Shri Kulvinder Singh, New Delhi V. ITO, New Delhi

ITA 4164/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7018 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 20-06-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 28-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: FARHAT KHAN
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-4164/DEL/2014 (ASSESSMENT YEAR-2005-06) KULVINDER SINGH, C-123 & 127, EKTA ENCLAVE, NEAR PEERA GARHI CHOWK, NEW DELHI-110034. PAN-AWSPS9338R (APPELLANT) VS ITO, WARD-25(4), NEW DELHI (RESPONDENT) A SSESSEE BY SH. RAJA KUMAR, ADV R EVENUE BY SH.FARHAT KHAN, SR.DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 12.06.2014 OF CIT(A) -XXIV, NEW DELHI PERTAINING TO 2005-06 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS :- 1. WHILE ADJUDICATING THE APPEAL OF T HE ASSESSEE, THE LEARNED CIT APPEALS - XXVI, NEW DELHI HAS ERRED IN UPHOLDIN G THE DECISION OF THE AO OF ISSUE OF NOTICE U/S 148 AS LEGAL AND IN C ONFIRMATION WITH THE VARIOUS PROVISIONS OF SECTION 144, 147 AND 1 48 OF THE INCOME TAX ACT, 1961. 2. THE LEARNED CIT APPEALS-XXIV HAS ERRED BY NOT CONSIDERING THE FACT AND NOT ADJUDICATING THE GROUND OF APPEAL THAT THE NOTICE U/S 148 DATED 05.03.2012 HAS NOT BEEN RECEIVED BY THE ASSES SEE AND THUS HAS NOT BEEN PROPERLY SERVED ON THE ASSESSEE. 3. THE LEARNED CIT APPEALS-XXIV ERRED IN CONSIDE RING THE FACT THAT WHILE PASSING ORDER U/S 144 NEITHER NOTICE U/S 142( 1) NOR SHOW CAUSE NOTICE U/S 144 HAS BEEN SERVED ON THE ASSESSEE. 4. THE LEARNED CIT APPEALS - XXIV ERRED IN CONSID ERING THE FACT THAT THE SUM ADVANCE TO SHRI JAIDEEP SINGH WAS ADVANCED DURING F.Y. 2003-2004 RELEVANT TO A.Y. 2004-2005 AND NOT IN F.Y . 2004-2005 RELEVANT TO A.Y. 2005-2006 BY THE ASSESSEE, THUS TH ERE WAS NO GAP OF FIVE MONTHS BETWEEN SALE OF PLOT AND TENDERING OF T HE SUM OF RS.2300000.00 TO SHRI JAIDEEP SINGH. DATE OF HEARING 20.06.2016 DATE OF PRONOUNCEMENT 12.07.2016 I.T.A . NO.-4164/DEL/2014 PAGE 2 OF 3 5. THE LEARNED CIT APPEALS-XXIV ERRED IN CONSIDERIN G THE FACT THAT THE SUM WAS ADVANCED IN A.Y. 2004-05 AND SUIT AGAINST DISHONOR OF CHEQUE WAS FILED IN A.Y. 2005-06. 6. THE ASSESSEE HAS CRAVED ITS INDULGENCE TO ADD, A LTER, AMEND, DELETE OR TO MAKE ANY ADDITIONAL GROUNDS OF APPEAL AT THE TIME OF HEARING OF APPEAL. 2. THE LD.AR INVITING ATTENTION TO THE IMPUGNED ORD ER SUBMITTED THAT THE CIT(A) HAVING REPRODUCED THE GROUNDS RAISED BY THE ASSESSEE IN PARA 2 NUMBERING FROM (I) TO (VI) AT PAGES 1 & 2 PROCEEDED TO DECIDE THE ISSUE ONLY ON MERITS AS WOULD BE EVIDENT FROM PARA 4 & 5 OF THE I MPUGNED ORDER. INVITING ATTENTION THE GROUND NO.4 & 5 RAISED BEFORE THE CI T(A) IT WAS SUBMITTED THAT THE ASSESSMENT SHOULD HAVE BEEN QUASHED AS THE ASSE SSEE DID NOT RECEIVE ANY NOTICE U/S 148 NOR DID THE ASSESSEE RECEIVE ANY NOT ICE FOR THE DATE OF HEARING. THE RECORD SHOWS THAT THE ASSESSMENT ORDER WAS PASS ED BY THE AO U/S 144 OF THE INCOME TAX ACT, 1961. CONSIDERING THE ASSESSEE S SUBMISSION THAT THE JURISDICTIONAL ISSUE AGITATED BY THE ASSESSEE HAS N OT BEEN DECIDED SUBMITTED THAT INSTEAD OF QUASHING THE ASSESSMENT, THE ISSUE MAY BE RESTORED WHICH STAND WAS ACCEPTED BY THE LD.AR. 3. HAVING HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD, I FIND THAT THE IMPUGNED ORDER IN THE FACTS AS THEY STAND DESERVES TO BE SET ASIDE AS THE LD. CIT(A) SHOULD FIRST DECIDED TH E JURISDICTIONAL ISSUE RAISED BEFORE HIM. BOTH THE LD.AR AND THE LD. SR. DR ALSO AGREE THAT IN THE CIRCUMSTANCES THE ISSUE MAY BE RESTORED TO THE FILE TO THE CIT(A). IN VIEW OF THE ABOVE, THE IMPUGNED ORDER IS SET ASIDE WITH THE DIR ECTION TO FIRST DECIDE THE JURISDICTIONAL ISSUE AND THEREAFTER IF NEED BE PROC EED TO DECIDE THE ISSUE ON MERIT. I.T.A . NO.-4164/DEL/2014 PAGE 3 OF 3 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 12 TH OF JULY, 2016. SD/- (DIVA SINGH) JU DICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTA NT REGISTRAR ITAT NEW DELHI