SHRI PARGAT SINGH , BATHINDA V. INCOME TAX OFFICER,WARD 1 (4), GUWHATI

ITA 420/ASR/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7083 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-04-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 16-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J K GUPTA
• Keywords: Recovery proceedings; Business income; Assessment record; Right to appeal; Reassessment proceedings
• Section: 44AD; 142(1); 133(6); 147; 148; 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER I.T.A. NO. 420/ASR/2018 A SSESSMENT YEAR: 2012-13 PRAGAT SINGH, 6915, MAHALLA BHALERIAN, BATHINDA [PAN: CTWPS 5487C] VS. ITO, WARD 1(3), BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. J. K. GUPTA (ADV.) RESPONDENT BY: SH. CHARAN DASS (D.R.) DATE OF HEARING: 24.04.2019 DATE OF PRONOUNCEMENT: 22.07.2019 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL ARISING OUT OF THE ORDER BY THE C OMMISSIONER OF INCOME TAX (APPEALS), BATHINDA ('CIT(A)' FOR SHORT) DATED 16.5.2018, DISPOSING AN APPEAL AGAINST THE ASSESSMENT ORDER U/S. 144 READ WITH SEC TION 147 OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER) DATED 23.12.2016 FOR T HE ASSESSMENT YEAR (AY) 2012- 13 BY INCOME TAX OFFICER (ITO), WARD 1(4), GUWAHATI IN RESPECT OF ONE, PARGAT SINGH, WITH PERMANENT ACCOUNT NUMBER (PAN): CCAPS 7397N. 2. THE FACTS OF THE CASE, INTERESTING INDEED, ARE N ARRATED AS FOLLOWS. ONE, PARGAT SINGH WAS, ON THE BASIS OF THE AIR INFORMATION, FOU ND TO HAVE CASH DEPOSITS (FOR RS.35,51,700) IN HIS SAVINGS BANK ACCOUNT WITH INDI AN OVERSEAS BANK, KIKKAR BAZAR, BATHINDA (S/B A/C 035501000008659) DURING TH E PREVIOUS YEAR RELEVANT TO ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 2 AY 2012-13, I.E., FINANCIAL YEAR (FY) 2011-12. SEAR CH FOR THE ASSESSEE, I.E., ON THE REVENUES INFORMATION SYSTEM, YIELDED HIS PERMANENT ACCOUNT NUMBER (PAN) AS CCAPS 7397N AND, FURTHER, THAT HE HAD NOT FURNISH ED ANY RETURN OF INCOME FOR THE RELEVANT YEAR. THE NOTICE U/S. 133(6) WAS ACCOR DINGLY ISSUED TO THE BANK BY ITO, WARD-1(4), GUWAHATI, I.E., THE ASSESSING AUTHO RITY UNDER WHOSE JURISDICTION THE SAID PAN FELL, ON 01/4/2015, WHO CONFIRMED THE CASH DEPOSITS DURING THE RELEVANT YEAR IN THE SAID BANK ACCOUNT AT RS. 35.52 LACS. HE, ACCORDINGLY, AFTER RECORDING HIS REASONS TO BELIEVE ESCAPEMENT OF INCO ME QUA THE SAID DEPOSITS, I.E., IN HIS CAPACITY AS THE ASSESSING OFFICER (AO), ISSU ED NOTICE U/S. 148(1) ON 06.10.2015. THE SAME WAS HOWEVER UNRESPONDED. THIS WAS FOLLOWED BY NOTICE U/S. 142(1) (ON 03/3/2016) AS WELL AS NOTICES REQUIRING THE ASSESSEE TO APPEAR EITHER PERSONALLY OR THROUGH AN AUTHORIZED REPRESENTATIVE, AND STATE HIS CASE IN THE MATTER. THE SAME REMAINING UNCOMPLIED, THE AO, AFTER GIVING A FINAL OPPORTUNITY, FRAMED AN ASSESSMENT U/S. 144 R/W S. 147 OF THE ACT. THE C ASH DEPOSITS WERE CONSIDERED AS FORMING PART OF THE ASSESSEES TURNOVER, AND APPLYI NG A RATE OF 8% (OF RS.35,51,700), AS PRESCRIBED U/S. 44AD OF THE ACT, INCOME ASSESSED AT RS.2,84,136 AS BUSINESS INCOME. ANOTHER RS.17,102, BEING BANK I NTEREST, WAS ALSO ASSESSED (AS INCOME FROM OTHER SOURCES), VIDE ORDER DATED 23.12. 2016. THE SAID BANK ACCOUNT WAS, AS GIVEN TO UNDERSTAND (REFER PARA 3.3 OF THE IMPUGNED ORDER IO), ATTACHED TO ENFORCE THE DEMAND RAISED THUS. THE BANK ACCOUNT BE LONGING TO THE APPELLANT, HE APPEALED THERE-AGAINST. IN APPELLATE PROCEEDINGS IT WAS, STATING HIS PAN AS CTWPS 5487C, EXPLAINED THAT THOUGH THE BANK ACCOUNT BELONGED TO THE APPELLANT, THE PAN QUOTED (IN THE ASSESSMENT ORDER) AND, THEREFORE, THE PERSO N ASSESSED, WAS A DIFFERENT PERSON, WITH, ALBEIT, LIKE NAME. THE JOINT HOLDER O F THE BANK ACCOUNT WAS JINDER KAUR, THE APPELLANTS WIFE. THE ASSESSMENT, ACCORD INGLY, WAS IN RESPECT OF A DIFFERENT PERSON, AND WHICH COULD THUS NOT LEAD TO ENFORCING THE DEMAND RAISED ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 3 THEREBY AGAINST A PERSON WITH A DIFFERENT PAN AND, THUS, IDENTITY. THE LD. CIT(A); THE FILE HAVING BEEN SINCE TRANSFERRED VIDE ORDER U /S. 127 DATED 29/12/2016 FROM GUWAHATI TO BATHINDA (ITO, WARD 1(3)), APPRECIATED THE APPELLANTS SAID CONTENTION. THE ASSESSMENT HAD BEEN MADE ON A PERSO N DIFFERENT FROM THE APPELLANT, THOUGH NAMED PARGAT SINGH. THE INCOME, AS ASSESSED, WAS ACCORDINGLY DIRECTED TO BE DELETED (PARA 5.1). IT WAS, AT THE S AME TIME, CLEAR THAT THE INCOME SOUGHT TO BE ASSESSED BELONGED TO THE APPELLANT, IN WHOSE BANK ACCOUNT THE CASH DEPOSITS AS WELL AS THE BANK INTEREST APPEARED, AND WERE NOTICED. HE, ACCORDINGLY, GAVE DIRECTIONS U/S. 150 TO THE ASSESSING OFFICER ( I.E., ITO, WARD 1(3), BATHINDA), UNDER WHOSE JURISDICTION THE ASSESSEES (PRAGAT-1, WITH PAN: CTWPS 5487C) RESIDENCE ADDRESS FELL, TO PROCEED AGAINST THE ASSE SSEE BY ADOPTING THE DUE PROCESS OF LAW. THE SAME READS AS UNDER: (PG. 5) THE PRESENT ASSESSING OFFICER BY VIRTUE OF COMBINED READING OF SECTIONS 150 AND 153 OF THE INCOME TAX ACT IS DIRECTED TO ISSUE REASSESSMENT NO TICE TO SH. PARGAT SINGH S/O SH. BABU SINGH, PAN: CCAPS 7397N AND JOINT HOLDER SMT. JINDE R KAUR, AFTER RECORDING SATISFACTION BASED ON INFORMATION AVAILABLE IN THE ASSESSMENT RE CORD IN LIGHT OF FINDING IS GIVEN ABOVE IN THIS APPELLATE ORDER . AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL, RAISIN G THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEARNED CIT(A) SHOULD HAVE ALLOWED THE ASSESSEE TO WITHDRAW THE AP PEAL AS THE ASSESSMENT ORDER DOES NOT BELONG TO THE ASSESSEE AS IS CLEAR FROM THE PAN OF ANOTHER PARGAT SINGH. EVEN THE ASSESSEE WAS NOT THE AGGRIEVED PERSON FOR FILING APPEAL. 2. THAT IF IT IS HELD THAT THE ASSESSMENT ORDER BEL ONGS TO THE ASSESSEE, THEN DIRECTIONS U/S. 150 READ WITH SECTION 153 CANNOT BE GIVEN AGAINST T HE APPELLANT ITSELF BUT CAN BE GIVEN AGAINST SOME OTHER PERSON OTHER THAN THE ASSESSEE A S IS CLEAR FROM PARA 5.2 OF THE APPELLATE ORDER. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN GIVING THE DIRECTION U/S 150 READ WITH SEC TION 153 OF THE INCOME TAX ACT, 1961 AS THE CASE HAS BEEN RE-OPENED BY THE AO, WARD1(4), GAUHAT I WHO HAD NO TERRITORIAL OR PECUNIARY JURISDICTION OVER THE ASSESSEE. SO, THE ASSESSMENT ORDER AS WELL AS THE APPELLATE ORDER ARE WITHOUT THE AUTHORITY OF LAW. ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 4 4. THAT THE CASE OF THE ASSESSEE CANNOT BE RE-OPENE D BY THE AO, WARD 1(4), GAUHATI WHO HAS NO TERRITORIAL OR PECUNIARY JURISDICTION OVER T HE ASSESSEE. SO, THE RE-ASSESSMENT IS LIABLE TO BE QUASHED. 5. THAT THE NOTICE ISSUED U/S 148 OF THE ACT WAS NO T SERVED UPON THE ASSESSEE. SO, RE ASSESSMENT IS LIABLE TO BE QUASHED AS SERVICE OF NO TICE U/S 148 IS THE CONDITION PRECEDENT FOR INITIATING THE RE-ASSESSMENT PROCEEDINGS. 6. THAT ANY OTHER RELIEF MAY KINDLY BE GRANTED TO T HE ASSESSEE TO WHOM HE IS FOUND ENTITLED AT THE TIME OF HEARING OF APPEAL. 3. BEFORE ME, IT WAS CONTENDED FOR AND ON BEHALF OF THE APPELLANT BY HIS COUNSEL, SH. GUPTA, THAT THE AOS ACTION FAILS WHEN VIEWED IN THE CONTEXT OF SECTION 120 R/W S. 124. THE AO, I.E., ITO, WARD-1(4 ) GUWAHATI, HAD NO TERRITORIAL JURISDICTION OVER THE ASSESSEE, A RESIDENT OF BATHI NDA. THE ASSESSEE HAS NO BUSINESS INCOME AND, ACCORDINGLY, ITO, WARD-1(4) GUWAHATI, C OULD NOT ASSUME JURISDICTION OVER THE ASSESSEE EITHER ON THE BASIS OF THE PLACE OF RESIDENCE OR BUSINESS. RELIANCE WAS PLACED BY HIM ON THE DECISIONS IN LT. COL. V . PARAMJIT SINGH V. CIT [1996] 220 ITR 446 (P&H); K.K. LOOMBA V. CIT [1998] 241 ITR 152 (DEL); AND SHIRISHBHAI HARGOVANDAS SANJANWALA V. ASSTT. CIT [2017] 396 ITR 167 (GUJ), I.E., BESIDES BY THE TRIBUNAL IN LAJWANTI COTTON GINNING FACTORY V. ITO (IN ITA NO. 395/ASR/2014, DATED 30/10/2014 / COPY ENCLOSED). IT WAS, UPON THIS, OBSERVED BY THE BENCH THAT THIS IS PRECISELY WHAT THE FIRST APPELLATE AUTHORITY IN WHOSE ORDER THAT BY THE AS SESSING AUTHORITY MERGES, HAS STATED, I.E., IT IS NOT THE APPELLANT, BUT ANOTHER, WHO HAD BEEN ASSESSED PER THE ASSESSMENT ORDER UNDER REFERENCE. THE PAN OF THIS O THER PERSON (THE ASSESSEE OR PARGAT 2, HEREINAFTER) WAS UNDER THE JURISDICTION OF ITO, WARD 1(4), GUWAHATI (REFER PARA 5 OF THE IO). IT IS FOR THIS REASON THA T HE, AS THE FIRST APPELLATE AUTHORITY, HAD ISSUED DIRECTION U/S. 150 R/W S. 153(3)(II) OF THE ACT, QUOTING EXPLANATION 3 THERETO, I.E., QUA THE PRESENT ASSESSEE. ON THIS, SH. GUPTA WOULD SUB MIT THAT SECTION 153 STANDS SINCE SUBSTITUTED BY FINANCE ACT, 2016 W .E.F. 01.6.2016. THE IMPUGNED ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 5 ORDER BEING DATED 16.5.2018, IT IS THE SUBSTITUTED SECTION, I.E., THE SINCE AMENDED LAW, THAT WOULD APPLY. PER THE SAME, THE TIME LIMIT FOR FRAMING AN ASSESSMENT IN PURSUANCE OF A DIRECTION/S U/S. 150 IS, U/S. 153(6) , ON OR BEFORE THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH SUCH ORDE R IS RECEIVED OR PASSED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER, AS THE CASE MAY BE. THIS IS IN CONTRA- DISTINCTION TO THE INDEFINITE TIME LIMIT THAT WAS H ITHERTO AVAILABLE U/S. 153 FOR FRAMING AN ASSESSMENT IN PURSUANCE TO A DIRECTION/S U/S. 150. NO ASSESSMENT, HE WOULD SUBMIT, HAD AS YET BEEN THOUGH PASSED BY THE AO, WITH RATHER EVEN NO NOTICE U/S. 148 HAVING BEEN ISSUED OR SERVED ON HIS ASSESS EE, I.E., PARGAT-1, AS CHRISTENED BY THE LD. CIT(A). THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WOULD REL Y ON THE IMPUGNED ORDER, FURTHER ADDING THAT THE NON-FRAMING OF THE A SSESSMENT WITHIN THE TIME ALLOWED THEREFOR BY LAW IS A DIFFERENT ASPECT, A MA TTER SUBSEQUENT, WITH WHICH THIS COURT MAY NOT CONCERN ITSELF INASMUCH AS THE SAME D OES NOT ARISE OUT OF THE IMPUGNED ORDER. THE SAME DOES NOT DETRACT FROM THE MERITS OF THE ADJUDICATION BY THE LD. CIT(A), WHICH ALONE COULD BE THE SUBJECT MA TTER OF APPEAL. RATHER, THE VERY FACT THAT THE LD. COUNSEL FOR THE ASSESSEE ADVERTS TO THE TIME LIMIT WITHIN WHICH THE DIRECTIONS BY THE LD. CIT(A) PER THE IMPUGNED ORDER COULD IN LAW BE GIVEN EFFECT TO, IS A TACIT ADMISSION TO HIS BEING IN AGREEMENT WITH THE SAME, I.E., IN PRINCIPLE. 4. I HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE PRIMARY FACTS OF THE CASE ARE NOT IN DISPUTE. T HE BANK ACCOUNT UNDER REFERENCE BELONGS TO PARGAT SINGH S/O SH. BABU SING H (PAN: CTWPS 5487C)(PARGAT 1), THE APPELLANT, WHILE THE ASSESSME NT HAS BEEN MADE IN RESPECT OF PARGAT SINGH S/O SH. BANT SINGH (PAN: CCAPS 7397N)( PARGAT 2). THE LD. CIT(A), ON SO FINDING, HAS DELETED THE ADDITION IN CASE OF PRAGAT-2, WHILE DIRECTING THE AO (THE ASSESSMENT FILE HAVING BEEN SINCE TRANSFERRED, I.E., ON 21/01/2017 TO INCOME ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 6 TAX OFFICER WARD 1(3), BHATINDA, I.E., THE AO HAVIN G JURISDICTION OVER THE APPELLANT) TO INTIATE ASSESSMENT PROCEEDINGS AGAINS T PARGAT-1, THE APPELLANT. THE FIRST ISSUE THAT THEREFORE ARISES IS IF THE APP EAL IN RESPECT OF AN ASSESSMENT IN THE CASE OF ONE (PARGAT-2) COULD BE F ILED BY ANOTHER (PARGAT-1). THE IDENTITY OF ANY PERSON UNDER THE ACT IS NEITHER HIS NAME NOR ADDRESS, BUT PAN AND, THEREFORE, WITHOUT DOUBT, THE APPEAL BEFORE THE LD. CIT(A) HAS BEEN FILED BY A PERSON OTHER THAN IN WHOSE CASE THE ASSESSMENT HAS BEEN MADE. THE MOOT QUESTION IS WITH REGARD TO THE COMPETENCE OF THE APPELLANT, PARGAT-1, TO APPEAL UNDER SECTION 246A AGAINST AN ASSESSMENT ON THE ASSESSEE, PARGAT- 2, AS WHERE NOT, THE ENTIRE PROCEEDINGS BEFORE THE LD. CIT(A) WOULD FAIL, EVEN AS THE APPELLANT CONTENDS VIDE HIS GD.1, STATING TO BE AGGRIEVED BY BEING NOT ALLO WED TO WITHDRAW HIS APPEAL BY THE LD. CIT(A). IN MY CONSIDERED VIEW, THE APPEAL I N THE INSTANT CASE COULD BE VALIDLY FILED BY BOTH, I.E., PARGAT-1 AND PARGAT-2, INASMUCH AS BOTH ARE AGGRIEVED THEREBY, THOUGH THE PURVIEW OF TWO APPEALS WOULD BE DIFFERENT. THE WORDS USED IN S. 246A (OR IN S. 246) ARE ANY ASSESSEE AGGRIEVED . THE SAME HAVE BEEN EXPLAINED TO MEAN ANY PERSON WHO IS DISAPPOINTED OR TO WHOM L EGAL GRIEVANCE STANDS CAUSED BY WRONGFULLY DEPRIVING HIM OF SOMETHING ( ADI PHEROZSHAH GANDHI V. H.M. SEERAVAI , AIR 1971 SC 385). IN THE CONTEXT OF THE ACT, ANY PERSON ON WHOM THE BURDEN OF TAX WILL FALL WILL BE ENTITLED TO PREFER AN APPEAL, SO THAT THE TAX BURDEN MAY BE ENTIRELY REDUCED OR LESSENED ( CIT V. HINDUSTAN STEEL LTD . [1989] 179 ITR 213, 217 (CAL)). EVEN OTHERWISE, THE RIGHT TO APPEA L, BEING REMEDIAL IN NATURE, IS TO BE LIBERALLY CONSTRUED, AS IS SETTLED LAW, IMPLYING BEING READ IN A REASONA BLE, PRACTICAL, AND LIBERAL MANNER, TOWARD WHICH THE CAS E LAW IS LEGION (REFER, INTER ALIA, CIT V. ASHOKA ENGINEERING CO . [1992] 194 ITR 645, 649 (SC)). FURTHER, WHERE IN DOUBT, AS EXPLAINED IN GOPI LAL V. CIT [1967] 65 ITR 477, 481 (PUNJ), THE RIGHT OF APPEAL MUST BE ALLOWED RATHER THAN DENIED. ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 7 PARGAT-2 IS THE NATURAL APPELLANT AS THE INCOME, AD MITTEDLY BELONGING TO ANOTHER (PARGAT-1), HAS BEEN ASSESSED IN HIS HANDS. NO APPEAL BY HIM, AS PER THE INFORMATION/MATERIAL ON RECORD, HAS THOUGH BEEN FIL ED. PARGAT-1, THE APPELLANT, IS ALSO AGGRIEVED AS THE RECOVERY PROCEEDINGS, ON THE BASIS OF THE SAID ASSESSMENT ORDER, STAND INITIATED AGAINST HIM (REFER PARA 3.3 OF THE IMPUGNED ORDER). THAT IS, THE TAX ASSESSED IN THE HANDS OF PARGAT 2, IS BEING SOUGHT TO BE, ON ACCOUNT OF MISCONSTRUING IN VIEW OF LIKENESS OF THE NAME, AND NOT PROPER VERIFICATION BY THE AO, COLLECTED FROM HIM. HIS LOCUS STANDI IN THE MATTER ARISES AS HE IS DEFINITELY AGGRIEVED BY THE RECOVERY PROCEEDINGS, A CONSEQUENC E OF THE ASSESSMENT ORDER, WHICH SPECIFY HIS BANK ACCOUNT AND THE DEPOSITS THE REIN. HIS CHALLENGE THERETO, HOWEVER, WOULD BE LIMITED ONLY TO THE EXTENT OF THE MAINTAINABILITY OF THE SAID RECOVERY PROCEEDINGS NOTHING LESS, AND NOTHING MO RE. THIS IS AS NO INCOME QUA HIM HAS BEEN ASSESSED. AS EXPLAINED BY THE HIGHER C OURTS OF LAW, THE RIGHT (TO APPEAL) MUST BE DETERMINED ACCORDING TO THE EFFECT THE ORDER HAS ON THE AGGRIEVED TAX PAYER (SEE, JAIKISHAN GOPIKISHAN & SONS V. CIT [1972] 84 ITR 645, 647 (MP); KAITHAR MATCH WORKS V. CIT [1975] 99 ITR 251, 255 (CAL)). THOUGH, THEREFORE, THE LD. CIT(A) HAS RIGHTLY ADMITTED THE APPEAL BY THE A PPELLANT, PARGAT-1, IN RESPECT OF THE ASSESSMENT IN THE CASE OF ANOTHER (PARGAT-2), H E HAS, IN MY VIEW, EXCEEDED HIS JURISDICTION IN DIRECTING THE AO TO INITIATE (RE)AS SESSMENT PROCEEDINGS AGAINST THE APPELLANT, AN ISSUE SOUGHT TO BE RAISED BY THE APPE LLANT PER HIS GD. 2 BEFORE THE TRIBUNAL. SUCH A DIRECTION, WHICH MAY NOT BE WITHOU T MERIT, COULD BE ISSUED ONLY IN THE APPELLATE PROCEEDINGS PREFERRED BY A PERSON IN RESPECT OF WHOM THE ASSESSMENT HAS BEEN MADE. THIS IS AS THE ENTIRE ASSESSMENT IS, IN SUCH A CASE, AT LARGE, AND COULD, WHERE SO, BE VALIDLY IMPUGNED BY THE ASSESSE E, I.E., THE PERSON IN WHOSE CASE THE ASSESSMENT HAS BEEN MADE, BEING, AS AFORE- STATED, THE NATURAL APPELLANT, AS WHERE IN THE COURSE OF SUCH APPELLATE PROCEEDINGS T HE APPELLATE AUTHORITY FINDS THAT INCOME AS ASSESSED BELONGS TO ANOTHER. HE COULD VAL IDLY DIRECT THE AO ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 8 APPROPRIATELY U/S. 150. THIS COULD FURTHER BE WITH OR WITHOUT HEARING THE OTHER PERSON; S.153, AS SUBSTITUTED W.E.F. 01/6/2016, PRO VIDING FOR DIFFERENT TIME LIMITS QUA THE TWO SETS OF DIRECTIONS FOR THE PURPOSE, I.E., WITH OR WITHOUT HEARING THE PERSON IN RESPECT OF WHOM THE DIRECTION/S IS MADE. OF COURSE, WHERE THE DIRECTION/S IS PASSED WITHOUT HEARING THE CONCERNED PERSON, HE SHALL HAVE TO BE HEARD IN APPROPRIATE PROCEEDINGS, AND WHICH COULD BE PROVIDE D FOR IN THE SAID DIRECTION/S ITSELF. SECTION 246A, IT MAY BE NOTED, ALSO PROVIDE S FOR AN APPEAL IN RESPECT OF A DIRECTION U/S. 150 (S. 246A(1)(B)), AS INDEED DID S . 246, THE PROVISION PRIOR THERETO. THE COMPETENCE AND THE LOCUS STANDI OF THE PERSON OTHER THAN THE ASSESSEE TO APPEAL AGAINST AN ASSESSMENT ORDER (IN THE CASE OF THE ASSESSEE) IS THUS A RESTRICTED RIGHT, I.E., TO THE EXTENT HE IS AGGRIEVED THEREBY, THE QUALIFYING CONDITION OF SECTION 246A(1). THE LIMITED PRAYER, THUS, ADMISSIBLE IN TH E INSTANT CASE, I.E., IN THE APPELLATE PROCEEDINGS INITIATED BY PARGAT-1 BEFORE THE FIRST APPELLATE AUTHORITY, IS THE VALIDITY OF THE RECOVERY PROCEEDINGS ON HIM, I. E., IN PURSUANCE TO THE IMPUGNED ASSESSMENT ORDER. THERE IS NO SCOPE OF EITHER QUASH ING THE ASSESSMENT ORDER (AS RAISED PER THE GROUND/S OF APPEAL) OR FOR DELETING THE ADDITION MADE IN THE CASE OF THE ASSESSEE, PARGAT-2 (AS BY THE IMPUGNED ORDER), IN DECIDING THE APPEAL PREFERRED BY PARGAT-1, BEING NOT THE ASSESSEE. SUCH A FINDING , INCLUDING A DIRECTION AS TO THE PERSON IN WHOSE HANDS THE INCOME OUGHT TO BE ASSESS ED, AS AFORE-EXPLAINED, COULD BE ISSUED ONLY IN THE APPELLATE PROCEEDINGS INITIAT ED BY OR AT THE INSTANCE OF THE ASSESSEE. PUT SUCCINCTLY, A PERSON OTHER THAN THE N ATURAL APPELLANT, I.E., WHOSE INCOME STANDS ASSESSED, THOUGH NOT INCOMPETENT TO F ILE AN APPEAL IN RESPECT OF THE ASSESSMENT ON ANOTHER, HIS RIGHT TO APPEAL THERE-AG AINST IS LIMITED ONLY TO EXTENT HE IS AGGRIEVED BY THE IMPUGNED ASSESSMENT, BEING IN T HE PRESENT CASE THE RECOVERY PROCEEDINGS INITIATED AGAINST HIM. IT MAY BE ARGUED FOR AND ON BEHALF OF THE REVENUE T HAT THE ASSESSMENT IN THE INSTANT CASE IS, IN FACT, IN THE CASE OF THE APPELL ANT, PARGAT-1. IN FACT, THE APPELLANT ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 9 ALSO RAISES SUCH A PLEA PER HIS GD. 2. THE BASIS FO R SUCH A CONTENTION IS THAT THE ASSESSMENT IS IN RESPECT OF INCOME QUA THE DEPOSITS (DURING THE RELEVANT YEAR) IN THE APPELLANTS BANK ACCOUNT. THE QUESTION OF THE J URISDICTION (OF THE ASSESSING AUTHORITY) APART, THE ASSESSMENT OF INCOME AS MADE IS THEREFORE ONLY QUA THE PERSON TO WHOM THE SAID BANK ACCOUNT BELONGS; THE SATISFAC TION RECORDED U/S. 148(2) BEING ONLY IN RESPECT THEREOF. IT IS THIS THAT LED THE LD . CIT(A) TO STATE OF THE APPELLANT, PARGAT-1, AS THE CORRECT PERSON (VIDE PARA 3.3 OF H IS ORDER), AS WELL AS, IN CONSEQUENCE, ISSUE DIRECTION U/S. 150 IN HIS RESPEC T, AND AFTER HEARING HIM, BEING, IN FACT, THE APPELLANT. AS SUCH, EVEN AS THE ASSESS MENT IS STATED TO BE IN RESPECT OF PARGAT 2, IT IS IN FACT IN RESPECT OF PARGAT-1. THA T IS, IT IS ONLY THE PERSON TO WHOM THE RELEVANT BANK ACCOUNT BELONGS, WHO HAS IN FACT BEEN ASSESSED IN RESPECT OF THE INCOME QUA THE DEPOSIT/S THEREIN, AND THE ERROR THAT HAS CREP T IN IS IN RECORDING THE CORRECT PAN IN THE ASSESSMENT ORDER. AFTER ALL, THE JURISDICTION TO ASSESS STANDS ASSUMED ONLY IN THE CASE OF SUCH PERSON. THIS IS AL SO SUPPORTED BY THE FACT OF THE SUBSEQUENT TRANSFER OF THE CASE FROM GUWAHATI (ASSA M) TO BHATINDA (PUNJAB), THE PLACE WHERE THE APPELLANT RESIDES AND, FURTHER, IMM EDIATELY AFTER FRAMING THE ASSESSMENT. THE ARGUMENT, ATTRACTIVE AT FIRST SIGHT ; IN FACT, POSED BY THE BENCH ITSELF DURING HEARING, HOWEVER, MISSES A POINT. THE NOTICE U/S. 148(1), ON THE BASIS OF WHICH THE JURISDICTION TO ASSESS HAS BEEN ASSUME D, IS QUA PARGAT-2, I.E., THE PERSON WHOSE PAN, WHICH MARKS THE IDENTITY OF A PER SON UNDER THE ACT, AND TO WHOM THE SAID NOTICE IS ISSUED. THE ASSESSMENT, THUS, IS ONLY ON PARGAT-2 . EVEN IF REGARDED AS A DEFECT, THE SAME IS NOT CURABLE U/S. 292B. WHY, WHERE WAS THE NEED TO ISSUE DIRECTIONS IN THE CASE OF THE APPELLANT, P ARGAT 1, IF THE ASSESSMENT IS IN HIS CASE? FURTHER, IF THE ASSESSEE IS PARGAT 2, WHOSE P AN FALLS UNDER THE JURISDICTION OF ITO, GUWAHATI, WHAT VALUE THE TRANSFER OF THE CASE TO BATHINDA? FINALLY, THE CASE LAW CITED MAY ALSO BE DISCUSSED. THE SAME CONCERN THE JURISDICTION OF THE AO FRAMING AN ASSESSMENT INASMU CH AS ITO, WARD 1(4), ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 10 GUWAHATI, DID NOT HAVE THE TERRITORIAL JURISDICTION TO FRAME THE ASSESSMENT ON THE APPELLANT, PARGAT-1, A RESIDENT OF BATHINDA, PUNJAB . THE SAME WOULD BE NO ASSISTANCE TO THE ASSESSEE AS THE ASSESSMENT, AS CL ARIFIED, AND AS IS ADMITTEDLY THE CASE, STANDS MADE ON PARGAT-2, WHOSE PAN WAS UNDER THE JURISDICTION OF THE INCOME TAX OFFICER AT GUWAHATI. THE DECISION IN PARAMJIT SINGH (SUPRA), EVEN AS NOTED BY THE HON'BLE DELHI HIGH COURT IN K.K. LOOMBA (SUPRA), IS WITHOUT REFERENCE TO THE DECISION IN BALDEV SINGH V. CIT , AIR 1961 SC 736. THE SAME IS STATED WITH A VIEW TO CLARIFY MATTERS; THE SAID DEC ISION BEING BY THE HON'BLE JURISDICTIONAL HIGH COURT, EVEN AS THE DECISION IN PARAMJIT SINGH (SUPRA) IS ALSO NOT APPLICABLE ON FACTS, BEING QUA AN ASSESSEE WHO HAD SINCE HIS ASSESSMENT AND PRIOR TO THE ISSUE OF THE RE-ASSESSMENT NOTICE (IN HIS CA SE), SHIFTED HIS RESIDENCE. THE PRESENT CASE, ON THE OTHER HAND, IS OF TWO SEPARATE PERSONS, WITH THERE BEING IN FACT NO RE-ASSESSMENT IN THE CASE OF THE APPELLANT. THIS WOULD ALSO CAUSE TO DISTINGUISH THE DECISION IN SHIRISHBHAI HARGOVANDAS SANJANWALA (SUPRA). THE SAID DECISION IS QUA THE TERRITORIAL JURISDICTION OF THE ASSESSING OFFI CER OVER THE ASSESSEE, WHICH IS NOT IN DISPUTE IN THE PRESENT CASE, THE AO, ITO, WA RD I(4), GUWAHATI, HAVING JURISDICTION OVER THE ASSESSEE, PARGAT 2. THIS ISSU E, IN FACT, COULD ONLY BE RAISED IN APPEAL BY THE SAID ASSESSE; THE SCOPE OF THE INSTAN T APPEAL BEING LIMITED TO THE EXTENT THE APPELLANT IS AGGRIEVED BY THE IMPUGNED A SSESSMENT. IN CONCLUSION 5. THE JURISDICTION OF THE LD. CIT(A) IN THE INSTAN T PROCEEDINGS IS LIMITED TO THE EXTENT OF DECIDING ON THE MAINTAINABILITY (OR OTHER WISE) IN LAW OF THE RECOVERY PROCEEDINGS INITIATED ON THE APPELLANT IN PURSUANCE TO THE ASSESSMENT FRAMED ON ANOTHER (PARGAT 2). THE PURVIEW OF THE APPELLATE PR OCEEDINGS PREFERRED BY THE APPELLANT, I.E., OTHER THAN THE ASSESSEE, IS LIMITE D TO THE EXTENT HE IS AGGRIEVED BY THE ORDER APPEALED AGAINST. THE SCOPE OF ADJUDICATI ON OF THE SAID APPEAL WOULD ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 11 ACCORDINGLY BE RESTRICTED TO DECIDING ON THE MERITS OF THE APPELLANTS CASE QUA HIS GRIEVANCE, AND CANNOT TRAVEL BEYOND THE SAME. THE A PPELLANT MAY WELL HAVE PREFERRED TO MOVE THE HONBLE HIGH COURT UNDER ITS WRIT JURISDICTION, OR THE AO FOR RECTIFICATION U/S. 154 WHICH REPRESENTS A MOR E BASIC OR FUNDAMENTAL RIGHT (THAN THE RIGHT TO APPEAL), BEING IN THE NATURE OF AN INHERENT RIGHT, WITH THE ASSESSMENT IN THE INSTANT CASE BEING ON A DIFFERENT PERSON, SO THAT THE TAX RECOVERY THEREFROM IS MISTAKEN. IT IS, ACCORDINGLY, HELD AS UNDER: A). THE RECOVERY PROCEEDINGS IN THE CASE OF THE APP ELLANT ARE WITHOUT THE AUTHORITY OF LAW, SO THAT THE SAME ARE NOT MAINTAINABLE. B). THE DIRECTION/S U/S.150 BY THE LD. CIT(A) TO TH E AO, I.E. ITO, WARD-1(3), BHATINDA, TO INITIATE REASSESSMENT PROCEEDINGS IN T HE CASE OF THE APPELLANT (AND HIS WIFE, JINDER KAUR) IS AGAIN NOT MAINTAINABLE. THE ACTION OF THE REVENUE IN ATTACHING THE ASSESSEE S BANK ACCOUNT OR ENFORCING THE DEMAND, I.E., IN PURSUANCE OF THE ASSESSMENT OR DER UNDER REFERENCE, FAILS IN CONSEQUENCE. THIS IS BEING SPECIFICALLY STATED SO A S TO MAKE THE MATTERS ABUNDANTLY CLEAR, EVEN AS THIS SHOULD HAVE FOLLOWED THE IMPUGN ED ORDER, AS NO VALID DEMAND NOTICE SURVIVES THE SAME. THE APPELLANT SHALL, ACCO RDINGLY, BE REFUNDED THE ENTIRE AMOUNT APPROPRIATED AGAINST THE DEMAND RAISED PER T HE IMPUGNED ASSESSMENT, ALONG WITH INTEREST AS PER LAW. IT MAY THOUGH BE CLARIFIED THAT SUBJECT TO THE AVAILABILITY OF TIME, THE REVENUE IS AT LIBERTY TO TAKE ACTION U/S. 148, I.E. , WITHOUT RECOURSE TO SS. 150 AND 153 PER THE IMPUGNED ORDER. AS CLARIFIED IN ASST. CIT V. RAJESH JHAVERI STOCK BROKERS (P.) LTD . [2007] 291 ITR 500 (SC), ONCE THE INGREDIENTS OF S.147 ARE SATISFIED, ACTION U/S. 148 COULD FOLLOW. WHY, AN OR DER BY AN APPELLATE AUTHORITY IS ITSELF A GROUND SUFFICIENT TO INITIATE REASSESSMENT PROCEEDINGS, AS HELD IN KUMAR ENGINEERS V. CIT [1997] 223 ITR 18 (P&H). THE SATISFACTION U/S. 148 (2) THOUGH WOULD HAVE TO BE RECORDED WITH REFERENCE TO THE OBT AINING FACTS IN THE CASE OF THE ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 12 APPELLANT WHO MAY HAVE FILED HIS RETURN FOR THE R ELEVANT YEAR, OR OTHERWISE DISCLOSED THE SAID BANK ACCOUNT TO THE REVENUE. AGA IN, HE BEING, AS STATED (REFER PARA 3 OF THIS ORDER), NOT IN BUSINESS, THERE IS NO SCOPE FOR REGARDING THE SAID BANK DEPOSITS AS PART OF THE TURNOVER OF HIS BUSINESS. I AM CONSCIOUS THAT THE DECISION PER THIS ORDER DOE S NOT CORRESPOND, OR AT LEAST ENTIRELY, TO THE GROUNDS RAISED IN APPEAL OR THE ARGUMENTS ADVANCED BY THE PARTIES. INDEED, IN SOME RESPECTS, IT DECIDES CONTR ARY TO THE GROUNDS RAISED. THE TRIBUNAL, HOWEVER, IS TO DECIDE THE ISSUE/S ARISING IN THE PROCEEDINGS BEFORE IT, AND IS NOT BOUND BY THE GROUNDS OF APPEAL RAISED BEFORE IT. IT IS THE CORRECT LEGAL POSITION THAT IS RELEVANT, AND NOT THE VIEW THAT TH E PARTIES MAY TAKE OF THEIR RIGHTS IN THE MATTER ( CIT V. C. PARAKH & CO. (INDIA) LTD . [1956] 29 ITR 661 (SC); KEDARNATH JUTE MFG. CO. LTD. V. CIT [1971] 82 ITR 363 (SC)). THE DECISION IN THE INSTANT CASE IS RENDERED AFTER HEARING THE PARTIES, WITH IN FACT THE PRIMARY FACTS, ON WHICH THIS ORDER IS BASED, BEING NOT IN DISPUTE AND , RATHER, ADMITTED. THE POSITION OF LAW IS, AS ITS READING WOULD SHOW, AGAIN, WELL SETTLED. BEFORE PARTING, IT MAY BE CLARIFIED THAT THIS DECIS ION, IN ANSWERING THE ISSUE/S ARISING, IS GUIDED PRIMARILY BY THE DECISIONS BY TH E APEX COURT, AS IN KAPURCHAND SHRIMAL V. CIT [1981] 131 ITR 451 (SC) AND CIT V. WALCHAND & CO. PVT. LTD . [1967] 65 ITR 381 (SC). IN THE FORMER, IT STANDS CL ARIFIED THAT AN APPELLATE AUTHORITY HAS THE JURISDICTION AS WELL AS THE DUTY TO CORRECT ALL ERRORS IN THE PROCEEDINGS UNDER APPEAL AND TO ISSUE, IF NECESSARY , APPROPRIATE DIRECTIONS TO THE AUTHORITY AGAINST WHOSE DECISION THE APPEAL IS PREF ERRED TO DISPOSE THE WHOLE OR ANY PART OF THE MATTER AFRESH, UNLESS (OF COURSE) F ORBIDDEN BY LAW TO DO SO BY THE STATUTE. PER THE LATTER DECISION, IT STANDS HELD TH AT THE TRIBUNAL IS TO DEAL WITH AND DETERMINE ALL THE QUESTIONS WHICH ARISE OUT OF THE SUBJECT MATTER OF THE APPEAL, IN LIGHT OF THE EVIDENCE AND CONSISTENTLY WITH THE JUS TICE OF THE CASE (PG. 384). TAX ITA NO. 420/ASR/2018 (AY 2012-13) PARGAT SINGH V. ITO 13 PROCEEDINGS, IT MAY BE NOTED, ARE NOT ADVERSARIAL I N NATURE ( CIT V. INDIAN EXPRESS (MADURAI) (P.) LTD . [1983] 140 ITR 705, 722 (MAD)). BEFORE CLOSING, IT MAY BE CLARIFIED THAT THE CAUSE TITLE OF THIS ORDER STATES OF RESPONDENT AS: ITO, WARD 1(3), BATHINDA, AND NOT I TO, WARD 1(4), GUWAHATI (AS IN FORM 36), AS THE ASSESSMENT RECORD STANDS SINCE TRANSFERRED TO THE FORMER. I DECIDE ACCORDINGLY. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN CO URT ON JULY 22, 2019 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATE: 22.07.2019 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: PRAGAT SINGH, 6915, MAHALLA BHALERIAN, BATHINDA (2) THE RESPONDENT: ITO, WARD 1(3), BATHINDA. (3) THE CIT(APPEALS), BATHINDA (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T TRUE COPY BY ORDER