Shri Naushad S/o Kamruddin, Pithampur V. The ITO, Dhar

ITA 326/IND/2011

• Counselvise Citation: 32622714 RSA 2011
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 1998-1999
• Appeal Filed On: 05-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S C BHANDARI
• Keywords: Reopening of assessment; Reassessment proceedings
• Section: 148; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH SMC BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.326/IND/2011 A.Y. 1998-99 SHRI NAUSHAD S/O SHRI KAMURUDDIN PITHAMPUR PAN APJPK 1602 :: APPELLANT VS INCOME TAX OFFICER DHAR :: RESPONDENT APPELLANT BY SHRI S.C. BHANDARI RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 24.09.2012 DATE OF PRONOUNCEMENT 24.09.2012 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R OF THE LEARNED CIT(A) DATED 16.8.2011 FOR THE A.Y. 1998-99 IN THE MATTER OF ORDER PASSED U/S 144 OF THE ACT. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE FACTS, IN BRIEF, ARE THAT THE ASSESSING OFFICER INITIATED 2 REASSESSMENT PROCEEDINGS BY ISSUE OF NOTICE U/S 148 ON THE PLEA THAT THE ASSESSEE OWNED A HOUSE CONSISTING OF 40 ROOMS WHICH WERE LET OUT. IN THE EX-PARTE ORDER PASSED U /S 144, THE ASSESSING OFFICER ESTIMATED THE RENTAL INCOME AT RS . 550/- PER MONTH PER ROOM AND ALSO ESTIMATED THE INCOME U/S 44 AF OF THE ACT AT RS. 21,600/-. 3. BY THE IMPUGNED ORDER, THE LEARNED CIT(A) CONFIR MED THE ADDITION AND ALSO DISMISSED THE ASSESSEES PLEA AGA INST VALIDITY OF REOPENING. THE LEARNED CIT(A) OBSERVED THAT IT IS NOT MANDATORY TO SHOW THE REASONS FOR ISSUE OF NOTICE U /S 148 OF THE ACT. 4. IT WAS ARGUED BY THE LEARNED COUNSEL FOR THE ASS ESSEE THAT THE REASONS FOR REOPENING OF ASSESSMENT WERE NOT FU RNISHED BY THE ASSESSING OFFICER INSPITE OF SPECIFIC REQUEST M ADE BY THE ASSESSEE TO THE ASSESSING OFFICER. IT WAS ALSO ARG UED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT TIME WAS SOUG HT FROM THE ASSESSING OFFICER FOR FURNISHING DETAILS OF INFORMA TION CALLED FOR BUT THE SAME WAS ALSO NOT ALLOWED BY THE ASSESSING OFFICER AND AN EX-PARTE ORDER WAS PASSED U/S 144 OF THE ACT BY ESTIMATING 3 ABNORMAL INCOME WHICH IS NOT BASED ON ANY EVIDENCE AND THE MATERIAL IN THE POSSESSION OF THE ASSESSING OFFICER . 5. ON THE OTHER HAND, THE LEARNED SENIOR DR SUPPORT ED THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFU LLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FIN D FROM RECORD THAT THE ASSESSMENT WAS REOPENED BY ISSUE OF NOTICE U/S 148. THE ASSESSEE ASKED FOR THE REASONS FOR REOPEN ING OF ASSESSMENT BUT THE SAME WERE NOT SUPPLIED. HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFT (INDIA) LIMITED ; 259 ITR 19 HELD THAT THE ASSESSING OFFICER IS REQUIRED TO SUPP LY REASONS FOR REOPENING AND THE ASSESSEE IS TO REPLY THE SAME AND AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE ASSESSIN G OFFICER SHOULD COMPLETE THE REASSESSMENT PROCEEDINGS. IN T HE INSTANT CASE, WE FIND THAT THE ASSESSING OFFICER HAS NOT SU PPLIED THE REASONS FOR REOPENING. EVEN REASONABLE OPPORTUNITY WAS NOT AFFORDED WHILE MAKING THE ADDITION. WE, ACCORDINGL Y, SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WIT H THE DIRECTION TO SUPPLY THE REASONS FOR REOPENING AND T O INVITE THE 4 OBJECTIONS OF THE ASSESSEE ON THE SAME AND AFTER CO NSIDERING THE SAME, HE SHOULD DECIDE THE MATTER AFRESH. WE A LSO FIND FROM RECORD THAT THE ASSESSEE ASKED FOR TIME TO FUR NISH DETAILS WITH REGARD TO THE QUERIES MADE BY THE ASSESSING OF FICER BUT THE ASSESSING OFFICER DID NOT ALLOW TIME AND COMPLE TED THE EX- PARTE ASSESSMENT. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE MATTER IS RESTORED T O THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE SAME AFRESH AFTER PROVIDING ADEQUATE AND REASONABLE OPPO RTUNITY TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FURNIS H DOCUMENTARY EVIDENCE TO SUBSTANTIATE HIS CLAIM. WE ALSO DIRECT THE ASSESSEE TO CONTACT THE OFFICE OF THE ASSESSING OFFICER FOR TIMELY COMPLETION OF ASSESSMENT, WITHIN 2 MONTHS FROM THE DATE OF SERVICE OF THIS ORDER. IN CASE OF ANY FAILURE ON T HE PART OF THE ASSESSEE, THE ASSESSING OFFICER IS AT LIBERTY TO DE CIDE THE SAME AS PER MATERIAL PLACED ON RECORD. 7. IN THE RESULT, THE APPEAL IS ALLOWED IN PART FOR STATISTICAL PURPOSES. 5 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 24 TH SEPTEMBER, 2012. SD/- (R.C.SHARMA) ACCOUNTANT MEMBER DATED: 24 TH SEPTEMBER, 2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE