Sh. Farooq Ahmad Mirchal, Kashmir V. The Income-tax Officer, Kashmir

ITA 493/ASR/2013

• Counselvise Citation: 49320914 RSA 2013
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-03-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 15-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: A M ZARGAR
• Keywords: Opportunity of being heard; Assessment record
• Section: 142(1); 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 493(ASR)/2013 ASSESSMENT YEAR: 2010-11 PAN: AMZPM0448F SH. FAROOQ AHMAD MIRCHAL, VS. INCOME TA X OFFICER, WARD 3(2), MODEL TOWN, SOPORE, KASHMIR SRINAGAR/KUPWARA, KAS HMIR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. A. M. ZARGAR, CA RESPONDENT BY: SH. AMRIK CHAND, DR DATE OF HEARING: 04.03.2014 DATE OF PRONOUNCEMENT: 04.03.2014 ORDER PER BENCH 1. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINS T THE IMPUGNED ORDER DATED 23.05.2013 PASSED BY LEARNED CIT(A), JA MMU, FOR THE ASSESSMENT YEAR 2010-11. 2. FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH THE PARTIES; THEREFORE, THERE IS NO NEED TO REPEAT THE SAME. 3. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT LEARNED FIRST APPELLATE AUTHORITY HAS WRONGLY UPHELD THE ORDER OF THE 2 I.T.A. NO. 493(ASR)/2013 ASSESSMENT YEAR: 2010-11 ASSESSING OFFICER IN THE ABSENCE OF SERVICE OF NOTI CE UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE A CT), DATED 02.09.2011 BY HOLDING THAT THE SERVICE OF THAT NOTI CE IS VALID SERVICE UPON THE ASSESSEE. HE FURTHER STATED THAT THE LEARNED FI RST APPELLATE AUTHORITY HAS WRONGLY UPHELD THE FINDINGS OF THE ASSESSING OF FICER THAT THE NOTICE UNDER SECTION 142(1) OF THE ACT, DATED 26.09.2012, WAS SENT AND RECEIVED BY THE ASSESSEE ON THE SAME ADDRESSES AND SERVICE O F NOTICE UNDER SECTION 143(2) IS ON THE CORRECT ADDRESS. 4. SECONDLY, THE LEARNED COUNSEL FOR THE ASSESSEE S TATED THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS NOT DECIDED T HE GROUND RAISED BY THE ASSESSEE BEFORE HIM I.E. GROUND NO. 1, CHALLENGING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER BEING BAD IN LAW AN D AGAINST THE FACTS OF THE CASE AND ON ADDITION ALSO. LEARNED FIRST APPELL ATE AUTHORITY HAS DECIDED THE LEGAL GROUND ONLY REGARDING SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT AND NOT COMMENTED UPON THE MERIT OF THE CASE IN SPITE OF THE SAID ISSUE RAISED BY THE ASSESSEE BEFORE HIM . 5. ON THE CONTRARY, LEARNED DR RELIED UPON THE ORDE R PASSED BY LEARNED CIT(A). 3 I.T.A. NO. 493(ASR)/2013 ASSESSMENT YEAR: 2010-11 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITES AND WE ARE OF THE VIEW THAT THE LEARNED FIRST APPEL LATE AUTHORITY HAD DECIDED THE ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE BY GIVING HIS FINDINGS IN PARA NO. 4.2 AT PAGE NO. 5 & 6, WHICH IS REPRODUCED AS UNDER : I HAVE CONSIDERED THE RIVAL SUBMISSION. THE A.O. HA S POINTED OUT THAT THE ADDRESSES ON PAN DATABASE OF THE APPELLANT IS T HE SAME ON WHICH NOTICE WAS ISSUED. THE PAN DATABASE HAD TWO ADDRESS ES ONE RESIDENCE ADDRESSED AND OTHER OFFICE ADDRESS. IF PA RT INFORMATION ABOUT RESIDENCE ADDRESSES IS CORRECT THEN THERE IS NO REASON TO DISBELIEVE THE OFFICE ADDRESS ON WHICH NOTICE WAS A DDRESSED. THE APPELLANT IS DISOWNING THE OFFICE ADDRESSES WITH A PURPOSE TO INVALIDATE THE NOTICE AND ASSESSMENT. MOREOVER, THE NOTICE U/S 142(1) ISSUED ON THE SAME ADDRESS WAS NOT CONTESTED AND AC CEPTED TO HAVE RECEIVED ON 26.09.2012. THE APPELLANT HAS ALSO NOT COMMUNICATED CHANGE IN ADDRESS, WHICH WAS INCUMBENT ON HIM. SO FAR JURISDICTION IS CONCERNED. I HAVE GONE THROU GH THE ASSESSMENT RECORD AND FOUND THAT THE CASE WAS VALIDLY RECEIVED ON TRANSFER FROM WARD-3(1) BY THE A.O. WARD-3(2). THUS THE PLEA OF T HE APPELLANT ABOUT LACK OF JURISDICTION IS NOT SUSTAINABLE. THE APPELLANT HAS NOT MADE ANY SUBMISSION ON MERIT TO CONTROVERT THE FINDINGS OF THE A.O. HENCE THE ADDITION OF RS. 26,8 7,450/- ON ACCOUNT OF UNEXPLAINED DEPOSIT IN BANK ACCOUNT IS CONFIRMED . 7. WE HAVE GONE THROUGH THE IMPUGNED ORDER AS WELL AS THE ORDER PASSED BY THE ASSESSING OFFICER ON THE ISSUE IN DIS PUTE AND WE ARE OF THE CONSIDERED VIEW THAT THE LEARNED FIRST APPELLATE AU THORITY HAS RIGHTLY 4 I.T.A. NO. 493(ASR)/2013 ASSESSMENT YEAR: 2010-11 UPHELD THE ORDER OF THE ASSESSING OFFICER ON THE LE GAL ISSUED I.E. ABOUT THE VALID SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT AND THE FINDINGS OF THE LEARNED FIRST APPELLATE AUTHORITY O N THE VALID SERVICE IS UNDER LAW AND WE ARE OF THE VIEW THAT NO INTERFEREN CE IS CALLED FOR IN THE WELL REASONED ORDER PASSED BY THE LEARNED FIRST APP ELLATE AUTHORITY ON THE ISSUE IN DISPUTE AND WE UPHOLD THE IMPUGNED ORDER O N THIS VERY ISSUE. 8. AS REGARDS TO THE ADDITION MADE BY THE ASSESSING OFFICER, NO DOUBT THE ASSESSING OFFICER HAS COMPLETED THE ASSES SMENT ON 10.01.2013 UNDER SECTION 144 OF THE ACT AND MADE THE ADDITION UNDER SECTION 69 OF THE ACT. BUT THE LEARNED FIRST APPELLATE AUTHORITY HAS NOT GIVEN ANY FINDING ON THE ADDITION MADE BY THE ASSESSING OFFICER; IN S PITE OF THE FACT THE ASSESSEE HAS TAKEN GROUND NO. 1 BEFORE HIM. WE ARE OF THE VIEW THAT THE ADDITION MADE BY THE ASSESSING OFFICER WAS UNDER CH ALLENGE BEFORE THE LEARNED FIRST APPELLANT AUTHORITY AND HE OUGHT TO H AVE DECIDED THE SAME AS PER RECORD AND AS PER LAW. THEREFORE, IN THE INTERE ST OF JUSTICE, WE SET ASIDE THE CASE OF THE ASSESSEE TO LEARNED CIT(A), J AMMU, WITH THE DIRECTION TO DECIDE AND ADJUDICATE THE ISSUE OF ADD ITION MADE BY THE ASSESSING OFFICER AFRESH UNDER THE LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 I.T.A. NO. 493(ASR)/2013 ASSESSMENT YEAR: 2010-11 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH MARCH, 2014 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4 TH MARCH, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. FAROOQ AHMAD MIRCHAL, MODEL TOWN , SOPORE, KASHMIR 2. INCOME TAX OFFICER, WARD 3(2), SRINAGAR/KUPWARA, KA SHMIR 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.