Varun Sharma, New Delhi V. ITO, New Delhi

ITA 3137/DEL/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6613 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 04-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 24-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K RAVI RAM CHANDRAN
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI, DELHI, DELHI, DELHI, BENCH BENCH BENCH BENCH H HH H , NEW DELHI NEW DELHI NEW DELHI NEW DELHI BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER AND SHRI K. D. RANJAN, ACCOUNTANT MEMBER ITA NO. 3137 /DEL/2010 (ASSESSMENT YEAR 2004-05) SHRI VARAUN SHARMA, VS. ITO, WARD 4(4), A-39, VASANT MARG, NEW DELHI. VASANT VIHAR, NEW DELHI. (APPELLANT) (RESPONDENT) PAN AAOPS1513L APPELLANT BY: SHRI VED JAIN, CA RESPONDENT BY: SHRI K. RAVI RAMCHANDRAN, SR. DR ORDER ORDER ORDER ORDER PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: 1. THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT Y EAR 2004-05 ARISES OUT OF THE ORDER OF LD. CIT(A) VII, NEW DELH I. 2. AT THE OUTSET LD. A.R. FOR THE ASSESSEE SUBMITTE D THAT THE ASSESSMENT MADE IN PURSUANCE TO THE NOTICE U/S 148 READ WITH SECTION 147 IS BAD IN LAW ON THE GROUND THAT NO ADD ITION HAS BEEN MADE ON THE BASIS OF WHICH ASSESSMENT WAS REOPENED AND THE ASSESSING OFFICER HAD ASSESSED THE INCOME WHICH WAS NOT SUBJECT MATTER OF THE NOTICE. THE ASSESSEE FILED AMENDED G ROUNDS OF APPEAL. THE RELEVANT GROUND OF APPEAL IS REPRODUCE D AS UNDER: 2(II) WITHOUT PREJUDICE TO THE ABOVE AND IN THE AL TERNATIVE, IF THE ASSESSMENT HAS BEEN MADE BY REOPENING THE ASSES SMENT U/S 148, THE SAME IS BAD BOTH IN THE YE OF LAW AS T HE ASSESSING OFFICER UPON ISSUANCE OF THE NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 READ WITH SECTION 1 47 HAVING NOT ASSESSED THE INCOME WHICH HE HAS REASON TO BELI EVE HAD ESCAPED ASSESSMENT AND WHICH FORM THE BASIS OF NOTI CE U/S 148, IT WAS NOT OPEN TO HIM TO ASSESS OR REASSESS INDEPENDENTLY ANY OTHER INCOME WHICH DOES NOT FORM THE SUBJECT MATTER OF THE NOTICE AND ON FACTS AS NEITHE R A NOTICE U/S 148 WAS EVER RECEIVED BY THE ASSESSEE NOR THE R EASONS RECORDED FOR REOPENING WERE EVER PROVIDED TO THE AP PELLANT. I.T.A.NO. 3137/DEL/2010 2 3. IT WAS FAIRLY CONCEDED BY THE LD. A.R. FOR THE A SSESSEE THAT BEFORE LD. CIT(A), NO SUCH GROUND OF APPEAL WAS TAK EN. HE MADE A REQUEST THAT THIS GROUND OF APPEAL MAY BE ADMITTED AND ADJUDICATED UPON. 4, AFTER HEARING BOTH THE PARTIES, THE AMENDED GROU NDS OF APPEAL WERE ADMITTED. THE ASSESSEE IN THE AMENDED GROUNDS HAS MENTIONED THAT NO ADDITION WAS MADE FOR ESCAPEMENT OF ADDITION FOR WHICH THE ASSESSMENT WAS REOPENED. SINCE BEFO RE LD. CIT(A), THE ASSESSEE HAD NOT TAKEN THIS LEGAL GROUND WHICH HAS BEEN ADMITTED BY US, WE FEEL IT PROPER TO SET ASIDE THE ISSUE TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO EXAMINE THE LEGAL ISSUE WHETHER ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT WAS J USTIFIED IN VIEW OF THE FACT THAT NO ADDITION HAS BEEN MADE IN RESPECT OF AMOUNT INCOME ESCAPING ASSESSMENT FOR WHICH THE ASSESSMENT WAS REOPENED. THE LD. CIT(A) WILL EXAMINE THE CASE OF THE ASSESSEE AND PASS A SPEAKING ORDER IN RESPECT OF ASSUMPTION OF J URISDICTION U/S 147 OF THE ACT. SINCE WE HAVE SET ASIDE THE ISSUE RELATING TO ASSUMPTION OF JURISDICTION U/S 147, THE ADDITION MA DE ON MERIT ALSO SET ASIDE TO THE FILE OF CIT(A) TO BE DECIDED AFRES H. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH APRIL 2011. SD./- SD./- (A. D. JAIN) (K. D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:07 TH APR., 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI