Uppal Towers Pvt. Ltd.., Dehradun V. ACIT, Meerut

ITA 3858/DEL/2011

• Counselvise Citation: 385820114 RSA 2011
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 26-06-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 12-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: REENA S PURI; B R R KUMAR
• Keywords: Reasonable cause
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: H NEW DELHI BEFORE SHRI A.D.JAIN, JUDICIAL MEMBER AND SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO: 3857/DEL/2011 A.Y. : - 2006-07 UPPAL NATURE FARMS & RETREATS P.LTD. VS. ACIT, CENT RAL CIRCLE 16 D, OLD SURVEY ROAD MEERUT DEHRADUN PAN: AAACU6894K ITA NO: 3858, 3859, 3860 & 3861/DEL/2011 A.Y. : - 2003-04, 2004-05, 2005-06, 2006-07 UPPAL TOWERS .LTD. VS. ACIT, CENTRAL DEHRADUN MEERUT (APPELLANT) (RESPONDE NT) APPELLANT BY : SH. K.SAMPATH, ADV. RESPONDENT BY : SMT.REENA S PURI, D.R. & SHRI B.R.R.KUMAR, CIT, D.R. O R D E R PER BENCH ALL THESE APPEALS ARE FILED BY THE ASSESSEE AND AR E DIRECTED AGAINST SEPARATE ORDERS OF THE CIT(A), MEERUT. THERE IS A DELAY OF 55 DAYS IN FILING OF ALL THE APPEALS. THE ASSESSEE FILED A P ETITION FOR CONDONATION OF DELAY, SUPPORTED BY AN AFFIDAVIT AND COPIES OF MEDI CAL RECORDS. AFTER HEARING THE RIVAL CONTENTIONS AND PERUSING THE RECO RD, WE ARE OF THE CONSIDERED OPINION THAT THIS IS A FIT CASE FOR COND ONATION OF DELAY AS THE ASSESSEE WAS PREVENTED BY A REASONABLE CAUSE IN FIL ING THE APPEALS IN TIME. ITA NOS. 3857 TO 3861/DEL/2011 PAGE 2 OF 6 UPPAL NATURE FARMS & RETREATS P.LTD. 2. WE HAVE HEARD THIS CASE ON A PRELIMINARY ISSUE, WHICH IS SIMILAR FOR ALL THE A.YS. THE GROUNDS IN QUESTION READ AS FOLLOWS. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD.CIT(A) ERRED IN:- 1. DECLINING TO ALLOW ADDITIONAL GROUND OF APPEAL C ONTESTING THE ASSESSMENT FRAMED AS ILLEGAL, VOID AB-INITIO AND WI THOUT JURISDICTION DUE TO THE FOLLOWING REASONS. (A) THAT ACCORDING TO CIT(A) IT WAS TAKEN TOO LATE IN THE PROCEEDINGS, EVEN THOUGH, THE FACT IS THAT THERE IS NO TIME LIMIT UNDER THE RULES TO FILE AN ADDITIONAL GROUND. (B) THAT THE APPELLANT DID NOT SATISFY THE CONDITIO N THAT OMISSION OF SUCH GROUND OF APPEAL WAS NOT WILLFUL OR UNREASO NABLE WITHOUT CIT(A) GIVING ANY REASONS EVEN THOUGH THE GROUND WA S PURELY LEGAL; 2. NOT HOLDING THAT THE ASSESSMENT FRAMED BY THE LD .A.O. IS ILLEGAL, VOID AB INITIO AND WITHOUT JURISDICTION IN VIEW OF THE JUDGEMENT OF THE JURISDICTIONAL HIGH COURT OF ALLAH ABAD IN THE CASE OF VANDANA VERMA IN ITA NO. 21/ALL./2009 DATED 9.10.2009 SINCE THE ASSESSMENT HAS BEEN MADE IN THE INDIVIDUA L NAME OF THE APPELLANT EVEN THOUGH THE PANCHNAMA AND HENCE S EARCH WARRANT WAS IN THE JOINT NAMES OF THE APPELLANT AND SENIOR CITIZEN HOME COMPLEX WELFARE SOCIETY. 3. WE HAVE HEARD MR.K.SAMPATH, LD.COUNSEL FOR THE A SSESSEE AND SHRI BRR KUMAR AND SMT.VEENA S PURI ON BEHALF OF TH E REVENUE. 4. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRC UMSTANCES OF THE CASE AND A PERUSAL OF THE PAPERS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW WE HOLD AS FOLLOWS. THE FIRST AP PELLATE AUTHORITY AT PARA 6 PAGE 2 STATES AS FOLLOWS. 6. THE APPELLANT HAS ALSO TAKEN AN ADDITIONAL GRO UND OF APPEAL AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSMENT FRAMED BY THE LD.AO IS ILLEGAL, VOID AB INITIO AND WITHOUT JURISDICTION IN VIEW OF THE JUDGEMENT OF THE JURISD ICTIONAL HIGH COURT OF ALLAHABAD IN THE CASE OF VANDANA VERMA IN ITA 21 /ALL/2009 DT. ITA NOS. 3857 TO 3861/DEL/2011 PAGE 3 OF 6 UPPAL NATURE FARMS & RETREATS P.LTD. 9.10.2009 SINCE THE ASSESSMENT HAS BEEN MADE IN THE INDIVIDUAL NAME OF THE ASSESSEE EVEN THOUGH THE PANCHNAMA AND HENCE, SEARCH WARRANT WAS IN THE JOINT NAME OF THE APPELLA NT AND SENIOR CITIZENS HOME COMPLEX WELFARE SOCIETY. 5. THEREAFTER AT PARA 6.1 THE FINDING READS AS FOLL OWS. 6.1. THE ADDITIONAL GROUND HAS BEEN TAKEN TOO LATE DURING THE APPELLATE PROCEEDINGS AND, THEREFORE, I AM NOT SATISFIED THAT OMISSION OF THE GROUND FROM THE FORM OF APPEAL WAS NOT WILLFUL OR UNREASONABLE. THE APPELLANT IS THEREFORE, NOT ALLO WED TO GO INTO THE GROUND TAKEN AS ADDITIONAL GROUND. 6. MR.SAMPATH ARGUES THAT THE PANCHNAMA HAS BEEN DR AWN UP IN 2 NAMES AND HENCE THE WARRANT WOULD HAVE BEEN ON JOI NT NAMES AND THE ASSESSEE IS ENTITLED TO TAKE THE ADDITIONAL GROUND, BY RELYING ON THE PROPOSITIONS OF LAW LAID DOWN BY THE JURISDICTIONAL HIGH COURT ON THE ISSUE. HE SUBMITS THAT THE FINDING OF THE CIT(A) I S AGAINST LAW, AS THE ISSUE IS A JURISDICTIONAL ISSUE AND GOES TO THE RO OT OF THE MATTER AND THE FACTS ARE ON RECORD. 7. LD.D.R. SMT VINA S PURI ON THE OTHER HAND STATES THAT THE GROUND CANNOT BE ENTERTAINED AS IT CANNOT BE INFERRED THAT THE WARRANT HAS BEEN GIVEN IN JOINT NAMES, FOR THE REASON THAT THE PANCH ANAMA HAS BEEN DRAWN IN JOINT NAMES. SHE RELIED ON THE FOLLOWING CASE LAWS AND SUBMITTED THAT ADDITIONAL GROUND WAS RIGHTLY NOT AD MITTED BY THE CIT(A) AS THERE WAS A DELAY. 1. SRI VENKATESA PAPER & BOARDS LTD. 98 ITD 200 (CH ENNAI); 2. SUKHVINDER SINGH ITA 99/09-2010-TIOL-445-HC(P&H) -IT, 8. IN REPLY THE LD.COUNSEL SUBMITTED THAT THE DECIS ION CITED BY THE D.R. ARE NOT APPLICABLE TO THE FACTS OF THE CASE AS THEY DEAL WITH ITA NOS. 3857 TO 3861/DEL/2011 PAGE 4 OF 6 UPPAL NATURE FARMS & RETREATS P.LTD. CONDONATION OF DELAY, WHICH IS NOT THE ISSUE RAISED BY THE ASSESSEE. HE RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF JUTE CORPORATION OF INDIA VS. CIT ;AND ANOTHER, 187 ITR 688 (S.C.) AND THE DECISION IN THE CASE OF NATIONAL THERMAL POWER & CO .LTD. VS CIT (1998) 229 ITR 383(S.C.). 9. IN OUR CONSIDERED OPINION THE FACT THAT THE PANC HANAMA HAS BEEN DRAWN UP IN JOINT NAMES, LEADS TO A PROBABLE INFERE NCE THAT THE WARRANT IN QUESTION WAS ISSUED IN JOINT NAMES. THIS FACT H AS TO BE VERIFIED. THE ASSESSEE HAS RAISED A JURISDICTIONAL ISSUE AND ALSO RELIED ON THE JUDGEMENT OF THE JURISDICTIONAL HIGH COURT. IN OUR CONSIDERED OPINION THE FIRST APPELLATE AUTHORITY SHOULD HAVE ADMITTED THIS ADDITIONAL GROUND, WHICH GOES INTO THE ROOT OF THE MATTER AND ADJUDICATED THE SAME. THE ADDITIONAL GROUND CANNOT BE REJECTED WHEN IT IS A PURELY LEGAL GROUND AND WHEN THE FACTS ARE ON RECORD. THE DECISION OF THE APEX COURT IN THE CASE OF JUTE CORPORATION OF INDIA (SUPRA) HAS CLEAR ON THE MATTER. GROUND SHOULD NOT HAVE BEEN REJECTED ON THE GROUND OF DELAY, AS IT WAS TAKEN BEFORE DISPOSAL OF THE APPEAL BY THE LD.CIT(A ). THE CASE LAWS RELIED UPON BY THE LD.CIT., D.R. ARE NOT RELEVANT TO THE I SSUE ON HAND. THUS WE DIRECT THE CIT(A) TO ADMIT THIS ADDITIONAL GROUN D AND ADJUDICATE THE SAME ON MERITS. IN VIEW OF THE ABOVE WE SET ASIDE ITA 3858/DEL/11 FOR THE A.Y. 2003-04, ITA 3859/DEL/11 FOR THE A.Y. 2004 -05 AND ITA 3860/DEL/11 FOR THE A.Y. 2005-06. AS WE HAVE SET A SIDE THE MATTER ON THE PRELIMINARY ISSUE, THE OTHER GROUNDS ON MERITS ARE NOT ADJUDICATED. ITA NOS. 3857 TO 3861/DEL/2011 PAGE 5 OF 6 UPPAL NATURE FARMS & RETREATS P.LTD. 10. COMING TO ITA 3857/DEL/11 FOR THE A.Y. 2006-07 AND ITA 3861/DEL/11 FOR THE A.Y. 2006-07, THE ADDITIONAL GR OUND RAISED BY THE ASSESSEE WHICH WAS DECLINED TO BE ADMITTED IS ON TH E ISSUE OF JURISDICTION. THE A.O. HAS ISSUED A NOTICE U/S 148 AND REOPENED THE ASSESSMENTS U/S 147. THE ASSESSEE CHALLENGED SUCH REOPENING BY WAY OF ADDITIONAL GROUND. THE FIRST APPELLATE AUTHORIT Y DECLINED TO ADMIT THIS GROUND BY OBSERVING THAT THE SAME WAS TAKEN TO O LATE DURING THE APPELLATE PROCEEDINGS. 11. FOR THE REASONS GIVEN WHILE DISPOSING OFF ITA 3 858/DEL/11 TO 3860/DEL/11 WE SET ASIDE THIS ISSUE TO THE FILE OF A.O. FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. THE CIT(A) IS DIRECTED TO ADMIT THESE ADDITIONAL GROUND AND ADJUDICATE THE SAME ON MERITS. THE OTHER ISSUES ARE NOT ADJUDICATED IN VIEW OF OUR REMANDING THE APPEAL TO THE FILE OF THE LD.CIT(A). 12. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JUNE, 2012. SD/- SD/- (A.D.JAIN) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 29 TH JUNE, 2012 *MANGA ITA NOS. 3857 TO 3861/DEL/2011 PAGE 6 OF 6 UPPAL NATURE FARMS & RETREATS P.LTD. COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR // C O P Y // 1. DATE OF DICTATION: 2. DRAFT PLACED BEFORE THE AUTHOR ON: 3. DRAFT PROPOSED AND PLACED BEFORE SECOND MEMBER ON: 4. DRAFT DISCUSSED/APPROVED BY THE SECOND MEMBER ON: 5. APPROVED DRAFT CAME TO SR.P.S. ON: 6. DATE OF PRONOUNCEMENT : 7. FILE SENT TO BENCH CLERK ON : 8. DATE ON WHICH FILE GIVEN TO HEAD CLERK ON: 9. DATE OF DISPATCHING THE ORDER ON :