Gaya Prasad, New Delhi V. ITO, Ward- 34(3), New Delhi

ITA 3477/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1126 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 10-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.3477 & 3478/DEL/2018 ASSESSMENT YEAR: 2008-09 GAYA PRASAD, B-531, BUNKAR COLONY, ASHOK VIHAR, PHASE-4, NEW DELHI. PAN: AIRPP1848E VS. ITO, WARD-34(3), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRAMOD JAIN, CA REVENUE BY : SHRI AMIT JAIN, SR.DR DATE OF HEARING : 13.03.2019 DATE OF PRONOUNCEMENT : 15.03.2019 ORDER THE ABOVE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 11 TH JANUARY, 2018 OF THE CIT(A)-12, NEW DELHI, RELATIN G TO ASSESSMENT YEAR 2008-09. WHILE ITA NO.3477/DEL/2018 IS THE QUANTUM APPEAL FILED BY THE ASSESSEE AGAINST CHALLENGING THE ORDER OF THE CIT(A) SUSTAIN ING VARIOUS ADDITIONS MADE BY THE ASSESSING OFFICER, ITA NO.3478/DEL/2018 RELATES TO THE ORDER OF THE CIT(A) CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFI CER. ITA NOS.3477 & 3478/DEL/2018 2 ITA NO.3477/DEL/2018 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND WAS A CO- OWNER HAVING 1/8 SHARE OF PROPERTY FROM 646/2, SAWAN PARK, ASHOK VIH AR, DELHI. AN IRREVOCABLE SPECIAL POWER OF ATTORNEY DATED 25 TH JULY, 2007 WAS EXECUTED BETWEEN SHRI SATISH KUMAR BHATNAGAR AND CO-OWNERS OF THE PROPERT Y FOR RS.2 CRORES. THE TRANSACTION FOR THE SALE OF THE SAID PROPERTY WAS C OMPLETED IN THE F.Y. 2007-08. THE ASSESSING OFFICER REOPENED THE ASSESSMENT BY ISSUIN G NOTICE U/S 148 TO TAX THE AMOUNT RECEIVED BY THE CO-OWNERS AS SALE CONSIDERATION. S INCE THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE TO THE VARIOUS STATUTORY NOTIC ES ISSUED BY THE ASSESSING OFFICER FROM TIME TO TIME, THE ASSESSING OFFICER, IN THE OR DER PASSED U/S 144/147 OF THE ACT, DETERMINED THE TAXABLE INCOME AT RS.13,85,173/- WHE REIN HE ESTIMATED THE NORMAL INCOME OF THE ASSESSEE AT RS.1,10,000/- AND LONG-TE RM CAPITAL GAIN AT RS.12,75,173/-. 3. BEFORE CIT(A), THE ASSESSEE, APART FROM CHALLENG ING THE ADDITION ON MERIT ALSO CHALLENGED THE VALIDITY OF THE REASSESSMENT PROCEED INGS. HOWEVER, THE LD.CIT(A) DISMISSED BOTH THE GROUNDS AND DECIDED THE APPEAL A GAINST THE ASSESSEE. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BY RAISING THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF LD. AO AND LD. CIT(A) IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LD. AO ERRED IN INVOKING THE PROVISIONS O F SECTION 148. 3. THAT LD. AO ERRED IN NOT ISSUING THE NOTICES AT CO RRECT ADDRESS OF THE APPELLANT WHICH MAKES THE ASSESSMENT NULL AND VOID. 4. THAT NONE OF THE NOTICES U/S 148 OR NOTICES U/S 14 2(1) WAS SERVED ON THE ITA NOS.3477 & 3478/DEL/2018 3 ASSESSE. 5. THAT LD. CIT(A) ERRED IN IGNORING THE FACT THAT LD . AO HAS MAKE AN ADDITION WITHOUT APPLICATION OF MIND. 6. THAT THE LD. AO AND LD. CIT(A) ERRED ON THE FACTS OF THE CASE AND MAKE THE ADDITION WITHOUT ANY APPLICATION OF MIND. 7. THAT THE LD. CIT(A) ERRED IN SUSTAINING THE ADDITI ON MADE BY THE LD. AO AMOUNTING RS. 12,75,173/-. 8. THAT LD. AO AND LD. CIT(A) ALSO ERRED IN NOT FOLLO WING VARIOUS JUDGMENTS OF JURISDICTIONAL HIGH COURT AND ITAT. 9. THAT THE APPELLANT CARVES LEAVE TO ADD, ALTER, MOD IFY OR DELETE ANY OF THE GROUND OF APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, FILED COPY OF THE ASSESSMENT ORDER IN THE CASE OF ONE OF THE CO-OWNERS AND SUBMITTED T HAT THE ASSESSING OFFICER IN THE SAID ORDER HAS ACCEPTED THE RETURNED INCOME WITHOUT MAKI NG ANY ADDITION. ON A POINTED QUERY BY THE BENCH AS TO WHAT HAS HAPPENED TO THE O THER CO-OWNERS, NEITHER THE ASSESSEE NOR THE LD. DR COULD THROW ANY LIGHT. IT IS ALSO DISCERNIBLE FROM THE PAPER BOOK THAT THE CASE IS PENDING BEFORE THE HON'BLE DE LHI HIGH COURT. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND CONSIDERING T HE FACT THAT THE ASSESSING OFFICER IN THE CASE OF ONE OF THE CO-OWNERS HAS NOT MADE ANY A DDITION ON ACCOUNT OF CAPITAL GAIN AND SINCE IT IS NOT KNOWN AS TO WHAT HAS HAPPENED I N THE CASE OF OTHER CO-OWNERS, THEREFORE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ADJUDICATE THE ISSUE AFRESH, AFTER G IVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSING OFFICER SHALL DECID E THE ISSUE AS PER FACT AND LAW. I HOLD ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESS EE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.3477 & 3478/DEL/2018 4 ITA NO.3478/DEL/2018 6. THE ASSESSEE IN HIS GROUNDS OF APPEAL HAS CHALLE NGED THE ORDER OF THE CIT(A) IN CONFIRMING THE LEVY OF PENALTY OF RS.2,88,955/- U/S 271(1)(C) OF THE IT ACT. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE FACT THA T THE QUANTUM APPEAL HAS BEEN SET ASIDE TO THE FILE OF THE ASSESSING OFFICER AS PER T HE FINDINGS GIVEN IN THE PRECEDING PARAGRAPHS, THE PENALTY LEVIED BY THE ASSESSING OFF ICER IS NOT SUSTAINABLE, THEREFORE, THE PENALTY SO LEVIED BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A) IS DELETED. HOWEVER, THE ASSESSING OFFICER IS AT LIBERTY TO INI TIATE FRESH PENALTY PROCEEDINGS AFTER COMPLETING THE ASSESSMENT. THE APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 7. IN THE RESULT, ITA NO.3477/DEL/2018 FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND ITA NO.3478/DEL/2018 FILED BY THE ASSESSEE IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 1 5.03.2019. SD/- ( R.K. PANDA) ACCOUNTANT MEMFBE R DATED: 15 TH MARCH, 2019 DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI