Smt. Sunita Thukral, Delhi V. ITO, New Delhi

ITA 3527/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3963 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 14-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Opportunity of being heard; Period of limitation
• Section: 143(3); 142(1); 68

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3527/DEL/2014 (ASSESSMENT YEAR: 2008 - 09 ) SUNITA THUKRAL, B - 117, GUJRAWALAN TOWN, DELHI PAN:ABHPT3802B VS. ITO, WARD - 20(4), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VK SABHARWAL, ADV SHRI ANKUR SETHI, ADV REVENUE BY: SHRI SS RANA, CIT DR DATE OF HEARING 21/09 / 2017 DATE OF PRONOUNCEMENT 10 / 10 / 2017 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - XXII, NEW DELHI DATED 25.02.2014 FOR THE AY 2008 - 09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AND UPHELD BY THE LD. CIT(A) - XII, ARE PERVERSE TO THE LAW AND TO THE FACTS OF THE CASE BECAUSE OF NOT APPRECIATING THAT THE FIRST NOTICE HAS NOT BEEN ISSUED AND SERVED TO THE APPELLANT WITHIN THE PRESCRIBED PERIOD OF LIMITATION AS CONTAIN ED U/S143(2) PROVISO OF THE INCOME TAX ACT, 1961, AS SUCH THE ASSESSMENT FRAMED BECOMES BARRED BY LIMITATION. 2. THAT NO REASONABLE AND PROPER OPPORTUNITY OF BEING HEARD, HAS SINCE BEEN AFFORDED TO THE APPELLANT BY THE ASSESSING OFFICER, PRIOR TO PASS ORD ERS U/S 143(3) ON 16.12.2010 BECAUSE ON 16.12.2010 THE APPELLANT APPEARED WITH THE REQUIRED INFORMATION I DOCUMENTS TO EXPLAIN THE SOURCE OF CASH DEPOSITS OF RS. 76,47,500/ - IN HER SB A/C MAINTAINED WITH ORIENTAL BANK OF COMMERCE, DERAWAL NAGAR, DELHI, BUT THE COUNSEL WAS INFORMED, THAT THE ORDERS HAVE ALREADY BEEN PASSED, WHICH THE LD. CIT(A) HAS NOT APPRECIATED WHILE PASSING THE APPELLATE ORDERS. 3. THAT THE ASSESSMENT ORDER PASSED IS FURTHER NOT LEGAL AND TENABLE, BECAUSE THE MATERIAL COLLECTED ON THE B ACK OF THE APPELLANT WAS NEVER CONFRONTED FOR ITS REBUTTAL THEREOF BY THE ASSESSING OFFICER 4. THAT THE PRESUMPTION DRAWN BY THE ASSESSING OFFICER, ABOUT THE ENTIRE DEPOSITS/ CREDITS OF RS. 76,47,500/ - IN THE SB A/C OF THE APPELLANT WAS FACTUALLY HER INCO ME EARNED DURING THE YEAR, WAS ENTIRELY BASED UPON HIS GUESS WORK ONLY, AS WITHOUT THE ITA NO. 3527/DEL/2014 ( ASSESSMENT YEAR: 2008 - 09) SUNITA THUKRAL VS. ITO SUPPORT OF ANY COGENT MATERIAL, WHICH COULD EVER CONFIRM HIS OPINION, THEREFORE NOT TENABLE. 5. THAT THE ORDER PASSED IS FURTHER FRIVOLOUS AND VEXATIOUS, AS THE ASSESSING OFFICER HAS NOT TAKEN INTO CONSIDERATION THE RECORDS TAKEN INTO CONSIDERATION THE RECORDS AVAILABLE WITH HIM AND FILED PRODUCED ALSO BEFORE HIM IN THE COURSE ASSESSMENT PROCEEDINGS . 6. THAT THE ASSESSMENT ORDER PASSED ON 16.12.2010 IS FURTHER NOT CORRECT, AS THE SAME WAS COMPLETED ON 16.12.2010 ITSELF, WHICH WAS THE DATE OF HEARING PROVIDED TO THE APPELLANT, FOR APPEARANCE AND TO DISCHARGE HER EVIDENCE. THESE FACTS WERE ALSO CONFIR MED BY THE ASSESSING OFFICER IS HIS ORDERS PASSED ON 16.12.2010. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS FURTHER NOT JUSTIFIED AND HAD ERRED IN LAW TO ADJUDICATE HIMSELF ON THE FRESH MATERIAL FILED AND PLACED UPON RECORDS UNDER RULE 46A OF THE INCOME TAX RULES, WITHOUT AFFORDING ANY OPPORTUNITY TO THE CONCERNED ASSESSING OFFICER, THOUGH FOR WHICH HE WAS NOT EMPOWERED TO. 8. THAT THE ORDERS PASSED ARE FURTHER ILLEGAL AND NOT TENABLE BECAUSE THE CIT(A) HAS ADJUDICATED THE FRESH MA TERIAL FILED AND PLACED UPON RECORDS UNDER RULE 46A ON 21.01.2014 AND ON 19.02.2014 ON THE BACK OF THE APPELLANT, HIMSELF, WITHOUT PROVIDING ANY OPPORTUNITY TO THE CONCERNED ASSESSING OFFICER AS LAID DOWN UNDER RULE 46A OF THE INCOME TAX RULE. 9. THAT THE DECISION GIVEN BY THE CIT(A) IS FURTHER PERVERSE TO THE LAW AND TO THE FACTS OF THE CASE BECAUSE HE HAS NOT TRIED TO UNDERSTAND THE MEANING AND IMPLICATION OF THE AUTHENTICITY OF THE DOCUMENTS PRODUCED, FILED AND PLACED UPON RECORDS UNDER RULE 46A. 10. T HAT THE ORDER PASSED BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A) IS ENTIRELY BASED UPON PRESUMPTION AND GUESSWORK, WITHOUT THE SUPPORT OF ANY MATERIAL, WHICH COULD CONFIRM AND SUBSTANTIATE THE ACTION TAKEN BY BOTH OF THEM WHILE PASSING THE RESPECTIVE ORDERS. 11. THAT THE ORDERS PASSED AND CONFIRMED BY THE CIT(A) ARE FURTHER NOT TENABLE BECAUSE HE WAS HIMSELF HAVING OPINION, THAT THE ADDITIONS MADE U/S 68 BY THE ASSESSING OFFICER IN THIS CASE WAS NOT JUSTIFIED. BRIEF FACTS 3. THE ASSESSEE IS AN INDIVID UAL WHO FILED HER RETURN OF INCOME ON 30.09.2008 DECLARING INCOME OF RS. 142740/ - . DURING THE COURSE OF ASSESSMENT THE ASSESSEE ASKED TO FURNISH THE DETAILS OF BANK STATEMENT OF ACCOUNTS MAINTAINED BY THE ASSESSEE. THE ASSESSEE DID NOT FILE THE SAME. THE LD ASSESSING OFFICER OBTAINED THE BANK STATEMENT FROM ORIENTAL BANK OF COMMERCE, DERAWAL NAGAR, NEW DELHI AND NOTED THAT ASSESSEE HAS DEPOSITED RS. 7647500/ - INTO HER SAVINGS BANK ACCOUNTS ON VARIOUS DATES. THE ASSESSEE WAS ASKED OPPORTUNITY TO FURNISH THE INFORMATION BUT SAME WERE NOT FURNISHED. THEREFORE, LD ASSESSING OFFICER PASSED THE ASSESSMENT ORDER U/S 143(3) OF THE ACT ON 16.12.2010 DETERMINING THE TOTAL INCOME OF RS. 7790240/ - AGAINST THE RETURNED INCOME OF RS. 142740/ - . ITA NO. 3527/DEL/2014 ( ASSESSMENT YEAR: 2008 - 09) SUNITA THUKRAL VS. ITO 4. THE ASSESSEE AGGRIEVED WITH THE ORDER OF THE LD ASSESSING OFFICER PREFERRED AN APPEAL BEFORE THE LD CIT(A) - XXII, NEW DELHI, WHO DISMISS THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 25.02.2014. HE REJECTED THE CONTENTION OF THE ASSESSEE WITH RESPECT THE NON SERVICING OF NOTICE 143(2) OF THE ACT AS WELL AS ON THE MERITS ALSO HE CONFIRMED THE ADDITION RS. 7647500/ - . THEREFORE, THE ASSESSEE AGGRIEVED WITH THE ORDER OF THE LD CIT(A) PREFERRED APPEAL BEFORE US. 5. THE LD AUTHORISED REPRESENTATIVE VEHEMENTLY REFERRED TO GROUND NO. 1 AND SUBMITTED THAT NO NOTICE U/S 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE. HE REFERRED TO THE ASSESSMENT ORDER AND SUBMITTED THAT ASSESSING OFFICER HAS MENTIONED NOTICE U/S 143(2) AND 142(1) WERE ISSUED BUT HE STATED HAS BEEN SERVED ON THE ASSESSEE. HE SUB MITTED THAT THIS ISSUE WAS RAISED BEFORE THE LD CIT AT PARA NO. 7.1 OF HIS ORDER, HOWEVER, THE SAME CONTENTION WAS REJECTED SUMMARILY. HE SUBMITTED THAT IF THE NOTICE WAS NOT SERVED ON THE ASSESSEE 143(2) OF THE ACT THEN THE ORDER PASSED THEREON, IS BAD IN LAW. HE THEREFORE, RELIED UPON THE FOLLOWING DECISIONS THAT ASSESSMENT MADE WITHOUT VALID NOTICE U/S 143(2) OF THE ACT SERVED ON THE ASSESSEE THE ASSESSMENT IS BAD IN LAW. A. SHRI RAM KUMAR VS. ITO 785/DEL/2016 B. MEENAKSHI AGGARWAL VS. ITO 4171/DEL/2015 C. CIT VS. ABACUS DISTRIBUTION SYSTEM INDIA PVT. LTD, (DELHI HIGH COURT ) ITA NO. 1382/2014 D. SAPTAGIRI FINANCE AND INVESTMENT VS. ITO (MAD) ITA NO. 159/2006 E. ALPINE ELECTRONICS ASIA PTE LTD VS. DGIT (HON'BLE DELHI HIGH COURT) WPC NO. 7932/2010 6. THE LD DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ASSESSMENT ORDERS SPEAKS THAT THE NOTICE U/S 143(2) OF THE ACT HAS BEEN ISSUED. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IN THE ASSESSMENT ORDER THE LD AO HAS MENTIONED THAT NOTICE U/S 143(2) HAS BEEN ISSUED. HOWEVER, THERE IS NO REFERENCE OF DATE OF SERVICE OF SUCH NOTICES. THE LD CIT(A) HAS BRUSHED ASIDE THE ARGUMENTS OF THE ASSESSEE WITHOUT GIVING ANY ANSWER BUT HE REJECTED THE GROUND OF THE ASSESS EE. HE UPHELD THE ADDITION ON THE MERITS OF THE CASE. THE ASSESSEE HAS RAISED THIS ISSUE BEFORE US IN GROUND NO. 1 OF THE APPEAL. THEREFORE, VIDE SHEET ENTRY DATED 22.02.2017 WE HAVE DIRECTED THE LD DEPARTMENTAL REPRESENTATIVE TO PRODUCE SUCH RECORDS ON 11 .05.2017. FURTHER ON THAT DATE THE RECORDS WERE NOT PRODUCED HENCE, THE FINAL OPPORTUNITY WAS GIVEN TO THE LD DR TO PRODUCE SUCH RECORDS ON 14.06.2017. ON THAT DATE ALSO NO SUCH ITA NO. 3527/DEL/2014 ( ASSESSMENT YEAR: 2008 - 09) SUNITA THUKRAL VS. ITO RECORDS WERE PRODUCED AND THE CASE WAS ADJOURNED TO 12.07.2017. ON THAT DATE A LSO SUCH RECORDS WERE NOT PRODUCED THEREFORE, THE CASE WAS ADJOURNED TO 21.09.2017, ON THAT DATE ALSO NO RECORDS WERE PRODUCED BY THE LD DR. IN VIEW OF THIS WE DO NOT HAVE ANY OPTION BUT TO ACCEPT THE ARGUMENT OF THE ASSESSEE THAT NO NOTICE U/S 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE. ALL THE JUDICIAL PRECEDENTS SUBMITTED BY THE ASSESSEE APPLIES TO THE FACTS OF THE CASE. THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HON'BLE SUPREME COURT IN CASE OF ACIT VS. HOTEL BLUE MOON 321 ITR 362, WHEREIN IT IS HELD THAT IT IS MANDATORY FOR THE AO TO ISSUE NOTICE U/S 143(2) OF THE ACT. FURTHER IT HAS BEEN HELD THAT ISSUE AND SERVICE OF THE NOTICE IS MANDATORY AND NOT PROCEDURAL. SEVERAL OF SUCH DECISIONS HAVE FOLLOWED THE ABOVE GUI DANCE OF THE HON'BLE SUPREME COURT . LATELY, THE HON'BLE DELHI HIGH COURT IN CASE OF CIT VS. ABACUS DISTRIBUTION INDIA SYSTEM PVT. LTD IN ITA NO. 1382/2014 DATED 07.02.2017 HAS ALSO HELD THAT WHERE THERE IS NO SERVICE OF NOTICE BEFORE THE EXPIRY OF THE PER IOD THEN ASSESSMENT ORDER WILL NOT BE SAVE BY SECTION 292BB OF THE ACT. IN VIEW OF THIS WE ARE OF THE CONSIDERED VIEW THAT ASSESSMENT ORDER IN DISPUTE IS NOT SUSTAINABLE IN THE EYE OF LAW. HENCE, THE ASSESSMENT ORDER AS WELL AS THE APPELLATE ORDER STAND CA NCELLED AND APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 / 1 0/2017. - SD/ - - SD/ - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10 / 10 /2017 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI