ISSUED BEYOND THE PERIOD OF 6 MONTHS FROM THE END O F THE ASSESSMENT YEAR IN WHICH THE ORIGINAL RETURN OF INC OME HAS BEEN FILED. IT IS ALSO OBSERVED THAT THE NAME AND A DDRESS APPEARING ON THE NOTICE UNDER SECTION 143 (2) IS NO T THE ASSESSEE BEFORE US. THE ASSESSEE HAS SUBMITTED THE EXTRACT OF THE SPEED POST BOOKING LIST AS ON 20/8/2010 WHER EIN CERTAIN DOCUMENT HAS BEEN DISPATCHED TO SH. NARENDE R SINGH SHARMA HAVING ADDRESS AT GHAZIABAD (UP). ON PERUSAL OF THE RETURN OF INCOME FILED BY THE ASSESS EE WE NOTE THAT THE ASSESSEE IS NOT THE SAME PERSON AS MENTION ED IN THE DISPATCH LIST, NOTICE ISSUED UNDER SECTION 143 (2) AND THE INTIMATION OF THE LD. AO REGARDING A FIXTURE OF THE NOTICE PLACED AT PAGE 68. IT IS ALSO NOTICED FROM THE FIXT URE INTIMATION REGARDING THE PREMISES, WHERE SUCH A FIX TURE WAS MADE. FURTHER THERE IS NO MENTION REGARDING WHO IDE NTIFIED THE PREMISES WHERE THE NOTICE WAS FIXED AND THE NAM E AND ADDRESS OF THE PERSON WITNESSING SUCH A FIXTURE. 11. A PERUSAL OF SUB SECTION 2 TO SECTION 143 REVEALS THAT THE NOTICE UNDER THIS SECTION IS NOT ONLY TO BE ISS UED BUT HAS TO BE SERVED BEFORE THE EXPIRY OF 6 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN WAS FURNI SHED. IN THE PRESENT CASE NO VALID NOTICE HAS BEEN SERVED UP ON THE ASSESSEE WITHIN THE PRESCRIBED PERIOD AND WAS SERVE D MUCH BEYOND THE PERIOD OF 6 MONTHS WHICH IS NOT A VALID SERVICE IN THE EYES OF LAW. IT HAS BEEN ARGUED BY THE LD. D R THAT EVEN IF THE NOTICE UNDER SECTION 143 (2) WAS NOT PR OPERLY SERVED ON THE NOTICEE SHOULD BE TREATED AS A DEFECT AND SUCH IRREGULARITIES CURABLE UNDER SECTION 292B OF THE AC T. 7 I.T.A. NO. 3108/DEL/2013 12. WE ARE AFRAID THAT RESORT CANNOT BE HAD TO THE SPE CIFIC PROVISION TO VALIDATE THE MANDATORY REQUIREMENT OF SERVICE AS POSTULATED UNDER SECTION 143 (2) OF THE ACT WHER E THERE IS A SPECIFIC REQUIREMENT OF SERVICE ON THE ASSESSEE A ND THE SAME HAS NOT BEEN COMPLIED WITH, CANNOT BE SURE IT AS A MERELY DEFECT UNDER SECTION 292B. 13. ON THE BASIS OF THE ABOVE DISCUSSION WE HOLD THAT NO VALID NOTICE UNDER SECTION 143 (2) HAS BEEN SERVED UPON THE ASSESSEE WITHIN THAT TIME PRESCRIBED AND THEREFORE THE ASSESSMENT MADE BY THE ASSESSING OFFICER IS INVALID . 14. THE ASSESSEES APPEAL HAS BEEN HELD ON THE LEGAL I SSUE WHERE IN THE ASSESSMENT ORDER PASSED BY THE ASSESSI NG OFFICER HAS BEEN QUASHED WE DO NOT WISH TO DECIDE T HE UP GROUND NO. 2 AND 3 ON MERITS. 15. ACCORDINGLY THE APPEAL FILED BY THE ASSESSEE STAND S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER, 2016. SD/- SD/- (J.S.SAINI) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 30.11.2016 @M!T.