Vikas Asopa, Delhi V. ITO, New Delhi

ITA 3162/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3567 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 18-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Keywords: Assessment record
• Section: 143(3); 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.3162 & 3163/DEL./2017 ASSESSMENT YEAR 2011-2012 SHRI VIKAS ASOPA, NEW DELHI C/O. SAURAV ROHATGI & ASSOCIATES, G-2/9, GANGA TRIVENI APARTMENTS,SECTOR-9, ROHINI, DELHI 110085. PAN AHCPA3895Q VS. THE INCOME TAX OFFICER, WARD-34(4), NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SAURAV ROHATGI, C.A. FOR REVENUE : SHRI KAUSHLENDRA TIWARI, SR. D.R. DATE OF HEARING : 03.11.2017 DATE OF PRONOUNCEMENT : 08 .11.2017 ORDER BOTH APPEALS BY ASSESSEE ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF THE LD. CIT(A)-12, NEW DELHI, DATED 28 TH FEBRUARY, 2017 FOR A.Y. 2011-2012, CHALLENGING THE ADDITION ON MERIT A S WELL AS LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 19 61. 2. I HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LD. D.R. ALSO PRODUCED THE ASSESSMENT RECORD AND FILED COPIES OF THE NOTICE UNDER 2 ITA.NO.3162 & 3163/DEL./2017 SHRI VIKAS ASOPA, DELHI. SECTION 143(2) OF THE I.T. ACT, NOTICE UNDER SECTIO N 142(1) AND COPIES OF ORDER SHEET OF THE A.O. THE RECORD IS ALSO PERUS ED. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSE SSEE FILED RETURN OF INCOME ON 21 ST FEBRUARY, 2012 DECLARING INCOME AT RS.1,72,820. THE A.O. ISSUED NOTICES UNDER SECTION 143(2) AND 142(1) TO THE ASSESSEE AND THEREAFTER, ISSUED SEVERAL NOTI CES UNDER SECTION 142(1) OF THE I.T. ACT AT THE ADDRESS OF THE ASSESS EE BUT NONE HAVE BEEN ATTENDED BY THE ASSESSEE. THE A.O. ALSO ISSUED SHOW CAUSE NOTICE FOR LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE I.T. ACT WHICH IS ALSO NOT RESPONDED BY THE ASSESSEE. THE A.O. ULT IMATELY PASSED THE EX-PARTE ORDER UNDER SECTION 144 OF THE I.T. ACT. T HE A.O. MADE ADDITION OF RS.44,62,342 ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. INTEREST CREDITED TO THE BANK ACCOUNT IN A SUM OF RS.2711 WAS ALSO ADDED. THE DED UCTION OF RS.24,000 WAS DENIED FOR WANT OF DOCUMENTARY EVIDEN CE. THE A.O. COMPLETED THE ASSESSMENT AT RS.47,61,874. 3.1. THE ASSESSEE CHALLENGED THE ADDITIONS BEFORE THE LD. CIT(A) AS WELL AS CHALLENGED THE VALIDITY OF THE AS SESSMENT ORDER FOR NON-SERVICE OF NOTICE ISSUED UNDER SECTION 143(2) O F THE I.T. ACT. THE 3 ITA.NO.3162 & 3163/DEL./2017 SHRI VIKAS ASOPA, DELHI. ASSESSEE SUBMITTED BEFORE LD. CIT(A) THAT RETURN WA S FILED ON 21 ST FEBRUARY, 2012. NOTICE UNDER SECTION 143(2) REQUIRE D TO BE SERVED UP TO 30 TH SEPTEMBER, 2012. ON INSPECTION OF THE RECORD, IT C AME TO THE NOTICE OF ASSESSEE THAT THE NOTICE UNDER SECTION 14 3(2) OF THE I.T. ACT SENT ON 6 TH AUGUST, 2012 THROUGH SPEED POST WAS RECEIVED BACK AS UNSERVED ON 16 TH AUGUST, 2012. THE ASSESSEE THEREFORE, CONTENDED THAT NO NOTICE UNDER SECTION 143(2) HAVE BEEN SERVE D UPON THE ASSESSEE. THEREFORE, THE ASSESSMENT ORDER IS WITHOU T JURISDICTION AND IS LIABLE TO BE SET ASIDE. THE A.O. IN THE REMAND R EPORT STATED THAT NOTICE UNDER SECTION 143(2) DATED 6 TH AUGUST, 2012 HAVE BEEN ISSUED THROUGH SPEED POST AT THE ADDRESS PROVIDED BY THE A SSESSEE. FOR OTHER YEARS, NOTICES SENT AT SAME ADDRESS. THEREFOR E, THE ASSESSEE CANNOT DENY ABOUT KNOWLEDGE OF ASSESSMENT PROCEEDIN GS IN HIS NAME. 3.2. THE LD. CIT(A) ALSO ON GOING THROUGH THE RECO RD NOTED THAT THE NOTICE DATED 6 TH AUGUST, 2012 HAS BEEN RECEIVED BACK WITH THE COMMENTS NO SUCH PERSON. SIMILARLY, OTHER NOTICE ISSUED UNDER SECTION 142(1) BUT NONE HAVE BEEN RESPONDED. THEREF ORE, IT APPEARS THAT ASSESSEE DELIBERATELY AVOIDED TO RECEIVE THE N OTICES AND 4 ITA.NO.3162 & 3163/DEL./2017 SHRI VIKAS ASOPA, DELHI. ACCORDINGLY, THIS GROUND WAS DISMISSED. THE ASSESSE E ALSO CHALLENGED THE ADDITIONS ON MERIT. HOWEVER, THE APP EAL OF ASSESSEE HAS BEEN PARTLY ALLOWED BY REDUCING THE ADDITION ON ACCOUNT OF CASH DEPOSIT IN THE BANK ACCOUNT. ON THE CASH DEPOSIT IN THE BANK ACCOUNT AND OTHER ADDITIONS, PENALTY WAS LEVIED SEPARATELY WHICH WAS ALSO REDUCED BY THE LD. CIT(A) BECAUSE OF THE ADDITION O N MERIT HAVE BEEN REDUCED BY THE LD. CIT(A). PENALTY APPEAL WAS PARTL Y ALLOWED. 4. THE FIRST ISSUE INVOLVED IN THE APPEAL IS REGAR DING THE JURISDICTION OF THE A.O. FOR NON-SERVICE OF THE NOT ICE UNDER SECTION 143(2) WITHIN THE STATUTORY TIME LIMIT. IT IS NOT I N DISPUTE THAT ASSESSEE FILED RETURN OF INCOME ON 21 ST FEBRUARY, 2012. ACCORDING TO ASSESSEE, AS PER PROVISO TO SECTION 143(2), THE NOT ICE UNDER SECTION 143(2) WAS REQUIRED TO BE SERVED UPON THE ASSESSEE UPTO 30 TH SEPTEMBER, 2012. ACCORDING TO ASSESSEE THE SAID NOT ICE IS RECEIVED UNSERVED. THE LD. D.R. FILED COPY OF THE NOTICE DAT ED 06 TH AUGUST, 2012 ISSUED UNDER SECTION 143(2) OF THE I.T. ACT. T HE LD. D.R. ALSO PRODUCED THE ASSESSMENT RECORD WHICH REVEALED THAT THE SAID NOTICE HAS BEEN RETURNED UNSERVED TO THE A.O. WITH THE REM ARKS LEFT TO SENDOR. THE LD. CIT(A) ALSO NOTED IN THE APPELLATE ORDER THAT NOTICE 5 ITA.NO.3162 & 3163/DEL./2017 SHRI VIKAS ASOPA, DELHI. HAS BEEN RECEIVED BACK WITH THE COMMENTS NO SUCH P ERSON. THE REPORT IS DATED 11 TH AUGUST, 2012 AND ACCORDING TO ASSESSEE THE SAME HAS BEEN RECEIVED UNSERVED BY THE DEPARTMENT ON 16 TH AUGUST, 2012. ACCORDING TO PROVISO TO SECTION 143(2) OF THE I.T. ACT AS APPLICABLE TO ASSESSMENT YEAR UNDER APPEAL THE SAME PROVIDES PROVIDED THAT NO NOTICE UNDER THIS CLAUSE SHALL BE SERVED ON THE ASS ESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. IT WOULD SHOW THAT THE NOTICE UNDER SECTION 143(2) COULD BE SERVED UPON THE ASSESSEE UPTO 30 TH SEPTEMBER, 2012. THE LD. D.R. ADMITTED THAT EXCEPT THE NOTICE UNDER SECTION 143(2) DATED 06 TH AUGUST, 2012 WHICH RETURNED UNSERVED, NO OTHER NOT ICE UNDER SECTION 143(2) HAVE BEEN ISSUED TO THE ASSESS EE. THE ORDER SHEET ALSO REVEALED THAT THE A.O. THEREAFTER DID NO T ISSUE ANY NOTICE UNDER SECTION 143(2) TO THE ASSESSEE FOR THE PURPOS E OF SERVICE AND TO ASSUME JURISDICTION TO FRAME SCRUTINY ASSESSMENT UNDER SECTION 143(3) OF THE I.T. ACT. THOUGH THE A.O. ISSUED SEVE RAL NOTICES UNDER SECTION 142(1) OF THE I.T. ACT, BUT NONE HAVE BEEN SERVED UPON THE ASSESSEE AS PER ORDER SHEET. THESE FACTS THEREFORE, CLEARLY REVEAL THAT WHEN THE ONLY NOTICE UNDER SECTION 143(2) DATED 06 TH AUGUST, 2012 6 ITA.NO.3162 & 3163/DEL./2017 SHRI VIKAS ASOPA, DELHI. HAVE BEEN RETURNED TO THE A.O. UNSERVED IN AUGUST, 2012 ITSELF, THE A.O. COULD HAVE MADE SOME EFFORTS TO SERVE THE NOTI CE TO THE ASSESSEE UPTO 30 TH SEPTEMBER, 2012 THROUGH OTHER MODE OF SERVICE PRES CRIBED UNDER LAW. HOWEVER, THE A.O. DID NOT MAKE ANY EFFOR T TO SERVE THE NOTICE UNDER SECTION 143(2) OF THE I.T. ACT UPON TH E ASSESSEE. IT CLEARLY SHOW THAT A.O. NEVER WANTED TO SERVE THE AS SESSEE WITH JURISDICTIONAL NOTICE UNDER SECTION 143(2) OF THE I .T. ACT. IT STANDS PROVED ON RECORD THAT NO NOTICE UNDER SECTION 143(3 ) HAVE BEEN SERVED UPON THE ASSESSEE WITHIN THE TIME PRESCRIBED UNDER THE LAW OR THEREAFTER. THEREFORE, THE ENTIRE ASSESSMENT ORD ER GOT VITIATED DUE TO NON-SERVICE OF THE NOTICE UNDER SECTION 143(2) O F THE I.T. ACT. THE A.O. THEREFORE, DID NOT GET VALID JURISDICTION TO P ROCEED TO MAKE SCRUTINY ASSESSMENT AGAINST THE ASSESSEE. THE ASSES SMENT ORDER IS NULL AND VOID ABINITIO. I, THEREFORE, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND QUASH THE ASSESSMENT ORDER UN DER SECTION 143(3) OF THE I.T. ACT. RESULTANTLY, ALL ADDITIONS MADE IN THE ASSESSMENT ORDER STANDS DELETED. 5. IN THE RESULT, ITA.NO.3162/DEL./2017 OF THE ASS ESSEE IS ALLOWED. 7 ITA.NO.3162 & 3163/DEL./2017 SHRI VIKAS ASOPA, DELHI. ITA.NO.3163/DEL./2017 A.Y. 2011-2012 : 6. THE A.O. ALSO LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961 ON MAKING THE ADDITIONS ON ACCOU NT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE AN D OTHER ADDITIONS. SINCE THE ASSESSMENT ORDER HAVE BEEN QUASHED DUE TO NON-SERVICE OF THE NOTICE UNDER SECTION 143(2) OF THE I.T. ACT, TH EREFORE, NOTHING IS LEFT WITH THE REVENUE TO LEVY THE PENALTY UNDER SEC TION 271(1)(C) OF THE I.T. ACT. I, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY UNDER SECTION 271(1)(C ) OF THE I.T. ACT. THE APPEAL OF ASSESSEE IN ITA.NO.3163/DEL./2017 IS ALLOWED. 7. TO SUM-UP, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. 1. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 08 TH NOVEMBER, 2017 VBP/- 8 ITA.NO.3162 & 3163/DEL./2017 SHRI VIKAS ASOPA, DELHI. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.