Shri Amit Pachauri, Bulandshahr V. ITO, Bulandshahr

ITA 3273/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3192 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 24-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Unexplained investment; Opportunity of being heard; Reassessment proceedings
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, ACCOUNTANT MEMBER ITA NO. 3273 /DEL/2017 : ASSTT. YEAR : 2003 - 04 SH. AMIT PACHAURI, S/O - SH. NAND KUMAR, KOTHIYAT, COURT ROAD, DISTT. BULANDSHAHR (U.P.) VS INCOME TAX OFFICER, WARD - 1, BULANDSHAHR (U.P.) - 203001 (APPELLANT) (RESPONDENT) PAN NO. A JZPP8114A ASSESSEE BY : SH. ANOOP SHARMA, ADV. & SH. SANJAY PRASHAR, ADV. REVENUE BY : MS. ASHIMA NEB , SR. DR DATE OF HEARING : 13.1 2 .201 7 DATE OF PRONOUNCEMENT : 01 . 0 3 .201 8 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 31.03.2017 OF LD. CIT(A) , GHAZIABAD . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1 . THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT REASSESSMENT PROCEEDINGS HAD BEEN VALIDLY INITIATED IN THE SUBJECT CASE, DESPITE ADMITTING THAT THE REQUIREMENT IN SECTION 151(2) HAD NOT BEEN SATISFIED. 2. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN PASSING A COMPLETELY NON - SPEAKING ORDER ON MERITS, WITHOUT MAKING ANY ENQUIRY OR CONDUCTING ANY VERIFICATION OF FACTS ON RECORD. THE APPELLANT CRAVES LEAVE TO ADD, DELETE, FOREGO, OR OTHERWISE MODIFY ALL OR ANY OF THE GROUNDS AS TAKEN ABOVE. ITA NO. 3273 /DEL /201 7 AMIT PACHAURI 2 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 31.03.2004 DECLARING AN INCOME OF RS.62,019/ - . LATER ON, THE NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS ISSUED ON 03.12.2009 AND THE ASSESSEE VIDE APPLICATION DATED 13.01.2010 STATED THAT THE RETURN FILED ON 31.03.2004 BE TREATED IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT. THEREAFTER, THE AO FRAMED THE ASS ESSMENT AT AN INCOME OF RS.6,63,019/ - BY MAKING AN ADDITION OF RS.2,01,000/ - ON ACCOUNT UNEXPLAINED UNSECURED LOAN AND RS.4,00,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT. THE SAID ADDITION WAS SUSTAINED BY THE LD. CIT(A). THEREAFTER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE ITAT DELHI BENCH SMC - 1 , NEW DELHI IN ITA NO.6491/DEL/2014 WHEREIN VIDE ORDER DATED 08.09.2015, THE MATTER WAS RESTORED TO THE LD. CIT(A) BY OBSERVING AS UNDER: 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PERUSED THE ORDER O F THE AO AND THE LEARNED CIT(A). I FIND THAT THE LEARNED CIT(A) HAS NOT ADJUDICATED ALL THE ISSUES RAISED BEFORE HIM AND, THEREFORE, IT SHALL BE REASONABLE TO SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THE GROUNDS OF APPEAL BEFORE THE LEARNED CIT(A) WITH THE DIRECTION TO PASS A DE NOVO APPELLATE ORDER IN ACCORDANCE WITH LAW ON MERITS AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. I DIRECT ACCORDINGLY. 4. WHEN THE MATTER WAS TAKEN FOR ADJUDICATION ON THE DIRECTIONS OF THE ITAT , THE LD. CIT(A) SUSTAINED THE ADDITION BY OBSERVING IN PARAS 4.1 & 4.2 OF THE IMPUGNED ORDER AS UNDER: 4.1 GROUND NOS. (I) AND (II);THE APPELLANT HAS CHALLENGED IN ORIGINAL GROUNDS I AND II AND AMENDED GROUNDS I AND II, THE PROCEEDINGS U/S 148 CONTENDING THAT REOPENING WAS BARRED BY LIMITATION U/S 151. ACCORDING TO THE APPELLANT THE AO SHOULD HAVE TAKEN APPROVAL OF CHIEF COMMISSIONER/COMMISSIONER OF INCOME TAX. EXAMINATION OF FACTS REVEAL THAT IN CASE OF APPELLANT ASSESSMENT WAS NEITHER COMPLETED U/S 143( 3) NOR U/S 147 AND APPROVAL OF ADDL.CIT HAS BEEN TAKEN BY THE AO PRIOR TO ISSUE OF ITA NO. 3273 /DEL /201 7 AMIT PACHAURI 3 NOTICE U/S 148 AS PER THE PROVISIONS OF SECTION 151. MOREOVER APPELLANT PARTICIPATED IN ASSESSMENT PROCEEDINGS AND NEVER CHALLENGED THE 148 PROCEEDINGS THUS THERE IS NO VIOL ATION OF PROVISIONS OF SECTION 147 IN THE LIGHT OF HON'BLE SUPREME COURT'S DECISION IN THE CASE GKN DRIVE SHAFTS INDIA LT D., THE RATIO OF THE ABOVE MENTIONED JUDGMENT IS NOT APPLICABLE TO FACTS AND CIRCUMSTANCES OF APPELLANT'S CASE AND THESE GROUNDS ARE NO T MAINTAINABLE THUS DISMISSED. 4.2 GROUND NO. 2: APPELLANT HAS CHALLENGED ADDITION OF RS. 2,00,000/ - ON ACCOUNT OF UNEXPLAINED UNSECURED LOAN TAKEN BY APPELLANT FROM MR. DEEPAK KUMAR CHANGIA THROUGH A DEMAND DRAFT AND ALSO CHALLENGED THE ADDITION OF RS. 4 ,00,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE BY APPELLANT WHILE MAKING A TOTAL PAYMENT OF RS. 8,00,000 / - IN PURCHASE OF IMMOVABLE PROPERTY. EXAMINATION OF FACTS REVEALS THAT APPELLANT FAILED TO SUBSTANTIATE THE GENUINENESS, CREDITWORTHINESS AND IDEN TITY OF THE PERSON EXTENDING LOAN AND ALLEGED SOURCE OF INVESTMENT IN THE PROPERTY. IN VIEW OF THESE FACTS THE ADDITION MADE BY THE AO IS UPHELD AND GROUND OF APPEAL IS DISMISSED. 5 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE LD. CIT(A) HAS NOT FOLLOWED THE DIRECTIONS GIVEN BY THE ITAT IN RIGHT PERSPECTIVE AND HAS NOT CONSIDERED THE JUDGMENT OF THE HON BLE SUPREME COURT IN THE CASE OF GKN DRIVE SHAFTS INDIA LTD. VS ITO REPORTED IN 259 ITR 19 AND SIMPLY STATED THAT THE SAID JUDGMENT WAS NOT RELEVANT. 6. IN HER RIVAL SUBMISSIONS, THE LD. SR. DR SUPPORTED THE IMPUGNED ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE HON BLE SUPREME COURT HAS DISMISSED THE SLP AGAINST THE RULING OF THE HON BLE HIGH COURT WHEREIN REOPEN ING OF THE ASSESSMENT U/S 147 OF THE ACT WAS HELD TO BE VALID DESPITE THE AO HAS NOT PASSED THE SPEAKING ORDER AGAINST THE OBJECTION FILED BY THE ASSESSEE IN THE CASE OF THAKUR BHAI MAGAN BHAI PATEL VS ITO 245 TAXMANN 333. SHE RELIED THE IMPUGNED ORDER PAS SED BY THE LD. CIT(A). ITA NO. 3273 /DEL /201 7 AMIT PACHAURI 4 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE LD. CIT(A) SIMPLY STATED THAT THE RATIO LAID DOWN BY THE HON BLE SUPREME COURT IN TH E CASE OF GKN DRIVE SHAFTS INDIA LTD. VS ITO (SUPRA) WAS NOT APPLICABLE TO THE FACTS OF THE ASSESSEE S CASE. HOWEVER, HE HAS NOT POINTED OUT AS TO HOW AND IN WHAT MANNER, THE SAID DECISION RELIED BY THE ASSESSEE WAS NOT APPLICABLE TO HIS CASE, FOR ANOTHER ISSUES RAISED BY THE ASSESSEE ON MERIT ALSO THE LD. CIT(A) HAS NOT MENTIONED AS TO WHAT WERE THE SUBMISSIONS OF THE ASSESSEE AND HOW THOSE WERE DEALT BY HIM. I, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AND TO PASS SPEAKING ORDER AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORD E R PRONOUNCED IN TH E COU RT ON 01 /0 3 /2018 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 01 /0 3 /2018 *SUBODH* COPY FORWA RDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR