Ms Kim Sareen, New Delhi V. ACIT, New Delhi

ITA 4197/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7318 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 29-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL
• Assessee Lawyers: MANU K GIRI
• Keywords: Opportunity of being heard; Set aside
• Section: 153C; 132; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI D BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NOS. 4196 & 4197/DEL/2016 [ASSESSMENT YEARS: 2009-10 & 2010-11] MS. KIM SAREEN, VS. ACIT, CENTRAL CIRCLE-13, 1, CSC DDA MARKET, NEW DELHI ANAND NIKETAN MARKET, ANAND NIKETAN, NEW DELHI 110 021 (PAN: AODPS5128J) [APPELLANT] [RESPONDENT] ASSESSEE BY : SH. MANU K. GIRI, ADV. REVENUE BY : SH. RAJAT KUMAR KUREEL, SR. DR. ORDER PER H.S. SIDHU, JM THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX [APPEA LS]-29, NEW DELHI BOTH DATED 25.05.2016 PERTAINING TO ASSESSMEN T YEARS 2009- 10 & 2010-11. SINCE THE ISSUES INVOLVED IN THESE AP PEALS ARE COMMON AND IDENTICAL, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE, WE ARE DEALING WITH ONLY ITA NO. 4196/ DEL/2016 (AY 2009-10) AND THE RESULT THEREOF WILL APPLY TO OTHER ITA NO. 4197/DEL/2016 (AY 2010-11) MUTATIS MUTANDIS. 2. THE GROUNDS RAISED IN ITA NO. 4196/DEL/2016 (AY 2009-10) READ AS UNDER:- 1) THE ASSESSMENT ORDER PASSED U/S. 153C OF THE INCOME TAX ACT, 1961 AND THE SUBSEQUENT ORDER OF 2 CIT(A) ARE BOTH WITHOUT JURISDICTION AND OPPOSED TO THE MANDATE OF SECTION 153C OF THE ACT. 2) THE ASSESSMENT NOT BEING FRAMED BASED ON ANY DOCUMENT FOUND FROM THE SEARCHED PERSON IS WITHOUT JURISDICTION AND HENCE ALL PROCEEDINGS INITIATED U/S. 153C OF THE ACT ARE VOID AB INITIO. 3) THE ASSESSING OFFICER OF THE SEARCHED PERSON NOT HAVING RECORDED SATISFACTION, THE ASSESSMENT FRAMED U/S. 153C OF THE ACT IS WITHOUT JURISDICTIO N. 4) THE FINDING OF THE CIT(A) THAT THE NAME OF THE ASSESSEE APPEARS IN THE APPRAISAL REPORT OF M/S STOCK GURU BEING THE PERSON SEARCHED U/S. 132 OF THE ACT, IS NOT SUFFICIENT TO INVOKE SECTION 153C O F THE ACT. 5) THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS. 2,00,000/- SUCH A CONCLUSION IS OPPOSED TO EVIDENCE ON RECORD. 6) THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS. 70,000/- SUCH A CONCLUSION IS OPPOSED TO EVIDENCE ON RECORD. 7) THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDI TION OF RS. 4,36,704/- SUCH A CONCLUSION IS OPPOSED TO EVIDENCE ON RECORD. 8) THAT THE ABOVE GROUNDS OF APPEAL ARE INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY OF THE GROUNDS OF APPEAL AT THE TIME O F HEARING. 3 3. THE GROUNDS RAISED IN ITA NO. 4197/DEL/2016 (AY 2010-11) READ AS UNDER:- 1) THE ASSESSMENT ORDER PASSED U/S. 153C OF THE INCOME TAX ACT, 1961 AND THE SUBSEQUENT ORDER OF CIT(A) ARE BOTH WITHOUT JURISDICTION AND OPPOSED TO THE MANDATE OF SECTION 153C OF THE ACT. 2) THE ASSESSMENT NOT BEING FRAMED BASED ON ANY DOCUMENT FOUND FROM THE SEARCHED PERSON IS WITHOUT JURISDICTION AND HENCE ALL PROCEEDINGS INITIATED U/S. 153C OF THE ACT ARE VOID AB INITIO. 3) THE ASSESSING OFFICER OF THE SEARCHED PERSON NOT HAVING RECORDED SATISFACTION, THE ASSESSMENT FRAMED U/S. 153C OF THE ACT IS WITHOUT JURISDICTIO N. 4) THE FINDING OF THE CIT(A) THAT THE NAME OF THE ASSESSEE APPEARS IN THE APPRAISAL REPORT OF M/S STOCK GURU BEING THE PERSON SEARCHED U/S. 132 OF THE ACT, IS NOT SUFFICIENT TO INVOKE SECTION 153C O F THE ACT. 5) THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS. 2,14,753/- SUCH A CONCLUSION IS OPPOSED TO EVIDENCE ON RECORD. 6) THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS. 2,04,000/- SUCH A CONCLUSION IS OPPOSED TO EVIDENCE ON RECORD. 7) THAT THE ABOVE GROUNDS OF APPEAL ARE INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING . 4 4. AT THE TIME HEARING, LD. COUNSEL FOR THE ASSESS EE STATED THAT AO HAS COMPLETED THE ASSESSMENT U/S. 144 OF THE INCOME TAX ACT, 1961 READ WITH SECTION 153C OF THE I.T. ACT., 1961 ON 15.03.2013 WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASS ESSEE AND MADE THE VARIOUS ADDITIONS WHICH ARE IN DISPUTE. BUT IN THE APPEAL FILED BY THE ASSESSEE THE LD. CIT(A) HAS PARTLY ALLOWED T HE APPEAL OF THE ASSESSEE BY GIVING SOME RELIEF. LD. COUNSEL FOR TH E ASSESSEE STATED THAT THE ASSESSEE IS HAVING ALL THE NECESSARY EVIDE NCES ON THE ADDITIONS SUSTAINED BY THE LD. CIT(A) WHICH THE ASS ESSEE CAN NOW PROVE IF THIS BENCH GIVE AN OPPORTUNITY TO THE ASSE ESSEE FOR SUBSTANTIATING THE SAME BEFORE THE AO BY SETTING AS IDE THE ISSUES IN DISPUTE INVOLVED IN THE PRESENT APPEAL. HE ALSO DRA W OUR ATTENTION TOWARDS THE FINDINGS OF THE LD. CIT(A) AND REQUESTE D THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE ASSESSING OFFICE R TO RE EXAMINE THE EVIDENCES FILED BY THE ASSESSEE AND DECIDE THE SAME AFRESH AS PER LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS P ASSED BY THE REVENUE AUTHORITIES AND DID NOT STRONGLY OPPOSED TH E REQUEST OF THE ASSESSEES COUNSEL. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF THE REVENUE AUTHORITIES, ESPECIALLY THE IMPUGNED ORDER IN WHICH THE LD. CIT(A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE A SSESSEE BY GIVING SOME RELIEF. KEEPING IN VIEW OF THE FACTS OF THE P RESENT CASE AND THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE A SSESSEE ALONGWITH THE ORDERS PASSED BY THE REVENUE AUTHORIT IES ON THE ISSUES IN DISPUTE WHICH ARE INVOLVED IN THE PRESENT APPEAL AS REPRODUCED ABOVE IN THE GROUNDS OF APPEAL, WE ARE OF THE VIEW THAT THE ISSUES IN DISPUTE REQUIRE RE-EXAMINATION AT T HE LEVEL OF THE 5 ASSESSING OFFICER. THEREFORE, IN THE INTEREST OF JU STICE, WE ARE SETTING ASIDE THE ISSUES INVOLVED IN THE APPEAL AS REPRODUCED ABOVE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIREC TIONS TO EXAMINE AND DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVI NG ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO SUBST ANTIATE THE CLAIM. IT IS MADE CLEAR THAT THE ASSESSEE WILL COOP ERATE WITH THE ASSESSING OFFICER IN COMPLETING THE ASSESSMENT PROC EEDINGS AND WILL NOT TAKE ANY UNNECESSARY ADJOURNMENT DURING THE PRO CEEDINGS. ACCORDINGLY, THIS APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 7. FOLLOWING THE CONSISTENT VIEW AS TAKEN IN ITA NO . 4196/DEL/2016 (AY 2009-10), THE ITA NO. 4197/DEL/20 16 (AY 2010-11) ALSO ALLOWED FOR STATISTICAL PURPOSE WITH THE AFORESAID DIRECTIONS AS GIVEN IN ITA NO. 4196/DEL/2016 (AY 20 09-10). 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESS EE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 03.02.2020. SD/- SD/- [PRASHANT MAHARISHI ] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:03-02-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI