Vikrant Tiwari, Kanpur V. ITO WARD 2(6), Noida

ITA 3578/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5879 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 24-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Sale consideration of property below Jantri Value; Depreciation; Cost of acquisition; Reason to believe
• Section: 50C; 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.3578/DEL/2019 ASSESSMENT YEAR: 2009-10 VIKRANT TIWARI, 117/H-1/1529, PANDU NAGAR, KANPUR, UTTRAR PRADESH. VS. ITO, WARD-2(6), NOIDA. TAN/PAN: ABZPT6114G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAKESH GARG, ADV. RESPONDENT BY: SHRI SURENDER PAL, SR.D.R. DATE OF HEARING: 17 07 2019 DATE OF PRONOUNCEMENT: 27 09 2019 O R D E R PER AMIT SHUKLA, JM : THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 30.11.2018, PASSED BY COMMISSIONER OF INCOME TAX (APPEALS)-I, NOIDA FOR T HE ASSESSMENT YEAR 2009-10. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS CHALLENGED; FIRSTLY, THE VALIDITY OF R EOPENING U/S.147 R.W.S. 148 ON THE GROUND THAT NO NOTICE U/S .148 WAS SERVED UPON THE ASSESSEE IN ACCORDANCE WITH LAW; SE CONDLY, APPROVAL GIVEN BY THE PR.CIT U/S.151 IS PURELY MECH ANICAL; AND LASTLY, ADDITION MADE BY THE ASSESSING OFFICER OF RS.1,95,20,000/- UNDER THE HEAD CAPITAL GAIN ON S ALE OF PROPERTY. I.T.A. NO.3758/DEL/2019 2 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND DOCTOR BY PROFESSION AND DURING THE YEAR UNDER CONSIDERATION HAD SHOWN SALE OF IMMOVABLE PROPERTY FOR A CONSIDERATION OF RS.3,75,20,000/-. ON THE BASIS OF NON PAN AIR INFORMATION, THAT ASSESSEE HAS SOLD IMMOVABLE P ROPERTY AT NOIDA, THE ASSESSEES CASE HAS BEEN REOPENED U/S .147 BY ISSUANCE OF NOTICE DATED 16.03.2016 U/S.148. AS OBS ERVED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER, NONE OF THE NOTICES SENT TO THE ASSESSEE INCLUDING THAT ALL NOT ICES U/S.148 WERE COMPLIED WITH THE ASSESSEE. ACCORDINGLY, THE A SSESSING PASSED EXPARTE ORDER U/S 144 AND HAD MADE ADDITION OF RS.1,95,20,000/- BY HOLDING THAT SALE CONSIDERATION AS PER SECTION 50C OF THE PROPERTY WAS RS.3,95,20,000/- AN D INDEX COST OF ACQUISITION WAS ESTIMATED BY HIM AT RS.2 CR ORES. 3. LD. CIT (A) HAS CONFIRMED THE ADDITION AND HELD THAT INCOME IS TO BE TAXED AT RS.1,93,00,806/- AS SHORT TERM CAPITAL GAIN AND REJECTED ALL THE OBJECTIONS OF SERV ICE OF NOTICE AND ASSESSEES SUBMISSION ON MERITS. 4. BEFORE US, LD. COUNSEL FOR THE ASSESSEE, MR. RAK ESH GARG CHALLENGING THE VALIDITY OF ISSUANCE AND SERVICE OF NOTICE U/S 148, FIRST OF ALL DREW OUT ATTENTION TO NOTICE U/S. 148 DATED 16.03.2016 (COPY PLACED IN THE PAPER BOOK), AND POI NTED OUT THAT IT HAS BEEN ADDRESSED AND SENT ON THE WRONG AD DRESS, EVEN WHEN ASSESSEE WAS REGULARLY ASSESSED TO TAX AT KANPUR WITH PAN JURISDICTION AT KANPUR. THE RELEVANT NOTICE ISSUED U/S 148, IS REPRODUCED HEREUNDER: I.T.A. NO.3758/DEL/2019 3 NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 PAN NO. OFFICE OF THE INCOME TAX OFFICER, WARD - 2(5), NOIDA DATED: 16.03.2016 TO, VIKRANT TIWARI A-72N, SECTOR-17 NOIDA-201301 WHEREAS I HAVE REASON TO BELIEVE THAT YOUR INCOME/ THE INCOME OF ................................................ ..................... IN RESPECT OF WHICH YOU ARE ASSESSABLE CHARGEABLE TO TAX FOR THE ASSESSMENT YEAR 2009-10 HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147OFTHE INCOME TAX ACT, 1961. I, THEREFORE, PROPOSE TO ASSESS/REASSESS THE INCOME / RECOMPUTE LOSS/ DEPRECIATION ALLOWANCE FOR THE SAID ASSTT. YEAR AND I HEREBY REQUIRE YOU TO DELIVER TO ME WITHIN 30 DAYS FROM THE DATE OF SERVICE OF THIS NOT ICE, A RETURN IN THE PRESCRIBED FORM OF .......................................... . .......................................... .... ......................... IN RESPECT OF WHICH YOU ARE ASSESSABLE FOR THE SAID ASSESSMENT YEAR. THIS NOTICE IS BEING ISSUED AFTER OBTAINING THE NEC ESSARY SATISFACTION OF THE PR. COMMISSIONER OF INCOME TAX, NOIDA (VINAY KUMAR) INCOME TAX OFFICER, WARD - 2(5), NOIDA LD. COUNSEL THEN DREW OUR ATTENTION TO THE REASONS RECORDED BY THE ASSESSING OFFICER WHICH WAS AS UNDE R: AN AIR INFORMATION REGARDING SALE OF IMMOVABLE PRO PERTY AMOUNTING TO RS.96,00,000/- ON 04.02.2009 HAS BEEN RECEIVED FROM CIB FOR EXAMINING OF NON PAN FINANCIA L TRANSACTIONS. TO VERIFY THE TRANSACTION AN INFORMAT ION HAS BEEN CALLED U/S.133(6) VIDE LETTER DATED 30.10.2015 . NO REPLY HAS BEEN RECEIVED FROM THE ASSESSEE. I.T.A. NO.3758/DEL/2019 4 IN VIEW OF ABOVE FACTS AND IN ABSENCE OF DOCUMENTAR Y EVIDENCE, I HAVE REASON TO BELIEVE THAT THE INCOME OF RS.96,00,000/- SALE AMOUNT WHICH IS CHARGEABLE TO T AX, HAS ESCAPED ASSESSMENT FOR A.Y. 2009-10 WITHIN THE MEAN ING OF SECTION 147 OF THE IT ACT, 1961. 5. HE SUBMITTED THAT ASSESSEE WAS REGULARLY ASSESSE D TO TAX IN RANGE-4(3) AT KANPUR WITH HAVING PAN ABZPT61 14G. THIS FACT WAS DULY BROUGHT BEFORE THE LD. CIT (A) A LSO VIDE LETTER FILED ON 23.07.2018. THE ASSESSEE NEVER RESI DED AT THE GIVEN ADDRESS AT NOIDA AND EVEN THE ADDRESS MENTION ED AS PER THE SALE/LEASE DEED AND THE NOTICE DATED 01.04. 2018 IS ALSO DIFFERENT. THIS IS EVIDENT FROM THE FACT THAT IN THE NOTICE, THE ADDRESS MENTIONED IS A-72N SECTOR 17 NOIDA-201301, WHEREAS IN THE LEASE DEED DIFFERENT ADDRESS WAS MEN TIONED, A-72, 1 ST FLOOR SECTOR, 17 NOIDA . THUS, EVEN IF THE ASSESSING OFFICER HAD TAKEN THE NOTICE AS THE ADDRE SS MENTIONED IN THE LEASE DEED WHICH WAS THE SUBJECT M ATTER OF CIB INFORMATION AND REOPENING, THEN ALSO THE ADDRES S ON WHICH NOTICE SENT WAS WRONG, BECAUSE THERE IS NO SU CH ADDRESS A-72N . ACCORDINGLY, IF JURISDICTIONAL NOTICE U/S.148 HAS NOT BEEN SERVED IN ACCORDANCE WITH LAW THEN ENT IRE PROCEEDINGS IS VOID AB INITIO AND IN SUPPORT HE RELIED UPON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. SHITAL PRASAD KHARAG PRASAD, (2006) 280 ITR 541 (ALLD.) 6. ON THE OTHER HAND, LD. DR STRONGLY RELIED UPON T HE ASSESSING OFFICER AND LD. CIT (A) AND SUBMITTED THA T IN THE I.T.A. NO.3758/DEL/2019 5 CASE OF NON PAN FINANCIAL TRANSACTION, THE ADDRESS MENTIONED FOR SALE DEED OR LEASE DEED IS CONSIDERED TO BE THE ADDRESS. IN ANY CASE, THE MATTER CAN BE RESTORED BACK TO THE FI LE OF THE ASSESSING OFFICER TO DEAL WITH THE ASSESSEES OBJEC TION ON THE VALIDITY OF NOTICE U/S.148. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND ON P ERUSAL OF THE RELEVANT MATERIAL PLACED ON RECORD, WE FIND THAT THE ASSESSEE WAS REGULARLY ASSESSED TO TAX WITH RANGE-4(3) KANPUR WITH PAN ABZPT6114G. SINCE ASSESSMENT YEAR 2003-04, THE ASSESSEE HAS BEEN REGULARLY FILING THE RETURN OF INCOME AND EVEN UP TO ASSESSMENT YEAR 2018-19, THE INCOME TAX RETURN HAS BEEN FILED WITH THE SAME PAN TO BE W ARD 4(3) KANPUR AND ADDRESS MENTIONED IS, 117/H-1/1529, PANDU NAGAR, KANPUR . IF IN THE INCOME TAX RECORDS AND IN PAN DATA, ASSESSEES ADDRESS AS WELL AS THE JURISDICTION OF T HE ASSESSING OFFICER HAS BEEN CATEGORICALLY GIVEN, THEN WITHOUT VERIFYING THE SAME, HOW ITO WARD-2(5) NOIDA CA ISSUE A NOTICE AT A WRONG ADDRESS. NOT ONLY THAT, EVEN GOING BY THE RECORDS O F DEEDS ON THE BASIS OF WHICH ASSESSEES CASE WAS REOPENED THA T HE HAS SOLD SOME IMMOVABLE PROPERTY AT NOIDA, MENTIONS ADD RESS A-72, 1 ST FLOOR SECTOR 17, NOIDA WHEREAS THE ADDRESS ON WHICH NOTICE HAS BEEN SENT MENTION A-72N, SECTOR-17, NOIDA, WHICH, AS BROUGHT OUT BY THE LD. COUNSEL IS NOT AN ADDRESS AT ALL. ALSO IT IS AN ADMITTED FACT THAT NE ITHER NOTICE U/S.148 HAS BEEN SERVED UPON THE ASSESSEE BY THE AS SESSING OFFICER NOR HAS BEEN SENT AT A PROPER ADDRESS. THUS , IN I.T.A. NO.3758/DEL/2019 6 ABSENCE OF ANY VALID SERVICE OF NOTICE, U/S.148, WH ICH IS CONDITION PRECEDENT FOR ASSUMING THE JURISDICTION F OR REOPENING THE CASE U/S.147, THE ENTIRE PROCEEDINGS GETS VOID AB INITIO AND IS TO BE HELD AS NULL AND VOID. ACCORDINGLY, T HE IMPUGNED ASSESSMENT ORDER IS QUASHED AS NULL AND VO ID AS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT IN TH E COMMISSIONER OF INCOME TAX VS. SHITAL PRASAD KHARAG PRASAD, (2006) (SUPRA) . 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH SEPTEMBER, 2019. SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 27 TH SEPTEMBER, 2019 PKK: