K.C. Sharma, Ghaziabad V. ACIT, Ghaziabad

ITA 4603/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0054 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 23-03-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 18-10-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.4603/DEL/2010 ASSESSMENT YEAR : 1997-98 SHRI KC SHARMA, ACIT, C/O M/S NR & CO., C.A. CIRCLE-1, C-12, DB PLAZA BUSINESS CENTRE, GHAZIABAD. RDC, RAJ NAGAR, GHAZIABAD. V. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.ATZPS ATZPS ATZPS ATZPS- -- -9778 9778 9778 9778- -- -D DD D APPELLANT BY : SHRI AKHILESH KUMAR, ADVOCATE. RESPONDENT BY : MS. ANUSHA KHURANA, SR. DR ORDER PER A.K. GARODIA, AM: THIS IS AN ASSESSEE'S APPEAL FILED AGAINST THE ORDER OF LD CIT(A), GHAZIABAD DATED 9.8.2010 FOR ASSESSMENT YEAR 1997-98. 2. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THE LD CIT(A) IS WRONG, UNJUSTIFIED, UNJUDICIOUS & ILL EGAL IN CONFIRMING THE ASSESSMENT FRAMED BY THE LD ASSESSING OFFICE R U/S 144/251/254 WHICH WAS BARRED BY LIMITATION AS THE TIME LIMIT FOR COMPLETION OF ASSESSMENT/RE-ASSESSMENT HAS ALREADY EXPIRED AND NO ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 199 7- 98 CAN BE PASSED AS ON THE DATE OF ORDER AND THEREFOR E THIS PAGE 2 OF 7 ITA NO4603/DEL/10 ASSESSMENT FRAMED BY THE LD ASSESSING OFFICER IS LIABLE TO B E ANNULLED IN THE FACTS & CIRCUMSTANCES OF THE CASE. 2. THE LD CIT(A) IS WRONG, UNJUSTIFIED, UNJUDICIOUS & ILL EGAL IN CONFIRMING THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S 144/251/254 DATED 20.12.2007 WITHOUT FOLLOWING THE LAID DOWN PROCEDURES OF SEC. 124 OF THE INCOME TAX ACT, 1961 AN D ACCORDINGLY THE ASSESSMENT FRAMED IS ILLEGAL AND LIABL E TO BE ANNULLED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LD CIT(A) IS WRONG, UNJUSTIFIED, UNJUDICIOUS & ILL EGAL IN CONFIRMING THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S 144/251/254 DATED 20.12.2007 FOR THE ASSESSMENT YEAR 19 97-98 AT A TOTAL INCOME OF `.403470/- AND THUS RAISING A DE MAND OF `.99460/- AGAINST THE ASSESSEE IN THE FACTS AND CIRCUMSTAN CES OF THE CASE. 3. IT WAS SUBMITTED BY THE LD AR OF THE ASSESSEE THAT GRO UND NO.2 IS NOT PRESSED AND HENCE GROUND NO.2 IS ACCORDINGLY REJ ECTED AS NOT PRESSED. 4. REGARDING GROUND NO.1 OF THE APPEAL, IT IS SUBMITT ED BY THE LD AR OF THE ASSESSEE THAT IN THE EARLIER ORDER DATED 28.2 .2006 IN I.T.A. NO.3226/DEL/2005, THE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION AND IT WAS HELD BY THE TRIBUNAL THAT THE ISSUE OF ASSESSMENT IS RESTORED BACK TO THE ASSESSING OFFICER SO THAT THE PROCEEDINGS CAN BE TAKEN FOR COMP LETING THE ASSESSMENT IN THIS CASE BY THE ASSESSING OFFICER I.E. DCIT, CIRCLE-1, GHAZIABAD FROM THE POINT AT WHICH THE IRREGULARITY SUPERVENED IN THIS CASE. IT IS SUBMITTED THAT IT HAS BEEN NOTED BY THE LD ASSESSING OFFICER ON PAGE NO.2 OF THE ASSESSMENT ORDER THAT THIS TRIBUNAL ORDER HAD BEEN RECEIVED BY THE LD CIT, GHAZIABAD ON 29.5.2006 . IT IS THE PAGE 3 OF 7 ITA NO4603/DEL/10 SUBMISSION OF THE LD AR OF THE ASSESSEE THAT THE ASSESSING OF FICER SHOULD HAVE PASSED THE ASSESSMENT ORDER AS PER TRIBUNAL DI RECTION WITHIN 21 DAYS BECAUSE THE ORIGINAL ASSESSMENT WAS FRAMED BY HIM ON 10.3.2000 WHEREAS THE SAME WAS GETTING TIME BARRED ON 31.3.2000. IT IS ALSO HIS SUBMISSION THAT EVEN IF THE DATE OF 5.11.1999 ON WHICH THE ASSESSEE RAISED OBJECTION BEFORE LD DCIT, CIRCLE-1, GHAZ IABAD IS THE DATE OF GETTING THE ASSESSMENT ORDER IRREGULAR THEN ALSO , THE ASSESSING OFFICER HAD TIME OF 146 DAYS ONLY I.E. FROM 5.11.199 9 TO 31.3.2000 FOR COMPLETING THE ASSESSMENT BUT IN THE PRESENT CASE, THE A SSESSMENT WAS COMPLETED BY HIM ON 20.12.2007 I.E. AFTER MORE T HAN 18 MONTHS AFTER RECEIPT OF THE TRIBUNAL ORDER BY THE OFFICE O F CIT, GHAZIABAD ON 29.5.2006 AND THEREFORE, THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER IS TIME BARRED. HIS ATTENTION WAS DRAWN TO TH E PROVISIONS OF SUB SECTION (2A) OF SECTION 153 AS PER WHICH THE ASSESSING OFF ICER CAN PASS THE ASSESSMENT ORDER BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER U/S 254 IS RECEIVED BY THE CIT, IT WAS SUBMITTED BY HIM THAT THESE PROVISIONS ARE NOT APPLICAB LE IN THE PRESENT CASE. IT WAS ALSO POINTED OUT BY THE BENCH THAT IT IS NOTED BY THE ASSESSING OFFICER ON PAGE NO.2 OF THE IMPUGNED ASSESSM ENT ORDER THAT A NEW OBJECTION WAS RAISED BY THE ASSESSEE BEFORE TH E ASSESSING OFFICER REGARDING JURISDICTION BY CLAIMING THAT THE JURISDICTION LIES WITH ITO, WARD-1(3), GHAZIABAD AND HENCE, THE PROCEEDING S SHOULD BE TRANSFERRED TO HIM. THE BENCH WANTED TO KNOW AS TO O N WHAT DATE SUCH OBJECTION WAS RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AND WHEN THE SAME WAS DISPOSED OFF BY THE ASSESSING OFFICER . IT WAS SUBMITTED BY THE LD AR OF THE ASSESSEE THAT THE DATE ON WHICH THE OBJECTION WAS RAISED BY THE ASSESSEE IS NOT READILY AVAILA BLE AND HE IS NOT AWARE AS TO WHETHER ANY SPECIFIC ORDER WAS PASSED BY THE ASSESSING OFFICER FOR REJECTING THAT OBJECTION. UNDER T HIS FACTUAL POSITION, IT WAS POINTED OUT BY THE BENCH THAT THIS MA TTER HAS TO GO PAGE 4 OF 7 ITA NO4603/DEL/10 BACK TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THESE OBJECTIONS. LD AR OF THE ASSESSEE HAD NOTHING TO SAY. LD DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE TH ROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE OBJE CTION HAS BEEN RAISED BY THE ASSESSEE BEFORE US AS PER GROUND NO.1 THAT THE IMPUGNED ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS T IME BARRED. IT IS THE CLAIM OF THE ASSESSEE THAT THIS OBJECT ION WAS RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER ALSO BUT THE SAME I S NOT DECIDED BY HIM. THE ASSESSING OFFICER HAS SIMPLY OBSERVED THAT NOTICE U/S 143(2) DATED 10.9.2007 WAS ISSUED WITHIN THE STIPULA TED TIME LIMIT UNDER THE INCOME TAX LAW. THIS OBJECTION WAS REJECTED BY THE LD CIT ON THIS BASIS THAT SINCE THE ASSESSMENT WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE ASSESSING OFFICER, THE PROV ISIONS OF SECTION 153 ARE APPLICABLE AND AS PER THE PROVISIONS OF SECTION 153, THE ASSESSMENT ORDER IS WITHIN TIME BUT HE HAS NOT CONSIDERE D THE OBJECTIONS OF THE ASSESSEE REGARDING APPLICABILITY OF SE CTION 153 OF THE ACT. HE HAS ALSO NOT CONSIDERED THE OTHER ISSUES AS TO WHE N A FRESH OBJECTION WAS RAISED BY THE ASSESSEE BEFORE THE ASSESSING O FFICER REGARDING JURISDICTION BY CLAIMING THAT THE JURISDICT ION NOW LIES WITH ITO, WARD-1(3), GHAZIABAD AND WHEN THAT OBJECTION O F THE ASSESSEE WAS REJECTED BY THE ASSESSING OFFICER. UNDER THIS FACTUAL POSITION, WE FEEL THAT THIS MATTER SHOULD GO BACK TO THE FILE OF T HE ASSESSING OFFICER TO CONSIDER AND DECIDE THE OBJECTIONS OF THE ASSESSEE REG ARDING TIME BARRING OF ASSESSMENT. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD CIT ON THIS ISSUE AND RESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION. THE ASSESSEE SHOULD R AISE PRECISE OBJECTIONS BEFORE THE ASSESSING OFFICER REGARDING TIME LIMITATION AND THOSE OBJECTIONS OF THE ASSESSEE SHOULD BE CONSIDERED PAGE 5 OF 7 ITA NO4603/DEL/10 AND DECIDED BY THE ASSESSING OFFICER BY WAY OF PASSING A SPEAKING AND REASONED ORDER. WHILE DOING SO, HE SHOULD ALSO CONSIDER THE APPLICABILITY OF THE PROVISIONS OF SECTION 153(2A) OF THE ACT BECAUSE IF IT IS FOUND THAT THE PROVISIONS OF SECTION 153(2A) ARE APP LICABLE THEN IT HAS TO BE ACCEPTED THAT THE ASSESSMENT FRAMED BY THE ASSESSI NG OFFICER IS WITHIN TIME. IN CASE, IT IS FOUND THAT THE PROVISIONS OF SECTION 153(2A) ARE NOT APPLICABLE IN THE PRESENT CASE, THEN THIS FACT HAS ALSO TO BE CONSIDERED AS TO WHEN A NEW OBJECTION WAS RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER REGARDING JURISDICTION BY CLAIMING THAT THE JURISDICTION NOW LIES WITH ITO, WAR D-1(3), GHAZIABAD AND WHEN THAT OBJECTION WAS REJECTED BY THE ASSESSING OF FICER BECAUSE THAT TIME PERIOD HAS TO BE EXCLUDED FOR THE PURPOSE O F DECIDING THE TIME CONSUMED BY THE ASSESSING OFFICER IN FRAMING THE ASSE SSMENT AFTER RECEIPT OF THE TRIBUNAL ORDER IN THE OFFICE O F CIT, GHAZIABAD AND ONLY REMAINING TIME CONSUMED BY THE ASSESSING OFFICER SHO ULD BE COMPARED WITH THE TIME AVAILABLE WITH THE ASSESSING OFF ICER FOR FRAMING THE ASSESSMENT ORDER. THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW AS PER ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. REGARDING GROUND NO.3 OF THE ASSESSEE, WE FEEL THAT SINCE WE HAVE RESTORED BACK THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER FOR A DECISION REGARDING VALIDITY OF THE ASSESSMENT ORDER, AS TO WHETHER THE SAME WAS PASSED WITHIN THE TIME LIMIT AVAILABLE AS PER L AW OR NOT, THE MERIT OF ADDITION IN DISPUTE CANNOT BE DECIDED AT TH IS STAGE AND HENCE IF IT IS HELD BY THE ASSESSING OFFICER THAT THE ASSESSMENT O RDER WAS PASSED BY THE ASSESSING OFFICER WITHIN TIME THEN HE SHOULD ALSO DECIDE AFRESH REGARDING QUANTUM OF ASSESSABLE INCOME IN THE PRE SENT CASE. AT THIS STAGE, NO ADJUDICATION IS CALLED FOR FROM OUR SIDE REGARDING GROUND NO.3 OF THE ASSESSEE. PAGE 6 OF 7 ITA NO4603/DEL/10 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE 25TH DAY MARCH, 2011. SD/- SD/- (R.P. TOLANI) (A.K. GAR ODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT 25 .3.2011. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). PAGE 7 OF 7 ITA NO4603/DEL/10