ACIT, New Delhi V. M/s. Money Growth Investment & Consultant Pvt. Ltd., New Delhi

ITA 4878/DEL/2011

• Counselvise Citation: 487820114 RSA 2011
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 10-03-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 04-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Assessment record
• Section: 142(1); 147; 148

Judgement Text

ITA NO. 4878/ DEL/ 2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A.NO. 4878 /DEL/201 1 A.Y. : 200 3 - 0 4 DCIT - 5(1), ROOM NO. 409 - A, CR BUILDING I.P. ESTATE, NEW DELHI VS . M/S MONEY GROWTH INVESTMENT & CONSULTANT PVT. LTD., 8931/1, MULTANI DHANDA, PAHARGANJ, NEW DELHI (PAN: AAACM0140N) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. P. DAM. KANUNJNA, SR. DR ASSESSEE BY : NONE PRESENT DATE OF HEARING : 10 - 0 3 - 201 5 DATE OF ORDER : 1 1 - 0 3 - 201 5 ORDER PER H.S. SIDHU : J M THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 1 0 / 8 /20 1 1 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - VIII , NEW DELHI FOR THE ASSTT. YEAR 2003 - 04 ON THE FOLLOWING GROUNDS: - 1 . THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND CONTRARY TO FACTS AND LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED HOLDING THAT NO NOTICE U/S. 148 OF THE ACT WAS ITA NO. 4878/ DEL/ 2011 2 SERVED UPON THE ASSESSEE AT ANY TIME BEFORE THE COMPLETION OF ASSESSMENT. 3. THE CIT(A) THEREFORE, ERRED IN CANCELLING THE ASSESSMENT HOLDING THAT THE PROCEEDING U/S. 147 OF THE ACT WERE NOT SUSTAINABLE. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, O R AMEND ANY GROUNDS OF THE APPEAL RAISED ABOVE AT THE TIME OF HEARING. 2. THE FACTS NARRATED BY THE REVENUE ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, NEED NOT TO REPEAT THE SAME HERE FOR THE SAKE OF BREVITY. 3. IN THIS CASE NOTICE WAS SENT FOR HE ARING FOR 13.10.2014, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE, THEREFORE, THE CASE WAS ADJOURNED FOR TODAY I.E. 10.3.2015 FOR WHICH NOTICE WAS SENT TO THE ASSESSEE THROUGH THE REGISTRY AS WELL AS THROUGH THE DEPARTMENTAL REPRESENTATIVE OFFICE ON THE A DDRESS GIVEN BY THE ASSESSEE, HOWEVER, AGAIN TODAY I.E. 10.3.2015 NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY REQUEST FOR ADJOURNMENT IS FILED. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT NO USEFUL PURPOSE WOULD BE SERVED TO ADJOURN THE CASE AGAIN AND AGAIN. THEREFORE, WE ARE DECIDING THE APPEAL, EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS AVAILABLE ON RECORD. 4 . LD. DR RELIED UPON THE ORDER PASSED BY THE AO AND ALSO REITERATED THE CONTENTIONS RAISED IN T HE GROUNDS OF APPEAL. 5 . WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDER PASSED BY THE LD. CIT(A). WE FIND THAT LD. CIT(A) IN THE IMPUGNED ORDER HAS ADJUDICATED THE ISSUE S IN DISPUTE VIDE PARA NO. 3 .3 TO 4.5 AT PAGES 2 TO 5 VIDE HIS ORDER DATED 1 0 . 8 .201 1 . FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE LD. CIT (A) S ORDER IS REPRODUCED AS UNDER: - ITA NO. 4878/ DEL/ 2011 3 3.3 IN THE COURSE OF APPELLATE PROCEEDINGS, THE LD. COUNSEL FOR THE APPELLANT COMPANY HAS VEHE MENTLY ARGUED AND SUBMITTED THAT THE LD. AO DID NOT ISSUE AND EFFECT SERVICE OF ANY VALID NOTICE U/S. 148 OF THE I.T. ACT, 1961 WITHIN THE PRESCRIBED PERIOD OF 6 YEARS FROM THE END OF THE RELEVANT AY I.E. 31.3.2010. IT IS THEREFORE, ARGUED THAT THE PROCEE DINGS INITIATED U/S. 147/148 ARE NOT SUSTAINABLE IN LAW. IN ORDER TO SUBMIT THE RELEVANT FACTS, THE LD. COUNSEL FOR THE APPELLANT COMPANY HAS MADE THE FOLLOWING WRITTEN ARGUMENTS: - IN THIS REGARD THE PERTINENT FACTS ARE THAT THE APPELLANT FILED THE RETURN OF INCOME FOR THE A.Y. 2003 - 04 ALONGWITH AUDIT REPORT, COMPUTATION OF INCOME, AUDITED FINANCIAL STATEMENTS ETC. IN TERMS OF PROVISIONS OF SECTION 147 READ WITH SECTION 149 OF IT AC T, 1961 NOTICE FOR REASSESSMENT COULD. BE ISSUED FOR THE ASSESSMENT YEAR 2003 - 04 ONLY UPTO 31.03.2010. IT IS RESPECTFULLY SUBMITTED THAT NO NOTICE U/S. 148 ISSUED PRIOR TO 31.03.2010 WAS EVER RECEIVED BY THE ASSESSEE OR ANY OF ITS DIRECTOR AT ITS ADDRESS 8 931/1, MULTANI DHANDA, PAHARGANJ, DELHI EVER TILL DATE. IN THIS REGARDS, IN TERMS OF TRITE LAW IT IS HELD. IT IS WELL - SETTLED THAT ISSUANCE OF NOTICE U/S 148 IS CONDITION PRECEDENT FOR FRAMING THE ASSESSMENT ORDER U/S 147. IT IS EQUALLY WELL - SETTLED THAT IF NO SUCH NOTICE IS ISSUED OR NOTICE ISSUED IS INVALID OR NOT IN ACCORDANCE WITH LAW OF NOTICE IS NOT SERVED ON THE PROPER PERSON, THEN ASSESSMENT FRAMED WOULD. BE ILLEGAL. THEREFORE, TRIBUNAL HAD TAKEN CORRECT VIEW. THE APPEAL WAS DISMISSED. LAXMI NARAIN 168 TAXMAN 128 (P&H). IN THIS CASE NO NOTICE U/S 148 EVEN INVALID OR IMPROPERLY ISSUED PRIOR TO 31.03.2010 WAS RECEIVED BY THE ASSESSEE COMPANY. IN THIS BACK GROUND, THE PERTINENT FACTS AND PROVISIONS OF LAW IN SUPPORT ARE SUCCINCTLY STATED HEREUNDER: ITA NO. 4878/ DEL/ 2011 4 1. THAT ASSESSEE COMPANY HAS BEEN REGULARLY FILING RETURN OF INCOME AT ITS ADDRESS 8931/1, MULTANI DHANDA, PAHARGANJ, DELHI FOR PAST MORE THAN THREE YEARS AND THE COPY OF IT RETURNS FOR PAST THREE YEARS ENDING 31.03.09, 31.03.2008 AND 31.03.07 ARE AVAILAB LE IN PAPER BOOK. IT MAY BE APPRECIATED THAT RETURN OF INCOME FILED INCLUDES RETURNS SUBMITTED ELECTRONICALLY PRIOR TO 26.03.2010 CONVEYING THAT THE DATA OF THE COMPANY IN IT DEPTT. DATABASE IS UPDATED WITH CORRECT NAME & ADDRESS); 2. THAT ASSESSEE COMPAN Y HAS BEEN REGULARLY RECEIVING NOTICES AND OTHER COMMUNICATIONS PRIOR TO 26.03.2010 IN TERMS OF SECTION 282 OF IT ACT, 1961 AT ADDRESS 8931/1, MULTANI DHANDA, PAHARGANJ, DELHI (COPY OF NOTICES RECEIVED AT ADDRESS FROM ID. AA ARE ENCLOSED IN PAPER BOOK); T HUS, IN THE FACTS AND CIRCUMSTANCES, IT CANNOT BE CLAIMED THAT CORRECT AND UPDATED ADDRESS OR PROPER NAME OF APPELLANT WAS NOT IN KNOWLEDGE OF ID. AO ON 31.03.2010 I.E. AT THE TIME OF ISSUE OF NOTICE U/S 147/148 FOR AY 2003 - 04. 3. THAT ASSESSEE COMPANY HA S NO OFFICE OR PLACE OF BUSINESS DURING THE FY 2009 - 10 AT E - 18, MODEL TOWN, DELHI; 4. THAT ASSESSEE HAS NO KNOWLEDGE OF ANY NOTICE U/S 148 OR 143 OR 142 REGARDING ASSESSMENT U/S 148 FOR AY 2003 - 04 WAS SERVED EITHER BY POST OR AFFIXTURE AT THE ADDRESS 8931 /1, MULTANI DHANDA, PAHARGANJ, DELHI AND ASSESSEE COMPANY MAKES A CATEGORICAL DENIAL; 5. THAT ASSESSMENT ORDER U/S 148/144 DULY ADDRESSED AT ADDRESS 8931/1, MULTANI DHANDA, PAHARGANJ, DELHI WAS THE FIRST COMMUNICATION RECEIVED FROM THE ID. AO BY ASSESSEE COMPANY REGARDING ASSESSMENT PROCEEDINGS U/S. 148 FOR THE AY 2003 - 04; ITA NO. 4878/ DEL/ 2011 5 6. THAT REGARDING ID. AO CLAIM THAT NOTICE U/S 143 AND 142 DATED 03.12.2010 WERE SERVED BY HAND ON MRS. MANJU WIFE OF VARUN GUPTA DIRECTOR IT IS SUBMITTED THAT NAME OF VARUN GUPTA'S WIF E IS MRS. MEGHA GUPTA AND NOT MANJU GUPTA AND VARUN GUPTA MAKES A CATEGORICAL DENIAL OF SERVICE OF ANY SUCH NOTICE U/S. 143 (2) OR 142 (1) TO HIM. IN ANY CASE, IT IS REITERATED THAT FOR INITIATING AND FRAMING ASSESSMENT U/S. 148 WHAT IS REQUIRED IS ISSUE A ND SERVICE OF NOTICE U/S. 148 PRIOR TO 31.03.2010 AND NON ISSUANCE OF SUCH NOTICE PRIOR TO 31.03.2010 MAKES THE ASSESSMENT VOID. IN THIS REGARDS RELIANCE IS PLACED ON THE FOLLOWING JUDGMENT OF JURISDICTIONAL DELHI HIGH COURT AS GIST REPRODUCED HEREUNDER: WHETHER WHERE ASSESSEE ENTERED INTO APPEARANCE, AFTER RECEIVING NOTICES UNDER SECTIONS 142(1) AND 143(2) AND CATEGORICALLY DENIED RECEIPT OF NOTICE UNDER SECTION 148, ARGUMENT OF REVENUE THAT HIS APPEARANCE WAS IN RESPONSE TO NOTICE UNDER SECTION 148 DID N OT ADVANCE CASE OF REVENUE THAT NOTICE UNDER SECTION 148 WAS ACTUALLY SERVED UPON ASSESSEE - RAJESH KUMAR SHARMA 3111TR 235 (DEL.) IT MAY BE APPRECIATED THAT IN THIS CASE EVEN NO NOTICE U/S 143(2)/142(1) WAS SERVED ON ASSESSEE OR DIRECTOR AS SUCH THIS IS EVEN AT PRESENT CASE IS AT LOWER PEDESTAL THAN CASE STATED HEREIN BEFORE. 7. THAT ASSESSEE HAS TIME AND AGAIN REQUESTED ID. AD TO PROVIDE THE COPY OF VARIOUS NOTICES AND COMMUNICATIONS MENTIONED IN THE ASSESSMENT ORDER AND COPY OF ASSESSEE REQUEST LETTER DATED 25.04.2011 IS AVAILABLE IN PAPER BOOK BUT THE COPIES ARE NOT PROVIDED AND INSPECTION OF FILE IS NOT PERMITTED; 8. AS REGARDS, THE CLAIM OF ID. AD THAT NOTICES U/S 148 DATED 26.03.2010 WAS ISSUED BY SPEED POST AND AFFIXTURE WHILE ASSESSEE ITA NO. 4878/ DEL/ 2011 6 MAKES A CAT EGORICAL DENIAL OF ANY KNOWLEDGE OF NOTICE U/S 148 DATED 26.03.2010 ADDRESSED TO VALID ADDRESS AT 8931/1, MULTANI DHANDA, PAHARGANJ, DELHI ISSUED/SERVED EITHER BY POST OR AFFIXTURE IT IS BROUGHT TO KIND KNOWLEDGE THAT IN TERMS OF PROVISIONS OF SECTION 282 SERVICE BY AFFIXTURE IS ONLY ALTERNATIVE MODE AND CAN BE MADE ONLY AFTER ASSESSEE REFUSES TO RECEIVE OR HINDERS SERVICE BY POST AND IN THIS CASE THERE ARE NO SUCH CIRCUMSTANCES AS SUCH ANY CLAIM OF ID. AD IS ALSO CONTRARY TO FACTS AND PROVISIONS OF LAW.' 4. I HAVE CAREFULLY CONSIDERED THE FACTS NARRATED BY THE ID. AD IN THE IMPUGNED ASSESSMENT ORDER AND THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT COMPANY. ON CONSIDERATION, I FIND THAT THE CASE OF THE APPELLANT COMPANY IS THAT IT HAS RECEIVED NO NOTICE U/S 148 OF THE IT ACT, 1961 ON OR BEFORE 31.03.2010 I.E. WITHIN THE LIMITATION OF 6 YEARS FROM THE END OF THE RELEVANT AY. AS PER THE AO, THE NOTICE U/S 148 OF THE IT ACT, 1961 WAS ISSUED ON 26.03.2010 AND WAS SENT FOR SERVICE BY SPEED POST. HE ALSO STATES THAT SERVICE OF THE NOTICE WAS ALSO MADE BY AFFIXTURE ON THE AVAILABLE ADDRESS AT E - 18, MODEL TOWN - ILL, DELHI AND AT 8931/1 MULTANI DHANDA, PAHARGANJ, NEW DELHI. HOWEVER, THE APPELLANT COMPANY IS CHALLENGING THE SERVICE OF THE NOTICE U/S 148 OF THE ACT. THE CASE OF THE APPELLANT COMPANY IS THAT IT HAS BEEN OPERATING FROM THE PRESENT ADDRESS I.E. 8931/1 MULTANI DHANDA, PAHARGANJ FOR MANY YEARS AND THE DEPARTMENT HAS ALSO BEEN COMMUNICATED WITH IT AT THE AFORESAID ADDRESS ONLY FOR MANY YEARS. IN THIS SITUAT ION, IT IS ARGUED THAT THERE WAS NO JUSTIFICATION IN SENDING THE NOTICE IN QUESTION AT E - 18, MODEL TOWN - ILL, DELHI. IT IS ALSO ARGUED THAT ALL THE NOTICES ADDRESSED TO THE PRESENT PLACE OF BUSINESS, NAMELY, 8931/1 MULTANI DHANDA, PAHARGANJ, NEW DELHI HAVE ALWAYS BEEN SERVED UPON THE APPELLANT COMPANY BY MEANS OF NORMAL REGISTERED POST AND THERE HAS BEEN NO OCCASION FOR THE DEPARTMENT TO EFFECT SERVICE BY AFFIXTURE. THEREFORE, IT ITA NO. 4878/ DEL/ 2011 7 IS ARGUED THAT EITHER NO NOTICE U/S 148 OF THE IT ACT, 1961 WAS ISSUED FOR THE AY UNDER CONSIDERATION OR THE SAME WAS NOT SERVED UPON THE APPELLANT COMPANY TILL THE DATE OF COMPLETION OF ASSESSMENT. IN SUPPORT OF THE AFORESAID, THE APPELLANT COMPANY HAS ARRANGED TO FILE AN AFFIDAVIT DULY SWORN BY SH. VARUN GUPTA, THE DIRECTOR OF THE APPELLANT COMPANY. IN THE SAID AFFIDAVIT, SH. GUPTA HAS STATED THAT THE PRINCIPAL PLACE OF BUSINESS OF THE APPELLANT COMPANY IS SITUATED AT 8931/1 MULTANI DHANDA, PAHARGANJ, NEW DELHI AND ALL THE RETURNS STARTING WITH AY 2004 - 05 HAVE BEEN FILED FROM THE A FORESAID ADDRESS ONLY. HE ALSO STATES THAT THE APPELLANT COMPANY DOES NOT HAVE ANY BUSINESS PLACE AT E - 18 MODEL TOWN - ILL, DELHI DURING THE FY 2009 - 10. AS REGARDS, SERVICE OF NOTICE ON SMT. MANJU GUPTA WIFE OF SH. VARUN GUPTA RESIDING AT 8 - 146, PASCHIM VIH AR, NEW DELHI, IT IS STATED BY HIM THAT THE NAME OF HIS WIFE IS MRS. MEGHA GUPTA AND THERE IS NO PERSON IN HIS FAMILY NAMED MANJU GUPTA. IN VIEW OF THE AFORESAID, IT IS DEPOSED BY SH. VARUN GUPTA THAT NO NOTICE UNDER SECTIONS 148, 143(2) AND 142(1) OF THE IT ACT, 1961 WAS RECEIVED BY THE APPELLANT COMPANY FOR THE AY UNDER CONSIDERATION TILL THE DATE OF COMPLETION OF ASSESSMENT IN QUESTION . 4.1 IN ORDER TO FIND OUT THE CORRECT FACTUAL POSITION, THE VERIFICATION FROM THE RELEVANT ASSESSMENT RECORDS WAS NECE SSARY AND THEREFORE, THE SAME WERE CALLED FOR FROM THE AO. HOWEVER, IT HAS BEEN INFORMED THAT THE RECORDS FOR THE AY UNDER CONSIDERATION ARE NOT AVAILABLE/ TRACEABLE. 4.2 IN VIEW OF THE AFORESAID AND LOOKING TO THE FACTS NARRATED BY SH. VARUN GUPTA IN HIS AFFIDAVIT, I AM INCLINED TO HOLD THAT THE AO HAS NOT BEEN ABLE TO SUBSTANTIATE THE FACT THAT THE NOTICE U/S 148 OF THE IT ACT, 1961 FOR THE AY UNDER CONSIDERATION WAS SERVED UPON THE APPELLANT COMPANY AT ANY TIME BEFORE COMPLETING THE ASSESSMENT. ACCORDIN GLY, ITA NO. 4878/ DEL/ 2011 8 THE PROCEEDINGS U/S 147/148 OF THE ACT, 1961 ARE HELD TO BE NOT SUSTAINABLE. 5. AS THE PROCEEDINGS U/S 147/148 ITSELF HAVE BEEN HELD TO BE NOT SUSTAINABLE IN LAW, I DO NOT CONSIDER IT APPROPRIATE TO DECIDE THE INDIVIDUAL GROUND OF THE APPEAL CONCERNI NG MERITS OF ADDITIONS MADE IN THE IMPUGNED ASSESSMENT ORDER. 6. AFTER GOING THROUGH THE AFORESAID ORDER PASSED BY THE LD. CIT(A) ON THE ISSUE IN DISPUTE, WE ARE OF THE CONSIDERED VIEW THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED A WELL REASONED ORDER BY STATING THAT THE AO HAS NOT BEEN ABLE TO SUBSTANTIATE THE FACT THAT THE NOTICE U/S. 148 OF THE I.T. ACT, 1961 FOR THE ASSTT. YEAR UDER CONSIDERATION WAS SERVED UPON THE ASSESSEE COMPANY AT ANY TIME BEFORE COMPLETING THE ASSESSMENT. ACCORDINGLY, HE RIGHTLY HELD THAT THE PROCEEDINGS U/S. 147/148 OF THE ACT, 1961 ARE HELD TO BE NOT SUSTAINABLE. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND THEREFORE, NO INTERFERE IS REQUIRED ON OUR PART, HENCE, WE UPHOLD THE IMPUGNED ORDER P ASSED BY THE LD. CIT(A) ON TH ESE ISSUE S AND DECIDE THE ISSUE S AGAINST THE REVENUE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE O PEN C OURT ON 1 1 / 0 3 /20 1 5 . SD / - S D / - [ T.S. KAPOOR ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 1 1 / 0 3 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4 . CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 4878/ DEL/ 2011 9