ITO, New Delhi V. Mrs. Yashodhara Oberoi, Mumbai

ITA 3267/DEL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0084 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 02-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA SENIOR
• Assessee Lawyers: A K SRIVASTAVA
• Keywords: Additional evidence; Revised return
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER ITA NO.3267/DEL./2013 (ASSESSMENT YEAR : 2009-10) ITO, WARD 48 (1), VS. M/S. YASHODHARA OBEROI, NEW DELHI. 206, JAL DARSHAN GANDHI, GANDHI GRAM, JUHU, MUMBAI 400 009. (PAN : AAIPO0559N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A.K. SRIVASTAVA, CA REVENUE BY : SHRI P. DAM KANUNJNA, SENIOR DR DATE OF HEARING : 02.06.2015 DATE OF PRONOUNCEMENT : 03.06.2015 O R D E R PER GEORGE GEORGE K., JUDICIAL MEMBER : THIS APPEAL, AT THE INSTANCE OF THE REVENUE, IS DIR ECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XXX, NEW DELHI DATED 15.03.2013. THE RELEVANT ASSESSMENT YEAR IS 2009-10 . 2. THE ASSESSEE, AN INDIVIDUAL, FILED HER RETURN OF INCOME ON 30.07.2009, DECLARING INCOME AT RS.2,95,400/-. ON NOTICING INADVERTENT MI STAKE IN THE RETURN, THE ASSESSEE REVISED THE RETURN ON 13.07.2010 BY FILING A REVISE D RETURN, DECLARING INCOME AT RS.41,31,510/- AND CLAIMED A REFUND OF RS.25,892/ -. THE RETURN FILED ON 30.07.2009 2 ITA NO.3267/DEL/2013 WAS SELECTED FOR SCRUTINY UNDER CASS, BASED ON AIR INFORMATION. THE INCOME TAX OFFICER, WARD 48(1), NEW DELHI, ISSUED NOTICE U/S 1 43(2) OF THE ACT ON 20.08.2010. THE ASSESSEE, WHO RESIDES AT MUMBAI, FORWARDED THE NOTICES TO HER COUNSEL AT NEW DELHI FOR NECESSARY COMPLIANCE. APPARENTLY THERE WA S NO COMPLIANCE AND THIS LED TO AN ASSESSMENT U/S 144 OF THE ACT, MAKING ADDITIONS OF RS.1,03,71,149/- AND RS.1,00,000/-. THIS FACT CAME TO THE NOTICE OF THE ASSESSEE WHEN ASSESSMENT ORDER WAS RECEIVED. IN FRAMING THE ASSESSMENT, THE ASSESSING OFFICER HAS TOTALLY IGNORED THE REVISED RETURN FILED ON 13.07.2010, I.E. BEFORE THE ISSUANCE OF NOTICE U/S 143(2). INCOME HAS BEEN COMPUTED BY STARTING WITH THE INCOM E AS PER ORIGINAL RETURN. 3. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFOR E THE CIT (A) CHALLENGING THE JURISDICTION OF THE ITO, WARD 48(1) TO FRAME THE AS SESSMENT ALSO. THE ASSESSEE VIDE LETTER DATED 22.02.2013 SUBMITTED THAT THE ASSESSIN G OFFICER HAD NO JURISDICTION TO PROCEED WITH THE ASSESSMENT, BASED ON RETURN FILED ON 30.07.2009 AND IGNORING THE REVISED RETURN FILED ON 13.07.2010 AND THE ASSESSME NT FRAMED IS NULL AND VOID. IT WAS ALSO SUBMITTED BY THE ASSESSEE THAT WHEN REVISED RE TURN WAS FILED THE ORIGINAL RETURN WAS TOTALLY SUBSTITUTED AND REVISED RETURN ALONE HA D TO BE TAKEN INTO CONSIDERATION IN COMPLETING THE ASSESSMENT. IN THIS REGARD, HE RELI ED ON A NUMBER OF JUDICIAL PRONOUNCEMENTS BEFORE THE CIT (A). THE LD. CIT (A) IN EXERCISE OF HIS POWERS U/S 250(4) OF THE ACT DIRECTED THAT SUBMISSIONS BE MADE ON MERITS AND ALSO DIRECTED THAT EVIDENCES IN SUPPORT OF THE ASSESSEE'S CONTENTION B E FILED, TO ENABLE HIM TO CARRY OUT INVESTIGATION HIMSELF. IN COMPLIANCE WITH THE DIRE CTIONS OF THE LD. CIT (A), EVIDENCES IN SUPPORT WERE FILED BY THE ASSESSEE VIDE LETTER D ATED 01.03.2013 GIVING COMPLETE DETAILS OF INVESTMENTS IN UNITS OF MUTUAL FUNDS DUL Y SUPPORTED WITH COPIES OF 3 ITA NO.3267/DEL/2013 STATEMENTS ISSUED BY MUTUAL FUNDS AND BANK STATEMEN TS OF THE ASSESSEE AND HER HUSBAND AND SON. COPIES OF ACKNOWLEDGMENTS OF THEIR INCOME TAX RETURNS WERE ALSO FILED. THE LD. CIT (A), ACCEPTING THE ASSESSEES C ONTENTIONS, HELD THAT THE INCOME TAX OFFICER HAD NO JURISDICTION TO PROCEED WITH THE ASS ESSMENT ON THE BASIS OF THE ORIGINAL RETURN AND IGNORING THE REVISED RETURN. LD. CIT (A ) DELETED THE ADDITIONS ON MERITS ALSO. 4. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFOR E US BY TAKING THE FOLLOWING GROUNDS OF APPEAL :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN LAW , THE LD. CIT (A) HAS ERRED IN : 1. DELETING THE ADDITION OF RS.10371149/- AS RIGHTLY M ADE BY THE AO ON ACCOUNT OF INVESTMENT IN MUTUAL FUNDS, WHICH REMAINED UNEXPLAINED; 2. IN ADMITTING THE ADDITIONAL EVIDENCES UNDER RULE 46 A OF THE I.T. ACT, 1962 WITHOUT PROVIDING OPPORTUNITY TO THE AO AS REQUIRED UNDER SUB RULE 3 OF RULE 46A. 5. AT THE OUTSET OF THE HEARING, LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE REVENUE HAS NOT COME UP IN APPEAL ON THE ISSUE OF J URISDICTION, THEREFORE, THE APPEAL FILED BY THE REVENUE IS DEFECTIVE AND PLEADED THAT THE SAME BE DISMISSED. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSAL OF MATERIAL PLACED ON RECORD, WE FIND THAT THE CIT (A) HAS DECIDED THAT THE ITO HAS NO JURISDICTION TO PROCEED WITH THE ASSESSM ENT ON THE BASIS OF ORIGINAL RETURN AND IGNORING THE REVISED RETURN AND THE CIT (A) HAS DELETED THE ADDITION ON MERITS ALSO. THE RELEVANT FINDING OF THE CIT (A) IS REPRO DUCED AS UNDER :- 4 ITA NO.3267/DEL/2013 IN VIEW OF THE CASES CITED ABOVE, I HOLD THAT THE INCOME TAX OFFICER HAD NO JURISDICTION TO PROCEED WITH THE ASSESSMENT ON THE BASIS OF ORIGINAL RETURN AND IGNORING THE REVISED RETURN. EV EN ON MERITS AFTER EXAMINATION OF THE EVIDENCES I FIND THAT THE INVEST MENTS AS LISTED IN THE AIR HAVE BEEN MADE BY THE ASSESSEE AND HER FAMI LY MEMBERS. INVESTMENTS TO THE EXTENT OF RS.42,21,149/- ONLY HA VE BEEN MADE BY THE ASSESSEE. THE BALANCE INVESTMENTS HAVE BEEN MAD E BY HER FAMILY MEMBERS AND HER NAME APPEARS ONLY AS JOINT HOLDER. SOURCE OF ALL INVESTMENTS HAVE BEEN DULY EXPLAINED FROM THE BANK STATEMENTS. EVEN ON MERITS NO ADDITION RS.1,03,71,149/- IS CALLED FO R AND HAS TO BE DELETED. IN VIEW OF THE ABOVE, WE HOLD THAT THE REVENUES AP PEAL IS DEFECTIVE AS THE REVENUE HAS NOT COME UP IN APPEAL ON THE ISSUE OF JURISDICTION. ACCORDINGLY, WE DISMISS THE APPEAL ON THIS ISSUE ITSELF. AS WE HAVE ALREADY DISMISSED THE APPEAL ON THE ISSUE OF JURISDICTION, HENCE WE ARE NOT ADJUDICATING THE APP EAL ON MERITS. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS DAY OF 3 RD JUNE, 2015. SD/- SD/- (N.K. SAINI) (GEORGE GEORGE K.) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 3 RD DAY OF JUNE, 2015 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.