Sharda Sharma, GB Nagar V. Pr. CIT, Noida

ITA 327/DEL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3436 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 17-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Principle of natural justice; Assessment record
• Section: 143(3); 147; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 327/DEL/2020 : ASSTT. YEAR : 2009-10 SHARDA SHARMA, 240, SECTOR BETA 2, GREATER NOIDA, GAUTAM BUDH NAGAR, UTTAR PRADESH-201308 VS PR. COMMISSIONER OF INCOME TAX, NOIDA (APPELLANT) (RESPONDENT) PAN NO. A MLPS4170L ASSESSEE BY : SH. SAURABH GUPTA, CA REVENUE BY : SH. H. K. CHOUDHARY, CIT DR DATE OF HEARING: 22.10.2020 DATE OF PRONOUNCEMENT: 05.11.2020 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. PCIT, NOIDA DATED 29.03.2019. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: 1. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT ERRED IN VIOLATING THE PRINCIPLES OF NATURAL JUSTICE BY NOT THE MENTIONING THE GROUNDS FOR INITIATING ACTION U/S 263 INCOME TAX ACT, 1961 IN THE SHOW CAUSE NOTICE ISSUED. AS SUCH, THE ORDER PASSED U/S 263 IS VOID AB-INITIO. THE ACTION OF THE LD. CIT WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT ERRED IN NOT PASSING A SPEAKING ORDER AGAINST THE SUBMISSIONS OF YOUR APPELLANT. AS ITA NO. 327/DEL/2020 SHARDA SHARMA 2 SUCH, THE ORDER PASSED U/S 263 IS VOID AB-INITIO. T HE ACTION OF THE LD. CIT WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 3. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER U/S 263 IS MERELY CHANGE IN OPINION. THE ORDER U/S 143(3) PASSED BY THE LD. AO DOES NOT IN ANY WAY REPRESENT ERRONEOUS ORDER. THE ACTION OF THE LD. CIT WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 4. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT ERRED IN DROPPING AND QUASHING TH E ASSESSMENT PROCEEDINGS ON THE BASIS OF SHOW CAUSE NOTICE IN WHICH IRRELEVANT DETAILS ARE THERE AND EV EN IN THE ORDER ALSO MATERIAL FACTS ARE WRONGLY QUOTED . 3. THE CASE OF THE ASSESSEE FOR AY 2009-10 WAS REOP ENED U/S 147 OF THE INCOME TAX ACT, 1961 ON THE BASIS OF THE REASON THAT THE ASSESSEE HAD DEPOSITED CASH OF RS.22,35,000/- I NTO HER BANK ACCOUNT. HOWEVER, AFTER SCRUTINY OF THE CASE, THE INCOME TAX OFFICER, WARD-3(4), NOIDA BY AN ORDER (IN THE O RDER SHEET ITSELF) DATED 15.12.2016 DROPPED THE ASSESSMENT PRO CEEDINGS INITIATED U/S 147 OF THE ACT. 4. THE LD. PCIT, ON SUBSEQUENT EXAMINATION OF THE ASSESSMENT RECORDS FOR THE YEAR UNDER CONSIDERATION , OPINED THAT THE SOURCE OF CASH DEPOSIT OF RS.22,35,000/- W AS NOT PROPERLY EXPLAINED BY THE ASSESSEE AS SALE PROCEEDS FROM SALE OF PROPERTY SITUATED AT PLOT NO. 172, SECTOR-64, FA RIDABAD AND THE ASSESSEE DID NOT FURNISH ANY OTHER DOCUMENT, SU CH AS COPY OF SALE DEED/AGREEMENT TO SALE TO PROVE THE CLAIM. THE LD. PCIT OPINED THAT THE CASH DEPOSIT OF RS.22,35,000/-, THU S REMAINED UNSUBSTANTIATED. SINCE, THE ASSESSING OFFICER ACCEP TED THE CLAIM OF THE ASSESSEE WITHOUT CONDUCTING ANY ENQUIRY IN T HE MATTER, THE LD. PCIT HELD THAT ORDER OF THE ASSESSING OFFIC ER IS ITA NO. 327/DEL/2020 SHARDA SHARMA 3 ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. OWING TO INITIATION OF PROCEEDINGS U/S 263, A NOTICE WAS ISS UED TO THE ASSESSEE BY THE LD. PCIT VIDE LETTER F.NO.PR.CIT/NO IDA/ITO (T)/REVIEW-U/S 263/2018-19/11601 DATED 14.03.2019. THE SAID NOTICE READS AS UNDER: ON AN EXAMINATION OF YOUR ASSESSMENT RECORDS FOR THE YEAR UNDER CONSIDERATION, IT IS SEEN THAT YOU H AD DEPOSITED CASH OF RS.22,35,000/- IN YOUR SAVINGS BANK ACCOUNT AND THE SOURCE THEREOF WAS EXPLAINED B Y YOU AS THE SALE RECEIPTS OF THE PROPERTY SITUATED A T PLOT NO. 172, SECTOR-64, NOIDA. IN SUPPORT OF THE CLAIM, YOU HAD FURNISHED FINAL TRANSFER LETTER DATE D 27.04.2010. HOWEVER, NO OTHER DOCUMENT, SUCH AS COPY OF SALE DEED/AGREEMENT TO SALE WAS FURNISHED B Y YOU IN THE ABSENCE OF WHICH THE RECEIPT OF CASH OF RS.22,35,000/- REMAINED UNSUBSTANTIATED. IN SUCH A SITUATION, THE ACTION OF THE ASSESSING OFFICER IN ACCEPTING YOUR CLAIM WAS NOT JUSTIFIED. 5. BEFORE US, DURING THE HEARING, THE LD. AR REITER ATED THE ARGUMENT TAKEN UP BEFORE THE LD. PCIT WHICH FINDS M ENTION AT PARA 5.0 OF THE ORDER U/S 263 OF THE LD. PCIT READS AS UNDER: WITH REFERENCE TO ABOVE, I WANT TO SAY THAT ASSESS EE HAD DEPOSITED THE CASH AND EXPLAIN THE SAME, BUT SI R, MIGHT BE HERE IS SOME CONFUSION BECAUSE THE PROPERT Y MENTIONED IN NOTICE WAS NOT BELONG TO US AND EITHER WE SOLD THAT PROPERTY. AND ALSO, THERE WAS NO ORDER PASSED UNDER ANY SECTION OF INCOME TAX ACT, 1961 FO R THE RELEVANT ASSESSMENT YEAR I.E. 2009-10 FOR REVIS ION U/S 263. 6. THE LD. DR ARGUED THAT THE WORD NOIDA IN THE S HOW CAUSE NOTICE MAY BE READ AS FARIDABAD AND ARGUED THAT T HE ORDER OF THE LD. PCIT IS CORRECT ON SUBSTANCE. ITA NO. 327/DEL/2020 SHARDA SHARMA 4 7. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. 8. THE ISSUE BEFORE US IS WHETHER A WRONG SHOW-CAUS E NOTICE CAN LEAD TO A RIGHT ACTION. THE OBVIOUS ANSWER WOUL D BE NO. IN THE INSTANT CASE, WHEN THE ASSESSEE BROUGHT TO THE NOTICE OF THE LD. PCIT THAT THERE WAS NO SUCH SALE OF PROPERTY SI TUATED AT NOIDA, THE LD. PCIT IN ALL FAIRNESS AND FITNESS OF THINGS OUGHT TO HAVE ISSUED A RIGHT SHOW-CAUSE NOTICE INSTEAD OF CO NTINUING THE PROCEEDINGS WITH A WRONG SHOW-CAUSE NOTICE. IT DEMO NSTRATES THAT THE REVENUE HAS NO UNAMBIGUOUS IDEA AS TO THE REASON OF INVOCATION OF SECTION 263. HENCE, THE ORDER PASSED SUBSEQUENTLY U/S 263 BY THE LD. PCIT IS LIABLE TO B E DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/11/2020. SD/- SD/- (SUDHANSHU SRIVASTAVA) (DR. B. R. R. KUMAR) JUDICIAL MEMBER AC COUNTANT MEMBER DATED: 05/11/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR