Jagdish Tyagi, Ghaziabad V. ITO, Ward- 1(3), Ghaziabad

ITA 4568/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1659 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 18-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: V K TULSIAN
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-4568/DEL/2018 (ASSESSMENT YEAR-2009-10) JAGDISH TYAGI HOUSE NO. B-189, VILLAGE-DUNDHAHERA, NEAR ABES COLLEGE, NH-24, GHAZIABAD, UTTAR PRADESH. PAN NO. ANWPT5337L (APPELLANT) VS ITO WARD 1(3), GHAZIABAD. (RESPONDENT) APPELLANT BY SHRI V.K. TULSIAN, CA RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE IMPUGNED ORDER DATED 25.07.17 OF THE LD. CIT(A), GH AZIABAD RELEVANT TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS : 1. WHETHER THE CIT(A) WAS JUSTIFIED BY UPHOLDING THE ASSESSMENT ORDER PASSED U/S 147/144 WHICH IS CONTRA RY TO LAW, VOID AB-INITIO BECAUSE IT WAS BEYOND THE JURIS DICTION. 2. WHETHER THE CIT(A) WAS JUSTIFIED BY UPHOLDING THE A O EXERCISE OF ASSUMPTION OF JURISDICTION U/S 147 WHICH ALL ARE BASED UPON A PIECE OF PARTIAL INFORMATION AND THEREAFTER STRAI GHT FORWARD ISSUE OF NOTICE U/S 148. 3. WHETHER THE CIT(A) WAS JUSTIFIED BY UPHOLDING THE A DDITIONS MADE OF RS. 27,12,000/-, TOWARDS COLLEGE FEE PAID O N BEHALF OF ANKUSH TYAGI SON OF APPELLANT TO MEDICAL COLLEGE, I N MECHANICAL/ARBITRARY MANNER. DATE OF HEARING 22/11/2018 DATE OF PRONOUNCEMENT 22/11/2018 ITA NOS. 4568/D/2018 A.Y. 2009-10 JAGDISH TYAGI 2 4. WHETHER THE CIT(A) WAS JUSTIFIED BY UPHOLDING THE O RDER WHICH IS BASED ON ACTION ON THIRD PARTY EVEN WITHOUT EXAM INING THE NATURE OF EVIDENCE AND ITS VERIFICATION IN TERMS OF SETTLED LAW. 5. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION WIT HOUT APPRECIATING TO THAT MERITS THAT THE APPELLANT HAD DULY DISCHARGED HIS PRIMARY ONUS AS CALLED. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR VARY FROM THE ABOVE FACTS/STATEMENTS AT OR BEFORE THE TIME OF THE HEARING. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, THERE IS NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. AR FOR THE ASSESSEE STATED THAT ASSESSING OFFICER HAS NOT GIVEN SUFFICIENT OPPORTUN ITY TO SUBSTANTIATE THE CLAIM OF THE ASSESSEE AND PASSED EX PARTE ORDER DATED 04.03.2016 U/S 147/144 OF THE INCOME TAX ACT, 1961 AGAINST THE ASSESSEE. HE MAINLY ARGUED THAT ASSESSEE HAS NOT R ECEIVED ANY SHOW-CAUSE NOTICE U/S 144/148/142(1) OF THE INCOME TAX ACT, 1961 FOR THE AY 2009-10 IN DISPUTE. THE REVENUE AUTHORI TY HAS RAISED THE DEMAND IN DISPUTE WITHOUT SERVING THE NOTICE UPON T HE ASSESSEE AND HE UNDERTAKES TO APPEAR BEFORE THE ASSESSING OFFICE R, IF THIS BENCH GIVE AN OPPORTUNITY TO THE ASSESSEE FOR PRODUCING E VIDENCES FOR SUBSTANTIATING HIS CLAIM BEFORE THE ASSESSING OFFIC ER. HE REQUESTED THAT THE MATTER MAY BE SET ASIDE TO THE ASSESSING O FFICER DE NOVO . LD. DR HAS NOT RAISED ANY OBJECTION ON THE REQUEST OF THE ASSESSEES AR. ITA NOS. 4568/D/2018 A.Y. 2009-10 JAGDISH TYAGI 3 4. I HAVE HEARD BOTH THE PARTIES, PERUSED THE RELEV ANT RECORDS AVAILABLE WITH ME. I FIND THAT AO HAS COMPLETED TH E ASSESSMENT U/S 147/144 OF THE INCOME TAX ACT, 1961 VIDE ORDER DATE D 04.03.2016. NO DOUBT THE AO HAS ISSUED NOTICE TO THE ASSESSEE A ND IN RESPONSE TO THE SAME ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED NOR FILED ANY REPLY AND AO COMPLETED THE ASSESSMENT IN DISPUTE ON 04.03.2016. 5. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE FILE D AN APPEAL BEFORE LD. FIRST APPELLATE AUTHORITY WHO HAS ALSO D ECIDED THE SAME AGAINST THE ASSESSEE WITHOUT DECIDING THE GROUND NO . 2 WHICH IS REPRODUCED AS UNDER: - 2. THE ASSESSE HAS NOT RECEIVED SHOW CAUSE NOTICE U/S 144/148/142(1) OF PENDING ASSESSMENT PROCEEDING FOR AY 2009-10, THEREFORE, ASSESSEE HAS NOT PRODUCED ANY R EPLY TO THE LD. ASSESSING OFFICER. 6. I HAVE ALSO PERUSED THE ASSESSMENT ORDER AS WELL AS IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY A ND I AM OF THE VIEW THAT LD. FIRST APPELLATE AUTHORITY HAS NOT DECIDED THE ISSUE REGARDING SERVICE OF NOTICE U/S 144/148/142(1) OF THE INCOME TAX ACT, 1961 RELATING TO THE AY 2009-10. THEREFORE, IN THE INTE REST OF JUSTICE, AS UNDERTAKING GIVEN BY THE LD. AR FOR THE ASSESSEE TH AT ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE WILL APPEAR BEFORE THE AS SESSING OFFICER, IF THIS MATTER IS SET ASIDE TO THE AO FOR DE NOVO ASSESSMENT AND HAVING ALL NECESSARY EVIDENCES FOR SUBSTANTIATING CLAIM OF THE ASSESSEE. IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUE IN D ISPUTE TO THE AO TO DECIDE THE SAME AFRESH AS PER LAW DE NOVO, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE AND THE ASSESSEE THROUG H HIS COUNSEL TO ITA NOS. 4568/D/2018 A.Y. 2009-10 JAGDISH TYAGI 4 APPEAR BEFORE THE AO ON 15.01.2019 AT 10.00 A.M. AN D PRODUCE ALL THE DOCUMENTS TO SUBSTANTIATE HIS CLAIM. THERE IS NO NEED TO ISSUE NOTICE OF HEARING FOR 15.01.2019 BY THE AO BECAUSE THIS ORDER HAS ALREADY BEEN PRONOUNCED IN THE OPEN COURT IN THE PR ESENCE OF BOTH THE PARTIES. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STA NDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 22.11.2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 22/11/2018 *KAVITA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI ITA NOS. 4568/D/2018 A.Y. 2009-10 JAGDISH TYAGI 5 DATE 1. DRAFT DICTATED ON 22.11.2018 2. DRAFT PLACED BEFORE AUTHOR 22.11.2018 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 22.11.2018 6. ORDER PRONOUNCED AND UPLOADED 22.11.2018 7. FILE SENT TO THE BENCH CLERK 22.11.2018 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.