ACIT, New Delhi V. Sh. Aditya Khanna, New Delhi

ITA 3638/DEL/2013

• Counselvise Citation: 363820114 RSA 2013
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-05-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 06-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: SAILASH GUPTA
• Keywords: Reopening of assessment; Unexplained cash credit; Reassessment proceedings
• Section: 147; 68; 148

Judgement Text

ITA NO. 3638/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI B.R. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 3638/DEL/2013 A.Y. : 2004-05 ACIT, CENTRAL CIRCLE-5, NEW DELHI ROOM NO. 361, 3 RD FLOOR, ARA CENTRE, E-2, JHANDEWALAN EXTENSION, NEW DELHI 110 055 VS. SHRI ADITYA KHANNA, B-35, GREATER KAILASH-I, NEW DELHI (PAN:AORPK0703M) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. SAILASH GUPTA, CA DEPARTMENT BY : MS. Y. KAKKAR, SR. DR ORDER ORDER ORDER ORDER PER PER PER PER B.R. JAIN B.R. JAIN B.R. JAIN B.R. JAIN: AM : AM : AM : AM THIS APPEAL BY THE REVENUE HAS BEEN INSTITUTED AGA INST THE ORDER DATED 30.3.2013 OF LD. CIT(A)-XXXI, NEW DELHI BY RAISING THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE LD. CIT(A) IS NOT CORRECT IN L AW AND FACTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN LAW IN CONCLUDING THAT ORDER IS BAD IN LAW AND DELETING THE ADDITION OF RS . ITA NO. 3638/DEL/2013 2 14,84,395/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDITS U/S. 68 OF THE I.T. ACT, 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 14,84,395/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDITS U/S. 68 OF THE I.T. ACT, 1961 WITHOUT GOING INTO MERITS AND FACTS OF THE CASE. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ANY / ALL THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE O F HEARING OF THE APPEAL. 2. AT THE OUTSET, ASSESSEES COUNSEL SHRI GUPTA PL ACED ON RECORD AN ORDER DATED 15.4.2014 PASSED BY THE DIVISION BENCH OF THE APPELLATE TRIBUNAL MADE IN A BATCH OF 29 APPEALS/ C ROSS OBJECTIONS AND POINTED THAT AT PARA 22 TO 24 OF THIS ORDER TH E REVENUES APPEAL IN ITA NO. 3638/DEL/2013 STANDS DISPOSED OF ALONGWITH ASSESSEES APPEAL IN ITA NO. 3294/DEL/2013 FOR ASST T. YEAR 2004-05. IN ASSESSEES APPEAL THE REOPENING OF ASSESSMENT U/ S. 147 OF THE ACT AND ALSO CONSEQUENT ORDER OF ASSESSMENT FRAMED U/S. 147/143(3) OF THE ACT WERE HELD INVALID AND STOOD QUASHED. IN THIS VIEW OF THE MATTER, IT IS CONTENDED THAT AFTER QUAS HING THE ASSESSMENT, THE APPEAL BY REVENUE IN ITA NO. 3638 /DEL/2013 SHALL NOT SURVIVE. 2.1 ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTAT IVE CONTENDS THAT WITHOUT TRANSFER OF REVENUES APPEAL AND CLU BBING THE SAME WITH THE ASSESSEES APPEAL IN F BENCH, THE APPELL ATE TRIBUNAL F BENCH COULD NOT HAVE DECIDED AND DISPOSED OF REVEN UES PENDING ITA NO. 3638/DEL/2013 3 APPEAL BEFORE THIS BENCH. THAT APART LD. COUNSEL F OR REVENUE ALSO TOOK FURTHER PLEAS AS UNDER:- A) THE ASSESSEE HAS CONTENDED THAT MATTER OF REVENUE IN ITA 3638-D-2013 STANDS COVERED BY ORDER DATED 15.4.2014 INASUMUCH AS THE REOPENING U/S. 148 HAS BEEN QUASHED BY ITAT VIDE ORDER DATED 15.4.2014. B) THE ITAT ORDER DATED 15.4.2014 AT PARA 22, PAGE 23 MENTIONS THAT THE (QUOTE) ....TOO PROCEEDINGS HAVE BEEN INITIATED WITH THE APPROVAL OF CIT(CENTRAL) DELHI BETWEEN THE PERIOD OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR (UNQUOTE) AND AGAIN STATES AT PARA 24, PAGE 23 OF ORDER DATED 15.4.2014 THAT ..IN ALL THE ABOVE 16 APPEALS THE UNDISPUTED FACTUAL POSITION IS THAT THE NOTICES U/S. 148 HAD BEEN ISSUED BEYOND THE PERIOD OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT AND .... (EMPHASIS SUPPLIED). THUS THERE IS AN INHERENT CONTRADICTION IN THE FACTUAL RECORDING AS TO THE TIME LIMIT WHEN THE NOTICE U/S. 148 WAS ISSUED AS RECORDED BY THE ITAT AMPLIFIED BY THE FACT THAT CIT(A) HAD QUASHED THE 148 PROCEEDINGS OF ASSESSEEE VIDE PARA 3.1.6, AT PAGE 7 OF THE CIT(A) ORDER NO : 1097/11-12 DATED 30.3.1013 FOR A.Y. 2004-05 ON GROUNDS THAT AS PER 259 ITR 19 (SC), THE AO HAS TO DISPOSE OFF OBJECTIONS BY A SPEAKING ORDE R BEFORE PROCEEDING WITH THE ASSESSMENT READ WITH PARA 3.1.9 AT PAGE OF CIT(A) ORDER. ITA NO. 3638/DEL/2013 4 C) FURTHER IN ITATS ORDER DATED 15.4.2014 IN LEAD CASE OF ARVIND KHANNA IN 1726-D-2010 THE PROCEEDINGS UNDER SECTION 148 WERE QUASHED VIDE PAGE 11 OF ORDER DATED 15.4.2014 RELYING ON 345 ITR 223 (DEL) IN THE CASE OF CIT VS. SSPLS SIDDARTHA LTD. D) THE REVENUE HAD MOVED APPLICATION FOR CONSOLIDATION OF APPEALS AT VARIED POINTS OF TIME S O THAT A HOLISTIC VIEW MAY BE TAKEN IN THE MATTER BEFORE F BENCH. AS PER PROCEDURE DEVELOPED BY PRACTICE, THE NAME OF THE APPELLANT, ITA NOS, A.YS ARE MENTIONED AT THE VERY OUTSET AT THE START OF ITATS ORDER. ON PERUSAL OF SAME, THE ITA NO. 3638 - D-13 DOES NOT FINDS MENTION ON PAGE 2 OF ITATS ORDER DATED 15.4.2014 WHEREAS THE ITA NO. 3294- DEL-2013 FOR A.Y. 2004-05 FIGURES. 3. WE HAVE HEARD BOTH THE PARTIES WITH REFERENCE TO THE MATERIAL ON RECORD. THE CAUSE LIST AND RECORD OF F BENCH CLERK PLACED BEFORE US BY OUR BENCH CLERK DOES NOT REVEAL LISTIN G AND DISPOSAL OF REVENUES APPEAL IN ITA NO. 3638/DEL/2013 ALONGWITH ASSESSEES APPEAL IN ITA NO. 3294/DEL/2013, EVEN THOUGH, PARA 24 OF THE AFORESAID APPELLATE TRIBUNAL ORDER REFERS TO DISPO SAL OF SUCH AN APPEAL BY THAT DIVISION BENCH. WE ARE NOT AWARE OF THE CIRCUMSTANCES AND THE SAME IS ALSO NOT REVEALED FRO M RECORD AS TO HOW DISPOSAL OF ITA NO. 3638/DEL/2013 FINDS MENTION IN PARA 24 OF THE SAID TRIBUNAL ORDER. LET THAT AS IT MAY BE, I T IS AN ADMITTED POSITION THAT THE F BENCH OF THE APPELLATE TRIBUN AL BY ITS ORDER DATED 15.4.2014 IN ASSESSEES APPEAL IN ITA NO. 329 4/DEL/2013 FOR A.Y. 2004-05 HAS HELD THAT REOPENING OF ASSESSMENT U/S. 147 OF THE ACT AND ALSO THE CONSEQUENT ASSESSMENT FRAMED U/S. 147/143(3) OF THE ACT ARE INVALID AND THUS QUASHED THE SAME. TH AT BEING SO, AFTER ITA NO. 3638/DEL/2013 5 THE REASSESSMENT PROCEEDINGS HAVE BEEN HELD INVALID , WHATEVER FOLLOWS THEREAFTER MUST ALSO NECESSARILY BE INVALI D AND NONE OF THE ADDITIONS CAN BE SUSTAINED BY THIS TRIBUNAL HAS ALS O BEEN OPINED BY HONBLE CALCUTTA HIGH COURT IN THE CASE OF RAWATMAL HARAKCHAND VS. CIT (1981) 129 ITR 346 (CAL.). CONSEQUENT TO TRIBUN ALS ORDER DATED 15.4.2014 IN ITA NO. 3294/DEL/2013, WE DISMISS THE APPEAL FILED BY THE REVENUE. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/5/2014. SD/- SD/- [ [[ [U.B.S. BEDI U.B.S. BEDI U.B.S. BEDI U.B.S. BEDI] ]] ] [ [[ [B.R. JAIN B.R. JAIN B.R. JAIN B.R. JAIN] ]] ] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 05/5/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES