SHRIMATI SIMRAN PARKASH KAUR, BATALA V. INCOME TAX OFFICER WARD-2, BATALA

ITA 40/ASR/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 8673 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 19-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 40/ASR/2020 Assessment Year: 2009-10 Smt. Simran Parkash Kaur W/O. Sh. Gurdial Singh, Vill. Bhagowal Pati Khasa Tehsil Batala [PAN: AHMPK0676R] Vs. Income Tax Officer, Ward -2, Batala (Appellant) (Respondent) Appellant by : Sh. Vinamar Gupta, CA Respondent by: Sh. S. M. Surenderanath, Sr DR Date of Hearing: 14.07.2022 Date of Pronouncement: 10.08.2022 ORDER Per Anikesh Banerjee, JM: The instant appeal is directed against the order of Ld. Commissioner Income Tax (Appeals)-1, Amritsar, {in brevity CIT(A)} bearing appeal no. 10146/2017-18 date of order 31.102019, order passed u/s. 250(6) of the Income Tax Act, 1961 (in brevity of the Act) for the Assessment year 2009-10. The impugned order was generated from the order of the ld. Income Tax Officer, Ward-2, Batala (in brevity A.O) order passed u/s.144 of the Act, date of order 14.10.2016. 2. Tersely we advert the fact of the case. The assessee deposited cash amount to Rs.10,10,000/- in his saving bank account. Notice u/s. 148 was issued, which was served on assessee by affixation on order dated 28.12.2016. The assessment was completed u/s. 144 of the Act and addition was made Rs.10,10,000/- in the total income of the assesse. The assesse was not filed any return during the year. The ld. Counsel of the assessee agitated before the Appellate Authority about the jurisdiction of the AO u/s. 127 of the Act. The matter was resolved, and order was passed by ltd., CIT(A). The ld. Counsel of the assessee further agitated about the jurisdiction of the notice u/s. 148 for the defective service of notice to the assesse. The issue of defective service of notice to assessee was not raised before the CIT(A), as per the order of the CIT(A). The dispute is raised that the particular ground was taken by assessee in the appeal before the Appellate Authority. The ld. CIT(A) resolved the jurisdictional issue u/s. 127 of the Act and upheld the addition made by the ld. AO. Aggrieved assessee filed the appeal before us. 3. The ld. Counsel of the assesse filed Paper Book on 15.06.2022 which is kept in record. The ld. Counsel first pointed out that letter was filed before the ld CIT(A) on 22.03.2009. A copy of letter is annexed in page no. 15 to 25 of APB. In this letter the service of notice was challenged. Ground of appeal was annexed with paper book, which is reproduced hereunder: Grounds of Apppeal: 1. The assessment order is bad in law because reasons have been recorded by some other office and order has been framed by some other officer. 2. The assessment framed is bad in the eyes of law because case has been transferred without complying the provisions of section 127. 3. The reopening is bad in eyes of law because reasons recorded by the ITO Gurdaspur do not bear any date. 4. The reopening is bad in eyes lf law because no valid notice u/s.133(6) has been issued/dispatched. 5. The notice u/s. 148 and assessment order has not been served through affixture without the place of assesse being identified by any witnesses. 6. That reopening is bad in the eye of law because sanction has been recorded both by Joint Commissioner Range VI and CIT Range II in a ritualistic manner. 7. The appellant craves leave to and permission of CIT(A) to add to or any grounds of appeal at any time up to final decision of the appeal. 8. The appellant craves leave and sanction of Hon’ble CIT(A) to file additional evidence, if so required for proper prosecution of the case, based on facts and circumstances, which has not been or could not be adduced before lower authorities either because proper and sufficient opportunity was not provided or because it was not solicited its need was not appreciated. 9. The order by Lt. A.O be set aside as null and void and/ or such other relief as your honour may deem fit, under the circumstances of the case, be granted.” In factual contrary the ld. CIT(A) had affixed the ground of appeal of the assessee which is reproduced as below:- “1. The AO has erred in law and facts and circumstances of the case in making addition of Rs. 1010000/-. 2. The Ld. AO has erred in law and facts and circumstances of the case by making addition on the basis of notice u/s 148 issued by the non-jurisdictional AO. 3. The Id. AO has erred in law and facts and circumstances of the case by making addition in complete disregard of the provisions of the law and by resorting to means against the principals of natural justice 4. The appellant craves leave to and permission of CIT ( A) to add to or alter any grounds of appeal at any time up to final decision of the appeal. 5. The appellant craves leave and sanction of Hon'ble CIT(A) to file additional evidence, if so required for proper prosecution of the case, based on facts and circumstances, which has not been or could not be adduced before lower authorities either because proper and sufficient opportunity was not provided or because if was not solicited its need was not appreciated. 6. The order passed by id. AO be set aside as null and void and/or such relief as your honor may deem fit, under the circumstances of the case, be granted.” 3.1 In ground no. 3,4,5,& 6 service of notice is challenged. In support of submissions, assessee filed the judgements which are cited as below:- S.No. Case Law Subject Relevant page of case law paper book 8 NaveenChandra (P & H HC) Affixture without independent witness 106 9. GTL Ltd (Mum Trib) Non mention of approval in notice u/s.148 115,116 10. Charnajiv Aggarwal (Asr Trib) Undated reasons 119,121 11. Mohd. Yousuf Wani (Asr Trib) Undated reasons 133 As per the ld. Counsel the affixtureservice is without identification by independent witness which is bad in law. The ld. Counsel had annexed the affixture order in APB page 6-7. In the order the independent witness is missing. The issue was not agitated before the ld. CIT(A). 3.2 The ld. Counsel further mentioned that the recorded reason is without any date and reasons were passed without any valid date. The entire reason is bad in law. Further, the assessee took the ground before us. 4. The ld. Sr. DR vehemently argued and relied on the order of the Revenue Authorities.Ld. Sr. DR has not able to take any contrary view against the assessee’s submission. 5. We heard the rival submissions and relied on the documents available in the record. The assessee agitated the issue which is filed before the ITAT first time. Though the counsel of the assessee claimed that the grounds were duly submitted before the ld. CIT(A). Issue was not adjudicated by the ld. CIT(A) in proper manner. The recorded reason is annexed in page no. 1 of the APB, which is without date. The affixture was made by the ld. AO is not as per Act, claimed by the assessee. We decided that the issue should be further adjudicated before the CIT(A) both in the fact and new legal ground which was agitated by the assessee before us. Both the factual & legal issues are kept open for adjudication of CIT(A). The assessee is directed to produce relevant documents in related to the appeal hearing. The assessee should get reasonable opportunity for her case. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 10.08.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order