Asha Jain, V. ACIT, Central Circle-8,

ITA 3884/DEL/2005

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3486 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 19-07-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 06-10-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Opportunity of being heard
• Section: 234B; 147; 148

Judgement Text

I.T.A. NO.3884 /DEL/05 1/4 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I NEW DELHI) BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.3884 /DEL/2005 ASSESSMENT YEAR : 1999-2000 MRS. ASHA JAIN, ACIT, 28-NEW ROHTAK ROAD, CENTRAL CIRCLE-8, NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO.ACBPJ-8968-P APPELLANT BY : SHRI ASHWANI TANEJA,. ADVOCATE. RESPONDENT BY : MS. ANUSHA KHURANA, DR. ORDER PER A.K. GARODIA, AM: THIS IS AN ASSESSEE'S APPEAL DIRECTED AGAINST THE O RDER OF LD CIT(A)-II, NEW DELHI DATED 29.7.2005 FOR ASSESSMENT YEAR 1999- 00. 2. CONCISE GROUNDS RAISED BY THE ASSESSEE READ AS U NDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF LD ASSESSING OFFICER IN FRAMING THE IMPUGNED ASSESSMEN T U/S 147/143(3) AND THAT TOO WITHOUT COMPLYING WITH THE MANDATORY C ONDITIONS AS PRESCRIBED UNDER SECTION 147 TO 151 OF THE INCOME T AX ACT, 1961. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTI ON OF LD ASSESSING OFFICER IN MAKING ADDITION OF RS.6 LAKHS ON ACCOUNT OF ALLEGED UNEXPLAINED . I.T.A. NO.3884/DEL/05 2/4 CASH DEPOSIT IN BANK ACCOUNT AND IN ANY CASE, THE A DDITION COULD NOT BE MADE IN THE IMPUGNED ASSESSMENT ORDER. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD ASSESSING OFFICER IN CHARGING OF INTEREST U/S 234B OF THE INC OME TAX ACT, 1961. 3. IT WAS SUBMITTED BY LD AR OF THE ASSESSEE THAT O BJECTIONS WERE RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER REGARDING VALIDITY OF RE-ASSESSMENT PROCEEDINGS AND THE COPY OF OBJECTION LETTER DATED 18.1.2005 SUBMITTED TO THE ASSESSING OFFICER ON THE SAME DATE IS AVAILABLE ON PAGES 48-49 OF THE PAPER BOOK BUT NO SPECIFIC ORDER HAS BEEN PASSED BY THE A SSESSING OFFICER AGAINST THESE OBJECTIONS RAISED BY THE ASSESSEE. IT WAS HIS SUBMISSION THAT THE REOPENING IS NOT VALID. IT WAS ALSO HIS SUBMISSION THAT ON MERIT ALSO, THE ASSESSING OFFICER HAS NOT PROVIDED ADEQUATE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. AS AGAINST THIS, LD DR OF THE REVENUE SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT AGAINST THIS LETT ER DATED 18.1.2005 AS PER WHICH THE ASSESSEE HAS RAISED VARIOUS OBJECTIONS AGAINST VALIDITY OF RE-ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOT PASSED A NY SPECIFIC ORDER AS HAS BEEN HELD BY THE HON'BLE APEX COURT IN THE JUDGMEN T RENDERED IN THE CASE OF GKN DRIVESHAFT INDIA LTD. V. ITO AS REPORTED IN 259 ITR 19 AND HENCE, IN OUR CONSIDERED OPINION, THE MATTER HAS TO GO BACK TO TH E FILE OF THE ASSESSING OFFICER FOR HIS DECISION ON THIS ASPECT. AS PER THIS LETTER DATED 18.1.2005 AVAILABLE ON PAGES 48-49 OF THE PAPER BOOK, IT IS THE SUBMISSION OF THE ASSESSEE THAT SPECIFIC OBJECTIONS WERE RAISED BEFORE THE ASSESSING OFFICER VIDE LETTER DATED 27.12.2004 FILED ON 28.12.2004 BUT THESE OBJECTIONS HAVE NOT B EEN DISPOSED OFF. IN THE ASSESSMENT ORDER ALSO, WE FIND THAT THE ASSESSING O FFICER IS STATING ON PAGE NO.2 OF THE ASSESSMENT ORDER THAT ON 28.12.2004, SHRI NA RANG FILED LETTER DATED 27.12.2004 AND REITERATED THAT THE PROCEEDINGS U/S 148 WERE UN-WARRANTED AND BAD IN LAW BUT NO SPECIFIC ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER REGARDING THESE OBJECTIONS RAISED BY THE ASSESSEE A ND HENCE AS PER THIS . I.T.A. NO.3884/DEL/05 3/4 JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF GKN DRIVESHAFT INDIA LTD. (SUPRA), WE REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR PASSING SPECIFIC ORDER AGAINST THESE OBJECTIONS RAI SED BY THE ASSESSEE AGAINST THE VALIDITY OF RE-ASSESSMENT PROCEEDINGS. THE ASS ESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW IN THIS REGARD AFTER PRO VIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. REGARDING THE MERIT OF ADDITIONS MADE BY THE ASS ESSING OFFICER, WE FEEL THAT THE SAME SHOULD ALSO BE DECIDED BY THE ASSESS ING OFFICER AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE BECAUSE IT WAS THE OBJECTION OF THE LD AR OF THE ASSESSEE BEFORE U S THAT ADEQUATE OPPORTUNITY WAS NOT PROVIDED BY THE ASSESSING OFFICER AND SINCE THE MATTER IS GOING BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECIS ION ON THE LEGAL ISSUE REGARDING VALIDITY OF RE-ASSESSMENT PROCEEDINGS, THE FACTUAL ASPECT SHOULD ALSO BE DECIDED BY HIM AFRESH IF HE FINDS THAT THE ASSESSEE DOES NO T HAVE ANY CASE ON LEGAL ISSUE. WE DIRECT THE ASSESSING OFFICER ACCORDINGLY. HE SHOULD PASS NECESSARY ORDER AS PER LAW ON MERIT ALSO AS PER ABOVE DISCUSS ION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. THE THIRD ISSUE RAISED BY THE ASSESSEE REGARDING CHARGING OF INTEREST U/S 234B IS CONSEQUENTIAL. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JULY, 2010. SD/- SD/- (RAJPAL YADAV) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 23.7.2010. HMS . I.T.A. NO.3884/DEL/05 4/4 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).