Pawan Kumar & Sons (HUF), V. ITO Ward -39 (2),

ITA 3864/DEL/2007

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5670 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-03-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 17-09-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK
• Keywords: Gift
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC : NEW DELHI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER ITA NO.3864/DEL/2007 ASSESSMENT YEAR : 1999-2000 M/S PAWAN KUMAR & SONS (HUF), C-115, MAHENDRU ENCLAVE, G.T.KARNAL ROAD, DELHI 110 033. PAN NO.AAAHP6269G. VS. INCOME TAX OFFICER, WARD-39(2), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANDEEP SAPRA, ADVOCATE. RESPONDENT BY : SMT.PRATIMA KAUSHIK, DR. ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(A) DATED 30.7.2007 FOR THE AY 1999-2000, IN THE MATTER OF OR DER PASSED U/S 144/148 OF THE IT ACT. 2. IN THE FIRST GROUND OF APPEAL, THE ASSESSEE HAS OBJECTED THE WRONG ASSUMPTION OF JURISDICTION BY THE AO, WARD-39(2), N EW DELHI U/S 147 OF THE IT ACT. IT WAS CONTENDED BY THE LEARNED AR THAT ASSES SEE WAS ALREADY FILING RETURN WITH AO, ROHTAK, HE ALSO PLACED ON RECORD THE EVIDE NCE WITH REGARD TO FILING OF RETURN FOR THE RELEVANT AY 1999-2000 UNDER CONSIDER ATION ON 17.8.1999 WITH ITO, ROHTAK ALONGWITH COPY OF COMPUTATION OF INCOME, COP Y OF CAPITAL ACCOUNT, BALANCE SHEET AND COPIES OF ACCOUNTS OF THE ASSESSE E, COPY OF AFFIDAVIT OF GIFT DEED OF THE DONOR SMT.SUDHA GUPTA CONFIRMING THE GIFT OF RS.1 LAKH AND COPY OF RECEIPT EVIDENCING FILING OF RETURN ON 31.8.1998 BY SMT.SUD HA GUPTA WITH AO, DELHI FOR THE AY 1998-99. HE ALSO PLACED ON PAPER BOOK COPY OF RECEIPTS EVIDENCING FILING OF RETURN ON 31.3.2002 WITH AO, ROHTAK FOR AY 2000- 01 AND ALSO EVIDENCE FOR ITA-3864/DEL/2007 2 FILING OF RETURN FOR AY 2001-02 ON 19.3.2003. AS P ER LEARNED AR, IN VIEW OF ALL THIS FACTUAL POSITION, THE ASSUMPTION OF JURISDICTI ON BY THE AO OF DELHI WAS WRONG, THEREFORE IN VIEW OF THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF ANJALI DUA 174 TAXMAN 72 AND GANGA DHAR AGGARWAL 164 T AXMAN 61, THE ASSUMPTION OF JURISDICTION WAS ILLEGAL. 3. ON THE OTHER HAND, CONTENTION OF LEARNED DR WAS THAT ONLY COPY OF COMPUTATION OF INCOME WAS FILED BEFORE THE AO, DELH I WHO HAS ISSUED NOTICE U/S 148 AND ALL THE OTHER DOCUMENTS WERE FILED ONLY BEF ORE THE AO, ROHTAK, THEREFORE WITHOUT VERIFYING ALL THESE DOCUMENTS, IT CANNOT BE SAID THAT AO, DELHI HAS WRONGLY ASSUMED HIS JURISDICTION. 4. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOUN D FROM THE RECORD THAT ALL THE DOCUMENTS STATED HEREINABOVE WERE FILED BEFORE THE AO, ROHTAK. EVEN FOR THE SUBSEQUENT ASSESSMENT YEARS I.E. 2000-01 & 2001-02, THE RETURN WAS FILED WITH THE ITO, ROHTAK. IN THE RETURN FILED FOR AY 1999-2000 WHEREIN ASSESSEE WAS ALLEGED TO HAVE TAKEN GIFT FROM SMT.SUDHA GUPTA, WAS ALSO F ILED WITH THE ITO, ROHTAK ON 17.8.1999 MUCH PRIOR TO THE ISSUE OF NOTICE BY THE AO U/S 148 ON 28.3.2006. THE RETURN FILED BY THE ASSESSEE WAS ALSO ACCOMPANIED B Y COPY OF RETURN FILED BY SMT.SUDHA GUPTA, DONOR WITH THE AO, DELHI FOR AY 19 98-99. HON'BLE DELHI HIGH COURT IN THE CASE OF GANGA DHAR AGGARWAL (SUPRA) HE LD THAT WHERE THE CASE FILED HAS BEEN TRANSFERRED U/S 127 FROM ONE PLACE TO ANOT HER PLACE, NO ASSESSMENT CAN BE FRAMED BY THE AO FROM WHERE FILE HAS BEEN TRANSFERR ED. IN THE INSTANT CASE BEFORE US, THERE IS NO DISPUTE TO THE FACT THAT RETURN FOR THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION WAS ALREADY FILED BEFORE THE ITO, ROH TAK MORE THAN FIVE YEARS PRIOR TO THE ISSUE OF NOTICE U/S 148 BY THE ITO, DELHI AN D EVEN THE SUBSEQUENT RETURNS WERE ALSO FILED BEFORE THE ITO, ROHTAK, THEREFORE, ITO, DELHI HAS NO JURISDICTION OVER THE ASSESSEE. ANY PROCEEDINGS UNDER THE IT AC T CAN BE TAKEN BY THE ITO CONCERNED HAVING JURISDICTION OVER THE ASSESSEE. S INCE THE ASSESSMENT WAS FRAMED U/S 144/147 AND THE RETURNS AND OTHER DOCUMENTS FIL ED BEFORE THE ITO, ROHTAK ITA-3864/DEL/2007 3 WERE NOT BEFORE THE AO, DELHI, I RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR VERIFYING ALL THESE DOCUMENTS AND IF HE FINDS THAT ALL THESE DOCUMENTS WERE FILED BEFORE THE ITO, ROHTAK, THE PROCEEDINGS INITIATED U /S 147 WILL BE HAVING NO LEGS TO STAND. I DIRECT ACCORDINGLY. 5. IN THE RESULT, THE APPEAL IS ALLOWED IN TERMS IN DICATED HEREINABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON 8 TH MARCH, 2010. SD/- (R.C.SHARMA) ACCOUNTANT MEMBER DATED : 08.03.2010. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR ITA-3864/DEL/2007 4