Sh. Rakesh Kumar, New Delhi V. ITO, Bulandshahr

ITA 3743/DEL/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4532 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S ANANT
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3743/DEL/2016 A.Y : 20 0 9 - 10 SH. RAKESH KUMAR, C/O SH. RAVI GUPTA, ADVOCATE, E-6A, KAILASH COLONY, NEW DELHI 110 048 (PAN: AXMPK7608P) VS. ITO, WARD 3(3), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PC YADAV, NONE DEPARTMENT BY : SH. B.S. ANANT, SR. DR. ORDER THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDER DATED 01.3.2016 PASSED BY THE LD. C IT(A), GHAZIABAD RELATING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWIN G GROUNDS:- I) THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE OR DER PASSED BY THE LD. CIT(A) IS BAD BOTH IN THE EYES OF LAW AN D ON FACTS. II) THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION MADE BY THE AO OF RS. 9,52, 041/- BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) RWS 19 4H, WHICH IS NOT APPLICABLE ON FACTS AS WELL AS AT LAW. III) THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ADDITION OF SECTION 40(A)(IA) RWS 19 4H IGNORING THE NATURE OF BUSINESS AS WELL AS NATURE OF EXPENSE S. IV) THAT THE IMPUGNED APPELLATE ORDER IS ARBITRARY, IL LEGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES OF C ONTEMPORARY JURISPRUDENCE. 2 V) THAT THE APPELLANT CRAVE LEAVE TO ADD/ ALTER ANY / ALL GROUNDS OF APPEAL BEFORE AT THE TIME OF HEARING OF THE APPE AL. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT BEING REPEATED HERE FOR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING, SH. P.C. YADAV, ADVOCATE /LD. COUNSEL FOR THE ASSESSEE STATED THAT ASSESSEE HAS FILED THE APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER DATED 30.3.2014 PASSED BY THE LD. CIT, GHAZIABAD U/S. 263 OF THE I.T. ACT, 1961 AND THE TRIBUNAL HAS ACCE PTED THE APPEAL OF THE ASSESSEE BY SETTING ASIDE THE REVISIONAL ORDER PASS ED U/S. 263 BY THE LD. CIT, GHAZIABAD, VIDE ITS ORDER DATED 13.08.2018 IN ITA NO. 3386/DEL/2014 (AY 2009-10). HENCE, HE SUBMITTED TH AT THE ASSESSMENT ORDER DATED 05.01.2015 U/S. 263/143(3) OF THE I.T. ACT, 1961 HAS BECOME INFRUCTUOUS AND MAY BE QUASHED AS SUCH. HE HAS F ILED THE COPY OF THE TRIBUNALS F BENCH ORDER DATED 13.8.2018 PASSED IN ITA NO. 3386/DEL/2014 (AY 2009-10) IN ASSESSEES OWN CASE I N WHICH THE BENCH HAS HELD THAT ASSESSMENT IS NOT PREJUDICIAL TO THE INTEREST OF REVENUE. SINCE ONE OF THE LIMB OF EXERCISING JURISDICTION U/S. 263 IS MISSING, THEREFORE, SUCH REVISIONAL JURISDICTIONAL U/S. 263 CANNOT BE SUSTAINED. IN VIEW OF ABOVE, LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE APPEAL OF THE ASSESSEE MAY BE ALLOWED BY QUASHING THE ASSESSM ENT ORDER DATED 05.1.2015. 4. ON THE OTHER HAND, LD. DR HAS NOT PRODUCED ANY C ONTRARY EVIDENCE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS, ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE ITAT ORDER DATED 13.8.2018. I FIND THAT ASSESSEE HAS FILED THE APPEAL BEFORE THE TRIBU NAL AGAINST THE ORDER DATED 30.3.2014 PASSED BY THE LD. CIT, GHAZIABAD U/ S. 263 OF THE I.T. ACT, 1961 AND THE TRIBUNAL HAS ACCEPTED THE APPEAL OF THE ASSESSEE BY SETTING ASIDE THE REVISIONAL ORDER PASSED U/S. 263 BY THE LD. CIT, GHAZIABAD, VIDE ITS ORDER DATED 13.08.2018 IN ITA NO. 3386/DEL/2014 3 (AY 2009-10). I FURTHER FIND THAT THE TRIBUNALS F BENCH VIDE ITS ORDER DATED 13.8.2018 PASSED IN ITA NO. 3386/DEL/2014 (AY 2009-10) IN ASSESSEES OWN CASE HAS HELD THAT ASSESSMENT IS NOT PREJUDICIAL TO THE INTEREST OF REVENUE. SINCE ONE OF THE LIMB OF EX ERCISING JURISDICTION U/S. 263 IS MISSING, THEREFORE, SUCH REVISIONAL JURISDIC TIONAL U/S. 263 CANNOT BE SUSTAINED. THEREFORE, IN MY CONSIDERED VIEW, THE AS SESSMENT ORDER DATED 05.01.2015 U/S. 263/143(3) OF THE I.T. ACT, 1961 HA S BECOME INFRUCTUOUS AND DESERVE TO BE QUASHED. I HOLD AND DIRECT ACCORD INGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON 29/10/2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 29/10/2018 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 4