Shri Naresh Kumar, Haryana V. ITO, Rewari

ITA 3600/DEL/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6393 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 04-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BEDOBINA; CHAUDHURI
• Keywords: Opportunity of being heard; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 3600/DEL/2015 ASSESSMENT YEAR: 2007-08 NARESH KUMAR VS. ITO, WARD NO. 1, S/O SH. DHAN SINGH, INCOME TAX OFFICE, VILL SAHABAZPUR KHALSA MODEL TOWN, GANDHI GURDASS MAJRA CHOWK, DISTRICT REWARI REWARI 123401 HARYANA HARYANA (PAN: AYFPK5891G) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. NARESH KUMAR AGGARWAL, ADV. REVENUE BY : MS. BEDOBINA, CHAUDHURI, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 30.3.2015 PASSED BY THE LD.CIT(A), ROHTAK RELATING TO ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUNDS:- 1. THAT THE APPELLANT HUMBLY REITERATES FOR YOUR BENIG N AND WORTHY CONSIDERATION ALL THE FACTS AND GROUNDS OF A PPEAL MADE BEFORE THE LD. FIRST APPELLATE AUTHORITY. 2. THAT THE ASSESSMENT ORDER IS NOT JUST AND FAIR UNDE R THE CIRCUMSTANCES. THAT THERE EXISTS NO ADEQUATE AND VA LID JUSTIFICATION FOR ADDITION ON ACCOUNT OF CASH DEPOS ITS IN BANK ACCOUNT IN THE APPELLANTS INCOME. THAT FACTS AS AP PARENT FROM DOCUMENTS SUBMITTED AND SUBMISSION HAVE NOT BE EN ACCORDED DUE TO WEIGHT AS WARRANTED UNDER THE LAW. THAT THE AO HAS MADE ADDITION IS A HASTE MANNER. THAT CIT(A) HAS NOT 2 GIVEN DUE WEIGHT TO THE ASSESSEES WITNESSES PRODUC ED BEFORE AO. 3. THAT THE LD. CIT(A) SHOULD NOT HAVE CONSIDERED THE FINDING OF FACT GIVEN BY THE AO BLINDLY. THAT THE CIT(A) SHOUL D HAVE GONE THROUGH THE APPELLANTS WITNESSES STATEMENTS AND DO CUMENTS SUPPORTING THEIR VERSION. THAT THE AO HAS NOT ASSES SED THE REAL INCOME OF THE APPELLANT. 4. THAT THE CIT(A) COMMITTED ERROR IN LAW AND FACT IN DISALLOWING THE GROUNDS OF APPEAL IN RESPECT OF THE CASH DEPOSI TS. THAT THE AO AND LD. CIT(A) HAS NOT ALLOWED THE CREDIT OF FOL LOWING CASH RECEIPTS (DULY SUPPORTED) BY THE APPELLANT WITNESSE S STATEMENTS. 5. THAT LD. CIT(A) HAS ONLY GROUND TO REJECT TO APPELL ANTS EXPLANATION THAT NO COHESIVE EVIDENCES TO SHOW THAT HIS WITNESSES HAS PRODUCED ANY RECEIPTS ETC. THAT IT I S NEITHER A CONVENTION NOR A PRACTICE TO ISSUE RECEIPTS FOR FIN ANCIAL TRANSACTIONS TAKEN BETWEEN PERSONS IN A RURAL AREA. 6. THAT THE CIT(A) HAS COMMITTED A MISTAKE BY NOT CONS IDERING GROUND ON TRANSFER OF THE PROCEEDINGS FROM REWARI T O NARNAUL. THAT THE ASSESSMENT PROCEEDINGS WERE TRANSFERRED WI THOUT AN OPPORTUNITY TO THE APPELLANT. THAT TRANSFER ORDER D ATED 4.2.2013 HAD BEEN WITH EFFECT FROM 31 ST JAN 2013. NO ORDER CAN CONFER THE JURISDICTION UPON A AUTHORITY FROM E ARLIER THAN ORDER DATE. THAT EVEN OTHERWISE THE TRANSFER ORDER IS A INVALID ORDER. THAT IT DOES NOT PASSED THE TEST FOR VALID A SSESSMENT TRANSFER ORDER. 7. THAT IT IS WELL KNOWN AND STANDARD PRACTICE OF INCO ME TAX DEPARTMENT (SUPPORTED BY CBDT CIRCULARS) THE DEPART MENT OFFICERS ARE NOT SUPPOSED TO ACT AS EXECUTIVE OR JU DICIAL OFFICIAL ONLY BUT TO ACT AS BOTH. THAT THEY ARE SUP POSED TO HELP AND INFORM THE TAXPAYER ABOUT THEIR RIGHTS AN D LIABILITIES 3 WELL WITHIN IN ADVANCE. THEY SHOULD NOT TAKE DISADV ANTAGES OF THE ASSESSEES IGNORANCE OF THE LAW. 8. THAT JUSTICE SHOULD NOT ONLY BE DONE BUT APPEARS T O HAVE BEEN DONE MANIFESTLY AND UNDOUBTEDLY. THE HONBLE S.C. SAYS THAT THE TAXING AUTHORITIES SHOULD NOT ACT IN A MANNER INDICATE THAT THE SCALES OF JUSTICE ARE WEIGHTED AG AINST THE ASSESSEE. THE APPELLANT CRAVES FOR PERMISSION TO ADD, DELETE OR AMEND THE GROUNDS OF APPEAL BEORE OR AT THE TIME OF HEARING OF APPEAL. UNDER THE CIRCUMSTANCES IT IS PRAYED THAT THE APPEA L MAY BE ALLOWED AND / OR ANY OTHER RELIEF AS HONBLE TRI BUNAL MAY THINK FIT. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE COURSE OF HEARING, LD. COUNSEL OF THE ASSESSEE HAS STATED THAT LD. CIT(A) IN APPEAL HAS NOT CONSIDERED AND ADJUDICATED THE GROUND NO. 1 TO 6 MENTIONED IN FORM NO. 35 WHIC H WAS FILED BEFORE HIM, WHICH GOES TO THE ROOT OF THE MATTER AND ARE V ERY ESSENTIAL TO ADJUDICATE BEFORE GOING TO MERIT OF THE CASE. IN VI EW OF THE ABOVE, HE REQUESTED THAT THE ISSUES INVOLVED IN THE PRESENT A PPEAL MAY BE SET ASIDE TO FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER ADJUDICATING THE FOLLOWING GROUNDS WHICH WERE EARLIER RAISED BEFORE THE LD. CIT(A) ATTACHED WITH THE FORM NO. 35 AND GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO SUBST ANTIATE HIS CASE. 1. THAT THE ASSESSMENT ORDER IS BAD IN LAW IN VIEW OF THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE CASE. THA T THE ORDER PASSED BY THE AO WITHOUT JURISDICTION. IT IS A NUL L AND VOID ASSESSMENT UNDER THE ACT. 4 2. THAT THE TRANSFER OF THE APPELLANT INCOME TAX P ROCEEDINGS FROM ITO WARD NO.2, REWARI TO ITO WARD NO. 1 NARNAU L BY JCIT, REWARI IS VOID. THAT JCIT HAS NO POWER TO TRANSFER CASE FROM AO REWARI TO ANOTHER AO, NARNAUL UNDER THE ACT . 3. THAT ON THE TRANSFER OF CASE FROM ITO WARD NO.2, REWARI TO ITO / WARD NO 1, NARNAUL, NEITHER THE SUCCESSOR ITO NOR THE JCIT REWARI OFFICE 1 NEVER ISSUED A COMMUNICATION REGARD ING TRANSFER OF ASSESSMENT PROCEEDINGS. 4. THAT JCIT REWARI OFFICE NEVER ISSUED A COMMUNICA TION TO APPELLANT AFFORDING HIM A OPPORTUNITY TO RAISE OBJ ECTION TRANSFER OF THE CASE UNDER THE PROVISIONS OF THE ACT. 5. THAT THE APPELLANT HAS OBJECT TO THE JURISDICTIO N OF THE ITO WARD NO 1, NARNAUL. THAT AO, WARD NO 1, NARNAUL INSTEAD OF- REFERRING THE MATTER /1 TO SENIOR OFFICERS AS PER PROVISIONS OF INCOME TAX ACT, 1961, HE SIT OVER THE MATTER AND DECIDED THE M ATTER IN HIS OWN FAVOUR. 6. THAT AO HAS ACTED IN A HURRIED MANNER. THAT IT A PPEARED FROM THE ACTS AND CONDUCT OF AO AND JCIT THAT IT WAS PLA NNED TRANSFER OF APPELLANT ASSESSMENT PROCEEDINGS. THAT JCIT PASS ED TRANSFER ORDERS OF ASSESSMENT PROCEEDINGS ON 4/2/2013 LATE H OURS. THAT AO ISSUED NOTICES ON 6/2/2013 REGARDING ASSESSMENT WITHOUT MENTIONING HOW HE HAS BEEN VESTED WITH JURISDICTION . THAT EVEN OTHERWISE AO HAS NOT TRANSFERRED ITS ASSESSMENT REC ORD TILL DATE TO ITO WARD NO 2 REWARI EVEN WHEN AO JURISDICTION LAPS ED ON 31/03/2013 OVER THE ASSESSEE. 4. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE AND RELIED UPON THE ORDERS OF THE A UTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I HAVE GONE THROUGH THE ORDER PASSED BY THE REVENUE AUTHOR ITIES ESPECIALLY THE IMPUGNED ORDER AS WELL THE CONTENTION RAISED BY THE LD. COUNSEL OF THE ASSESSEE. I FIND CONSIDERABLE COGENCY IN THE ASSESSEES COUNSEL CONTENTION THAT LD. CIT(A) HAS DECIDED THE APPEAL O N MERIT WITHOUT ADJUDICATING THE GROUNDS NO. 1 TO 6 AS ATTACHED WI TH FORM NO. 35 WHILE FILING THE APPEAL BEFORE HIM, WHICH GOES TO T HE ROOT OF THE MATTER AND ARE VERY ESSENTIAL TO ADJUDICATE. 5 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE CASE, I AM OF THE VIEW THAT LD.CIT(A) SHOULD DECIDE THE FOLLOW ING GROUNDS NO. 1 TO 6 AS FILED BEFORE HIM. ACCORDINGLY, THE MATTER IS SET ASIDE AND RESTORED BACK TO THE FILE OF THE LD.CIT(A) TO CONSIDER THE S AME AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE TO SUBSTANTIATE HIS CASE. 1. THAT THE ASSESSMENT ORDER IS BAD IN LAW IN VIEW OF THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE CASE. THA T THE ORDER PASSED BY THE AO WITHOUT JURISDICTION. IT IS A NUL L AND VOID ASSESSMENT UNDER THE ACT. 2. THAT THE TRANSFER OF THE APPELLANT INCOME TAX P ROCEEDINGS FROM ITO WARD NO.2, REWARI TO ITO WARD NO. 1 NARNAU L BY JCIT, REWARI IS VOID. THAT JCIT HAS NO POWER TO TRANSFER CASE FROM AO REWARI TO ANOTHER AO, NARNAUL UNDER THE ACT . 3. THAT ON THE TRANSFER OF CASE FROM ITO WARD NO.2, REWARI TO ITO / WARD NO 1, NARNAUL, NEITHER THE SUCCESSOR ITO NOR THE JCIT REWARI OFFICE 1 NEVER ISSUED A COMMUNICATION REGARD ING TRANSFER OF ASSESSMENT PROCEEDINGS. 4. THAT JCIT REWARI OFFICE NEVER ISSUED A COMMUNICA TION TO APPELLANT AFFORDING HIM A OPPORTUNITY TO RAISE OBJ ECTION TRANSFER OF THE CASE UNDER THE PROVISIONS OF THE ACT. 5. THAT THE APPELLANT HAS OBJECT TO THE JURISDICTIO N OF THE ITO WARD NO 1, NARNAUL. THAT AO, WARD NO 1, NARNAUL INSTEAD OF- REFERRING THE MATTER /1 TO SENIOR OFFICERS AS PER PROVISIONS OF INCOME TAX ACT, 1961, HE SIT OVER THE MATTER AND DECIDED THE M ATTER IN HIS OWN FAVOUR. 6. THAT AO HAS ACTED IN A HURRIED MANNER. THAT IT A PPEARED FROM THE ACTS AND CONDUCT OF AO AND JCIT THAT IT WAS PLA NNED TRANSFER 6 OF APPELLANT ASSESSMENT PROCEEDINGS. THAT JCIT PASS ED TRANSFER ORDERS OF ASSESSMENT PROCEEDINGS ON 4/2/2013 LATE H OURS. THAT AO ISSUED NOTICES ON 6/2/2013 REGARDING ASSESSMENT WITHOUT MENTIONING HOW HE HAS BEEN VESTED WITH JURISDICTION . THAT EVEN OTHERWISE AO HAS NOT TRANSFERRED ITS ASSESSMENT REC ORD TILL DATE TO ITO WARD NO 2 REWARI EVEN WHEN AO JURISDICTION LAPS ED ON 31/03/2013 OVER THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/03/2017 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 20/03/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES