Parmanand Sharma, Noida V. ITO, Ward- 2(4), Noida

ITA 3292/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2987 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 16-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAKESH SEHGAL
• Assessee Lawyers: SANKAR NASKAR
• Keywords: Opportunity of being heard; Set aside
• Section: 13; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.3292/DEL/2019 ASSESSMENT YEAR: 2010-11 PARMANAND SHARMA A-68, SECTOR-71, NOIDA NOIDA-201301 VS ITO WARD- 2 (4) NOIDA (APPELLANT) (RESPONDENT) RESPONDENT BY SH. RAKESH SEHGAL, CA APPELLANT BY SH. SANKAR NASKAR, SR. DR. DATE OF HEARING: 12/03/2020 DATE OF PRONOUNCEMENT: 13/03/2020 ORDER PER N. K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE CIT(A)-1, NOIDA DATED 29.10.2018 PERTAINING TO A.Y. 2010-11. 2. THE SUBSTANTIVE GRIEVANCE OF THE ASSESSEE READ A S UNDER :- 1. THE COMMISSIONER OF INCOME TAX (APPEALS)-L, NOID A ['CIT (A)'] INVOKED THE PROVISIONS OF SECTION 249(4)(B) AND DEC IDED THAT THE APPEAL IS NOT COMPETENT TO BE ADMITTED. THE DECISIO N OF THE CIT (A) OF NON-ADMISSION IS CONTRARY TO FACTS AND LAW AND THER EFORE, HIS ORDER OF NOT ADMITTING THE APPEAL IS LIABLE TO BE SET ASI DE. 2 2. THE CIT (A) ON ACCOUNT OF NOT ADMITTING THE APPE AL, DID NOT DECIDED ANY GROUND ON MERIT, WHICH IS UNLAWFUL AND THEREFORE, THE ORDER OF THE CIT(A) IS LIABLE TO BE SET ASIDE. 3. REASONS RECORDED U/S 148 FOR RE-ASSESSMENT WERE NOT PROVIDED TO THE /APPELLANT BEFORE THE COMPLETION OF SIX YEARS F ROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THEREFORE, THE RE-ASSE SSMENT PROCEEDINGS ARE CONTRARY TO FACTS AND TO LAW AND TH EREFORE, THE RE- ASSESSMENT FRAMED ON SUCH UNLAWFUL PROCEEDINGS IS L IABLE TO BE QUASHED. 4. AIR INFORMATION REGARDING CASH DEPOSIT OF RS.43, 61,300/-IN SAVING BANK ACCOUNT DURING FINANCIAL YEAR 2009-10 R ELEVANT TO ASSESSMENT YEAR 2010- 11 COULD NOT LEAD TO BE A 'RE ASON TO BELIEVE' U/S 148(2) FOR ESCAPEMENT OF INCOME FROM TAXATION A ND THEREFORE, THE REQUIREMENT OF PROVISIONS OF REASSESSMENT BEING NOT FULFILLED, THE NOTICE ISSUED U/S 148 FOR RE-ASSESSMENT IS UNLAWFUL AND CONSEQUENTLY, THE RE-ASSESSMENT ORDER FRAMED ON THE BASIS OF SUCH NOTICE IS UNLAWFUL AND IS LIABLE TO BE QUASHED. 5. THE ADDITION OF RS.43,61,300/- ON ACCOUNT OF CAS H DEPOSIT IN BANK ACCOUNT IS CONTRARY TO FACTS SINCE THE ASSESSE E HAD DEPOSITED AS WELL AS WITHDRAWN CASH FROM BANK ACCOUNT AND THE REFORE, THE ADDITION OF RS.43,61,300/- IS UNLAWFUL AND IS LIABL E TO BE DELETED. 6. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY O F THE GROUND OF APPEAL. 3. AT THE VERY OUTSET COUNSEL FOR THE ASSESSEE STAT ED THAT THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AS NOT MAINTAINABLE BY INVOKING THE PROVISIONS OF SECTION 249 (4)(B) OF THE ACT. 3 4. IT IS THE SAY OF THE COUNSEL THAT THE INCOME OF THE ASSESSEE WAS BELOW THE TAXABLE LIMIT AND, THEREFORE, THE ASS ESSEE WAS UNDER NO OBLIGATION TO PAY ADVANCE TAX AS PER THE P ROVISIONS OF THE LAW. THE COUNSEL CONCLUDED BY SAYING THAT THE CIT(A) AND TO HAVE DECIDED THE APPEAL ON MERITS OF THE CASE. 5. PER CONTRA THE DR STRONGLY SUPPORTED THE FINDIN GS OF THE CIT(A). 6. I HAVE CAREFULLY PERUSED THE ORDER OF THE FIRST APPELLATE AUTHORITY QUA THE ISSUES. I FIND THAT THE CIT(A) H AS DISMISSED THE APPEAL INVOKING THE PROVISIONS OF SECTION 249 ( 4) (B) OF THE ACT HOLDING AS UNDER :- HOWEVER, THIS ISSUE CAN BE CONSIDERED ONLY WHEN TH E APPEAL OF THE APPELLANT IS A COMPETENT ONE AND BASED UPON THAT IS ADMITTED BY TH IS OFFICE. THE LD. COUNSEL FOR THE APPELLANT IN COURSE OF HEARING ON 04.10.2018 SOUGHT TIME TO FILE APPLICATION U/S 249(4)(B) OF I.T. ACT, 1961 BUT THEREAFTER CHOSE NO T TO FILE THAT APPLICATION AND NOT TO SEEK GRANT OF AN EXEMPTION FROM THE MISCHIEF OF SEC TION 249(4}(B) WHICH IN ANY CASE IS NOT AVAILABLE AS A MATTER OF RIGHT AND IS DISCRETIO NARY RELIEF TO BE GRANTED BY THE COMMISSIONER (APPEALS) FOR GOOD AND SUFFICIENT REAS ONS AND THEREFORE THE MISCHIEF OF SECTION 249(4)(B) WOULD OPERATE AGAINST THE APPELLA NT IN ALL ITS MIGHT. THEREFORE, BECAUSE OF THE NON-COMPLIANCE OF THE PROVISIONS OF SECTION 249(4)'(B) OF I.T. ACT, 1961; THE APPEAL OF THE APPELLANT IS NOT COMPETENT TO BE ADMITTED AND THEREFORE, NONE OF THESE ISSUES CAN BE ADJUDICATED IN THE PRESENT APPEAL. PR ESENT APPEAL CANNOT BE ADMITTED FOR WANT OF JURISDICTION. THE IMPUGNED ASSESSMENT ORDER IS THEREFORE, CONFIRMED. THE APPEAL OF THE APPELLANT FAILS AND IS DISMISSED. 4 7. IN MY CONSIDERED OPINION ONCE THE ASSESSEE ALLEG ED THAT HIS INCOME IS NOT TAXABLE DURING THE PROVISIONS OF THE ACT THERE CANNOT BE ANY OBLIGATION UPON THE ASSESSEE TO PAY A DVANCE TAX. MY VIEW IS FORTIFIED BY THE AFFIDAVIT OF THE ASSESS EE FILED BEFORE ME. I FIND THAT THE FIRST APPELLATE AUTHORITY HAS NOT DECIDED THE APPEAL ON MERITS OF THE CASE, THEREFORE, IN THE INT EREST OF JUSTICE AND FAIR PLAY I DEEM IT FIT TO RESTORE THE APPEAL T O THE FILES OF THE CIT(A). THE CIT(A) IS DIRECTED TO DECIDE THE APPEA L AFRESH ON THE GROUNDS RAISED BEFORE HIM AFTER AFFORDING A REASONA BLE AND FAIR OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13.03.2 020. SD/- (N. K. BILLAIYA) ACCOUNTANT MEMBER *NEHA* DATE:- 13 .03.2020 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITAT NEW DELHI 5 DATE OF DICTATION 12.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 13.03.2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASS ISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER