Smt. Raj Rani Prop., Amritsar. V. The Income Tax Officer, Amritsar.

ITA 317/ASR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5621 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 30-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO.317(ASR)/2016 ASSESSMENT YEAR:2006-07 SMT. RAJ RANI PROP. M/S. R.R.METAL TRADERS, KATRA BHAI SANT SINGH, AMRITSAR. PAN: AAOFR-2048D VS. INCOME TAX OFFICER, WARD-2, (2) AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. AMRIK SINGH MALHOTRA , SH. GAGANDEEP SINGH MALHOTRA (ADVS.) RESPONDENT BY: SH. RAHUL DHAWAN (DR.) DATE OF HEARING: 19.04.2017 DATE OF PRONO UNCEMENT: 09/05/2017 ORDER PER DIVA SINGH: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILIN G THE CORRECTNESS OF THE ORDER DATED 29.02.2016 OF CIT(A)-1, AMRITSAR, PERTAINING TO 2006-07 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. HOWEVER, THE PARTIES WERE HEARD ONLY IN RESPECT O F GROUND NO.2 AS HEREIN THE ASSESSEE HAS CHALLENGED THE JURISDICTION OF THE ASSESSING OFFICER WHICH WAS STATED TO BE CHALLENGED BEFORE THE CIT(A) AND HAS BEEN LEFT UNDECIDED. THE SAME IS REPRODUCED AS UNDER: 2. THAT THE LEARNED ASSESSING AUTHORITY GROSSLY E RRED IN COMPLETING THE IMPUGNED ASSESSMENT, REOPENED BY THE INCOME TAX OFF ICER, NEW DELHI WITHOUT HAVING JURISDICTION OVER THE APPELLANTS CASE LIKEW ISE CIT(A) IS NOT JUSTIFIED IN HOLDING THAT SUCH A GROUND BEING OF GENERAL NATURE DOES NOT REQUIRE ANY ADJUDICATION. 3. THE RECORD SHOWS THAT BEFORE THE CIT(A), THE ASSE SSEE HAS RAISED THE FOLLOWING GROUND APART FROM THE OTHER GROUNDS ON THE MERITS OF THE ADDITION. 2. THAT THE LEARNED ASSESSING AUTHORITY GROSSLY ER RED IN COMPLETING THE IMPUGNED ASSESSMENT, REOPENED BY THE INCOME TAX OFF ICER, NEW DELHI WITHOUT HAVING JURISDICTION OVER THE APPELLANTS CASE. 4. A PERUSAL OF PAGE-7 OF THE IMPUGNED ORDER SHOWS THAT THE GROUND NO.2 WAS TREATED AS A GENERAL GROUND BY THE LD . CIT(APPEALS) NOT REQUIRING ANY ADJUDICATION. FOR READY REFERENCE PARA- 7 OF THE ITA NO.317 (ASR)/2016 ASST. YEAR: 2006-07 2 IMPUGNED ORDER IS REPRODUCED HEREUNDER: 7. I HAVE CONSIDERED THE ASSESSMENT ORDER, INFORM ATION RECEIVED FROM THE COMMISSIONER OF INCOME TAX, CENTRAL II, NEW DELH I AND THE WRITTEN SUBMISSIONS OF THE APPELLANT AND THE GROUNDS OF APP EAL ARE DISPOSED OFF AS UNDER: I. THE GROUND OF APPEAL AT S.NO.1 AND 5 IS DISMISSED. II. THE GROUND OF APPEAL AT S. NO.2,3,4,6,7,8 ARE GENERAL IN NATURE AND REQUIRES NO ADJUDICATION. 5. THE LD. AR REFERRING TO THE AFOREMENTIONED PARA SAID TH AT THE ISSUE ON JURISDICTION HAS NOT BEEN DECIDED. ACCORDINGLY IT WAS HIS PRAYER THAT THE ISSUE MAY BE RESTORED DIRECTING CIT(A) T O DECIDE THE ISSUE OR IN THE ALTERNATIVE IT MAY BE DECIDED BY THE ITAT. 6. THE LD. SR DR INVITED ATTENTION TO PAGE 6 OF THE IMPUGNED ORDER AND REFERRING TO THE FOLLOWING PARAGRAPH SUBMITTED THAT TH E SAID GROUND HAS ALSO BEEN ADJUDICATED UPON :- NOTICE U/S 148 HAS BEEN ISSUED BY THE ITO, DELHI I S BEING ISSUED ACCORDING TO THE JURISDICTIONAL AREA IN THE CITY AND AFTER THAT THE MATTER IS TAKEN UP BY THE ITO, 2(2), AMRITSAR BY ISSUING NOTICE U/S 142(1) DT . 11.12.13. THUS CLAIM OF THE ASSESSEE THAT THE NOTICE U/S 148 IS WRONGLY ISSUED BY THE ITO DELHI IS NOT ACCEPTED. 6.1 ACCORDINGLY, IT WAS HIS SUBMISSION THAT THE CIT(A ) HAS IN FACT DECIDED THE GROUND AND MAY HAVE MENTIONED IN PARA-7 TH AT GROUND NO.2 IS GENERAL BY WAY OF AN INADVERTENT MISTAKE OR TYPOG RAPHICAL ERROR. ACCORDINGLY IT WAS HIS SUBMISSION THAT THE ISSUE ST ANDS DECIDED AGAINST THE ASSESSEE. 7. I HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. I FIND ON CONSIDERING THE ARGUMENTS OF THE LD. SR. DR THAT THEY CANNOT BE ACCEPTED AS THE DECISION ON TH E JURISDICTIONAL ISSUE CANNOT BE SAID TO BE A DECISION BASED ON INFERENCE S AND PRESUMPTIONS OF BEING EITHER A TYPOGRAPHICAL ERROR OR INAD VERTENT MISTAKE. THE SO CALLED TYPO OR INADVERTENT MISTAKE HAS C AUSED THE ASSESSEE TO RAISE GROUND NO.2 CANVASSING THAT THE JUR ISDICTIONAL ISSUE HAS BEEN DISMISSED WHILE HOLDING IT TO BE A GENERAL GROUND, AND IF THE ARGUMENTS OF LD. SR. DR ARE TO BE ACCEPTED FOR A MOMEN T AND IT IS TO BE INFERRED THAT THE LD. CIT(A) IN FACT DECIDED THE GROUND N O.2 AND HAD THE MISTAKE NOT BEEN THERE, THEN THE CORRECT CONCLUSION WOULD HAVE BEEN THAT GROUND NO.2 DISMISSED. IN SUCH AN EVENTUALITY T HE GROUND RAISED BY THE ASSESSEE WOULD HAVE BEEN THAT GROUND NO .2 IS WRONGLY DISMISSED. SINCE BY THE PRESENT APPEAL THE ASSESSEE ADDR ESSES ITS GRIEVANCE AS EXPLICITLY CONCLUDED BY THE CIT(A) AND NOT AS THE CIT(A) ITA NO.317 (ASR)/2016 ASST. YEAR: 2006-07 3 SHOULD HAVE CONCLUDED THE AFORESAID CONCLUSION OF THE LD. CI T(APPEALS) RELIED UPON BY THE LD. DR IS TERMED TO BE GIVING RISE TO AMBIGUITY AND THUS CANNOT BE UPHELD. FURTHER, THE JURISDICTIONAL ISSUE E VEN OTHERWISE CAN NEVER BE SAID TO BE A GENERAL GROUND. THE DECISION B ASED ON INFERENCES ON THE PRESUMED TYPOGRAPHICAL ERROR OR IN ADVERTENT MISTAKE CANNOT BE MADE THE BASIS FOR PRESUMPTIONS REQU IRING FURTHER ASSUMPTIONS TO BE MADE AS TO HOW THE GROUND WOULD HAV E TO BE WORDED HAD THERE NOT BE A TYPO. THE JURISDICTIONAL ISSUE , IT GOES WITHOUT SAYING, GOES TO THE ROOT OF THE MATTER AND IN T HE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE IMPUGNED ORD ER BEING AMBIGUOUS AT BEST CAN NOT BE UPHELD. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE IN TOTO DIRECTING THE LD. CIT(A) TO FIRST DECIDE THE JURISDICTIONAL ISSUE AND THEN TO PROCEED TO DECIDE THE ISS UE ON MERITS, IF NEED BE. NEEDLESS TO STATE THAT A REASONABLE OPPORTU NITY OF BEING HEARD SHALL BE GRANTED TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH MAY,2017. SD/- (DIVA SINGH) JUDICIAL MEMBER /PK/PS./POONAM(CHD)/AG(CHD) COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER