Shri Rakesh Kumar, Delhi V. ITO, New Delhi

ITA 4540/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6880 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 02-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 09-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Assessee Lawyers: PANKAJ MOHAN MITTAL
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. -4540/DEL/2015 (ASSESSMENT YEAR-2007-08) RAKESH KUMAR, C-1/5, DILSHAD COLONY, DELHI-110095. PAN-AGUPK0128P (APPELLANT) VS IT O , WARD-56(1), VIKAS BHAWAN, D BLOCK, NEW DELHI ( RESPONDENT) ASSESSEE BY SH. PANKAJ MOHAN MITTAL, CA REVENUE BY MS. ANIMA BARNWAL, SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 13.05.2015 OF CIT(A)-19, NEW DELHI PERT AINING TO 2007-08 ASSESSMENT YEAR ON VARIOUS GROUNDS RAISED BY THE ASSESSEE IN THE PRESE NT APPEAL. 2. ALTHOUGH VARIOUS GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN THE PRESENT APPEAL. LD. AR INVITING ATTENTION TO GROUND NO.1 & 2 SUBMI TTED THAT THE ORDER PASSED BY THE AO U/S 144 IS BAD IN LAW ON ACCOUNT OF WHICH THE ASSESSMEN T IS VOID AB-INITIO. IN SUPPORT OF THE SAID ARGUMENTS, THE FOLLOWING TWO GROUNDS RAISED IN THE PRESENT APPEAL ARE EXTRACTED HEREUNDER:- 1. BECAUSE, THE APPELLANT DENIES HIS LIABILITY TO BE A SSESSED IN TERMS OF NOTICE DATED 21.07.2008 ISSUED TO HIM UNDER SECTION 143(2) OF THE ACT. 2. BECAUSE, THERE IS NO VALID SERVICE OF THE NOTICE NO T BEING IN CONFORMITY WITH LAW IN THIS REGARD, CONSEQUENTLY TH E ASSESSMENT ORDER DATED 15.12.2009 (PASSED IN PURSUANCE THEREOF) IS V OID AB-INITIO. 2.1. INVITING ATTENTION TO THE IMPUGNED ORDER IT WA S HIS SUBMISSION THAT THE GROUND NO.3 BEFORE THE CIT(A) SPECIFICALLY ADDRESSED THIS PRAYE R. THE CIT(A) IN THE ORDER UNDER DATE OF HEARING 0 2 .0 8 .2016 DATE OF PRONOUNCEMENT 20 .09.2016 I.T.A .NO. -4540/DEL/2015 PAGE 2 OF 3 CHALLENGE IT WAS SUBMITTED THOUGH HAS SET OUT THE F ACTS HOWEVER WHILE ADJUDICATING DISMISSED THE SAME IN PARA 6 HOLDING THAT THE GROUN D IS GENERAL IN NATURE REQUIRING NO ADJUDICATION. ACCORDINGLY, IT WAS HIS PRAYER THAT T HE PROCEEDINGS BE QUASHED ON THE GROUNDS OF LACK OF JURISDICTION. THE LD.SR.DR REQUESTED TH AT THE MATTER MAY BE RESTORED. THE RECORD SHOWS THAT THE ASSESSEE AGITATED BEFORE THE CIT(A) LACK OF NOTICE. THE SPECIFIC GROUND IS EXTRACTED HEREUNDER:- (III) ON THE FACTS AND CIRCUMSTANCES OF THE CASE L EARNED A.O HAS ERRED BOTH IN EYE OF LAW AND ON FACTS IN ISSUING THE VARIOUS NOTI CES UNDER THE INCOME TAX ACT ON WRONG ADDRESS AND THUS FRAMING AN ASSESSMENT U/S 144. 2.2. A PERUSAL OF THE FINDING ARRIVED AT IN PARA 6 PAGE 4 SHOWS THAT IT WAS DISMISSED HOLDING AS UNDER:- 6. GROUND NOS.1,2,3,7 & 8 ARE GENERAL IN NATURE AN D REQUIRE NO ADJUDICATION. 3. ACCORDINGLY AFTER CONSIDERING THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, I AM OF THE VIEW THAT THE IMPUGNED ORDER CANNOT BE UPHEL D. THE JURISDICTIONAL ISSUES AGITATED BY AN ASSESSEE CANNOT BE DISMISSED AS A GENERAL GROUND REQUIRING NO ADJUDICATION. IT IS THE FOUNDATIONAL ISSUE WHICH FIRST NEEDS TO BE ADDRESSE D BY A SPEAKING ORDER. IN VIEW THEREOF THE ISSUE IS SET ASIDE BACK TO THE FILE OF THE CIT( A) WITH THE DIRECTION TO SPECIFICALLY ADDRESS THE JURISDICTIONAL ISSUE ON FACTS FIRST BY WAY OF A SPEAKING ORDER IN ACCORDANCE WITH LAW AND THEN PROCEED TO ADDRESS THE ISSUE ON MERITS IF NEED BE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER 2016. SD/- (DIVA SING H) JUDICIAL MEMBER *AMIT KUMAR* I.T.A .NO. -4540/DEL/2015 PAGE 3 OF 3 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI