Aparna Ashram, New Delhi V. DDIT(E), New Delhi

ITA 5120/DEL/2011

• Counselvise Citation: 512020114 RSA 2011
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-10-2012
• Assessment Year: 1988-1989
• Appeal Filed On: 16-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM BILASH MEENA
• Assessee Lawyers: SUBHASH DUTTA
• Keywords: Assessment record
• Section: 142(1); 246; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NOS SS S. .. .5113/DEL/2011 TO 5123/DEL/2011 5113/DEL/2011 TO 5123/DEL/2011 5113/DEL/2011 TO 5123/DEL/2011 5113/DEL/2011 TO 5123/DEL/2011 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 1979 1979 1979 1979- -- -80 TO 1983 80 TO 1983 80 TO 1983 80 TO 1983- -- -84, 1986 84, 1986 84, 1986 84, 1986- -- -87, 1989 87, 1989 87, 1989 87, 1989- -- -90, 1988 90, 1988 90, 1988 90, 1988- -- -89, 89, 89, 89, & 1990 & 1990 & 1990 & 1990- -- -91 TO 1992 91 TO 1992 91 TO 1992 91 TO 1992- -- -93 9393 93 APARNA ASHRAM, APARNA ASHRAM, APARNA ASHRAM, APARNA ASHRAM, A AA A- -- -50, 50, 50, 50, FRIENDS COLONY (EAST), FRIENDS COLONY (EAST), FRIENDS COLONY (EAST), FRIENDS COLONY (EAST), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : AAATA3999E. PAN : AAATA3999E. PAN : AAATA3999E. PAN : AAATA3999E. VS. VS. VS. VS. DEPUTY DIRECTOR OF INCOME TAX (E), DEPUTY DIRECTOR OF INCOME TAX (E), DEPUTY DIRECTOR OF INCOME TAX (E), DEPUTY DIRECTOR OF INCOME TAX (E), INVESTIGATION CIRCLE INVESTIGATION CIRCLE INVESTIGATION CIRCLE INVESTIGATION CIRCLE- -- -I II I, ,, , AAYKAR BHAWAN, DISTT. CENTRE, AAYKAR BHAWAN, DISTT. CENTRE, AAYKAR BHAWAN, DISTT. CENTRE, AAYKAR BHAWAN, DISTT. CENTRE, LAXMI NAGAR, LAXMI NAGAR, LAXMI NAGAR, LAXMI NAGAR, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH DUTTA, ADVOCATE. RESPONDENT BY : SHRI RAM BILASH MEENA, SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST TH E CONSOLIDATED ORDER OF LEARNED CIT(A)-XXI, NEW DELHI DATED 31 ST AUGUST, 2011 FOR THE AY 1979-80 TO 1983-84, 86-87, 89-90, 88-89 AND 1990 -91 TO 1992-93. 2. IN ALL THESE APPEALS, COMMON GROUNDS ARE RAISED BY THE ASSESSEE. THEREFORE, FOR THE SAKE OF BREVITY, WE R EPRODUCE HEREIN BELOW THE GROUNDS RAISED IN AY 1979-80 :- 1. THAT THE ORDER UNDER APPEAL IS AGAINST LAW. 2. THAT THE LD.AO HAS NOT BEEN JUSTIFIED IN HOLDING THAT THE APPELLANT SOCIETY IS A PERSON U/S 2(31) OF THE INCOME TAX ACT, 1961 AND IS AN ASSESSABLE ENTITY UNDER THE INCOME TAX ACT, 1961. ITA NOS.5113 TO 5123/DEL/2011 2 3. THE LD.AO HAS MIXED UP THE EXEMPTION FROM TAX WI TH THE REQUIREMENT OF LAW THAT AN ASSESSEE MUST BE A P ERSON BEFORE INCOME TAX ACT IS APPLIED. THE APPELLANT SU BMITS THAT AS THE APPELLANT IS NOT A PERSON UNDER THE INC OME TAX ACT, THE APPELLANT CANNOT BE ASSESSED UNDER THE INC OME TAX ACT. 4. THAT THE LD.AO HAS ERRED IN LAW IN HOLDING THAT ONLY AOPS OTHER THAN COVERED AND CLAIMING EXEMPTION U/S 11, 12 AND 13 OF THE INCOME TAX ACT WOULD BE COVERED BY THE JUDGMENT OF THE SUPREME COURT IN G.MURGUGESAN AND BROTHERS VS. CIT MADRAS (1973) 88 ITR 432 SC WHEN T HE SUPREME COURT HAS RULED THAT AOPS WHICH DO NOT HAVE THEIR AIMS AND OBJECTS TO EARN PROFIT OR GAIN DOES NOT FA LL IN THE DEFINITION OF AOPS ASSESSABLE UNDER THE INCOME TAX ACT, 1961. 5. ANY OTHER GROUND WHICH MAY BE URGED AND ALLOWED AT THE TIME OF ARGUMENTS. 3. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED COUNSEL FOR THE ASSESSEE THAT THIS IS A SECOND ROUN D OF APPEAL AND IN THE FIRST ROUND BEFORE THE ITAT, THE ASSESSEE HAS A RGUED THAT ASSESSEE, WHICH IS A SOCIETY, IS NOT DERIVING ANY INCOME AND, THEREFORE, IT IS NOT A PERSON WITHIN THE MEANING OF SECTION 2(31) OF THE I NCOME-TAX ACT, 1961. THE ITAT SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER. THAT WHILE GIVING EFFECT TO THE SET ASIDE PROCEEDIN GS, THE ASSESSING OFFICER FIXED THE CASE FOR HEARING AND DURING THE C OURSE OF FRESH PROCEEDINGS, THE ASSESSEE EXPLAINED IN DETAIL WHY I T DOES NOT FALL WITHIN THE DEFINITION OF PERSON UNDER THE IT ACT. THE ASSESSING OFFICER, VIDE LETTER DATED 3 RD NOVEMBER, 2010, HELD THAT ASSESSEE IS A PERSON WITHIN THE DEFINITION OF SECTION 2(31) OF TH E IT ACT. THEREFORE, ITA NOS.5113 TO 5123/DEL/2011 3 THE ASSESSEE IS LIABLE FOR THE PROCEEDINGS UNDER TH E INCOME-TAX ACT. THAT THE ABOVE LETTER DETERMINES THE ASSESSEES RIG HTS AND LIABILITIES AND THE ASSESSING OFFICER HAS DECIDED THE ASSESSEE S CLAIM THAT IT IS NOT LIABLE TO BE ASSESSED UNDER THE IT ACT AGAINST THE ASSESSEE. AGAINST SUCH DETERMINATION VIDE LETTER DATED 3 RD NOVEMBER, 2010, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A ), VIDE ORDER DATED 31 ST AUGUST, 2011, HELD THAT THE APPEALS ARE NOT MAINTA INABLE. AGAINST SUCH ORDER OF CIT(A), THE ASSESSEE IS IN APPEAL ON THE GROUNDS AS REPRODUCED ABOVE IN PARAGRAPH NO.2. 4. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTE D BY THE LEARNED COUNSEL THAT UNDER SECTION 246(1)(A) WHERE AN ASSES SEE DENIES HIS LIABILITY TO BE ASSESSED UNDER THE IT ACT, HE CAN F ILE APPEAL AGAINST ANY ORDER WHERE SUCH ISSUE IS DECIDED AGAINST THE ASSES SEE. THAT THE ISSUE OF ASSESSEES LIABILITY TO BE ASSESSED UNDER THE IT ACT WAS DECIDED BY THE ASSESSING OFFICER VIDE LETTER DATED 3 RD NOVEMBER, 2010. THEREFORE, THE ASSESSEE RIGHTLY FILED THE APPEAL AGAINST THE O RDER OF THE ASSESSING OFFICER VIDE LETTER DATED 3 RD NOVEMBER, 2010 BEFORE THE LEARNED CIT(A) AND HE OUGHT TO HAVE ADMITTED THE SAME. IN SUPPORT OF THIS CONTENTION, HE RELIED UPON THE FOLLOWING DECISIONS: - (I) CIT VS. INDIRA BALAKRISHNA (1960) 39 ITR 546(SC). (II) CIT VS. KANPUR COAL SYNDICATE (1964) 53 ITR 225 ( SC). (III) SMT.BHAGWANT KOUR VS. CIT (1997) 223 ITR 242 (P&H ). (IV) NEPAL CHANDRA BANERJI VS. COMMERCIAL TAXES OFFICER AND ORS. (1977) 40 STC 23 (CAL.). (V) JASWANT SUGAR MILLS LTD., MEERUT VS. LAKSHMICHAND A ND ORS. (1963) AIR 677 (SC). (VI) STATE OF ANDHRA VS. BELLAMKONDA VENKATA SUBBAIAH & ANOTHER (1957) 8 STC 309 (AP). (VII) BACHITTAR SINGH VS. THE STATE OF PUNJAB (1963) AI R 395 (SC). ITA NOS.5113 TO 5123/DEL/2011 4 (VIII) GEETA INDUS. LTD. VS. C.C.T. & ANR.(ORDER) (1996) 100 STC 48 ORISSA. (IX) DIVISIONAL FOREST OFFICER, ELURU VS. DISTRICT JUDGE (2002) AIR 224 (AP). (X) COMM. OF C.EX. MUMBAI VS. RADHABALLABH SILK MILLS PVT.LTD. 2004 (169) E.L.T. 165 (MUM). (XI) IOL LTD. VS. COLLECTOR OF CUSTOMS 1992 (59) E.L.T . 477 (S.B.). (XII) FAIRDEAL MOTORS VS. CIT (1975) 101 ITR 687 (J&K). (XIII) SATYADHYAN GHOSHAL AND OTHERS VS. SM. DEORAJIN DEBI AND ANOTHER 1960 AIR 941 (SC). (XIV) SUGA RAM @ CHHUGA RAM VS. STATE OF RAJASTHAN & ORS. (2006) 8 SCC 64 (SC). (XV) SANT LAL GUPTA & OTHERS VS. MODERN COOP. G.H.SOCIET Y LTD. (2010) 13 SCC 336 (SC). (XVI) RAVI YASHWANT BHOIR VS. DISTRICT COLLECTOR, RAIGAD & ORS. AIR (2012) 1339 SC 1350 TO 1351. 5. ON THE OTHER HAND, THE LEARNED DR STATED THAT TH E LETTER WRITTEN BY THE ASSESSING OFFICER ON 3 RD NOVEMBER, 2010 WAS ONLY A LETTER WRITTEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS . HOWEVER, THE INCOME OF THE ASSESSEE IS ASSESSED VIDE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2010, THEREFORE, IF THE ASSESSEE IS AGGRI EVED, HE OUGHT TO HAVE FILED THE APPEAL AGAINST THE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2010 AND NOT AGAINST ANY LETTER WRITTEN D URING THE COURSE OF ASSESSMENT PROCEEDINGS. DURING THE ASSESSMENT P ROCEEDINGS, THE ASSESSEE HAS OBJECTED THE ASSESSMENT PROCEEDINGS IT SELF, THEREFORE, VIDE THIS LETTER DATED 3 RD NOVEMBER, 2010, THE ASSESSING OFFICER HAS DIRECTED THE ASSESSEE TO FURNISH THE NECESSARY DETA ILS SO THAT THE ASSESSMENT PROCEEDINGS COULD BE FINALIZED. WHEN A QUERY WAS RAISED TO THE ASSESSEES COUNSEL, HE STATED THAT HE HAS AL SO FILED THE APPEAL AGAINST THE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2010. HOWEVER, ITA NOS.5113 TO 5123/DEL/2011 5 HE STATED THAT HAD HE NOT FILED AN APPEAL AGAINST T HE LETTER DATED 3 RD NOVEMBER, 2010, THE REVENUE COULD HAVE CLAIMED BEFO RE THE APPELLATE AUTHORITIES THAT THE ISSUE WHETHER THE ASSESSEE IS LIABLE FOR ASSESSMENT PROCEEDINGS OR NOT WAS DETERMINED VIDE LETTER DATED 3 RD NOVEMBER, 2010 WHICH HAS BEEN ACCEPTED BY THE ASSESSEE. THER EFORE, THE ASSESSEE WOULD HAVE BEEN PRECLUDED FROM ARGUING IN THE APPEAL AGAINST THE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2010 THAT IT IS NOT LIABLE TO BE ASSESSED UNDER THE INCOME-TAX ACT. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE IMP UGNED APPEALS BEFORE US ARE AGAINST THE ORDER OF LEARNED CIT(A) D ATED 31 ST AUGUST, 2011. THE BRIEF ORDER OF THE CIT(A) READS AS UNDER :- SIR, SUB : YOUR REQUEST TO FILE APPEAL FOR ASSESSMENT YEARS 1979-80, 1980-81, 1981-82, 1982-83, 1986-87, 1988-89, 1989-90, 1990-91, 1991-92 AND 1992-93 REG. REF : YOUR REPLY FILED VIDE LETTER DATED 24.1.201 1 FOR ASSESSMENT YEARS 1979-80, 1980-81, 1981-82, 1982- 83, 1986-87,1988-89, 1989-90, 1990-91, 1991-92 AND 1992-93. PLEASE REFER TO ABOVE. 2. I HAVE GONE THROUGH YOUR REPLY AND IN MY CONSIDE RED OPINION YOUR APPEALS ARE NOT MAINTAINABLE FOR ASSES SMENT YEARS 1979-80, 1980-81, 1981-82, 1982-83, 1983-84, 1986-87, 1988-89, 1989-90, 1990-91, 1991-92 AND 199 2- 93 FILED WITH FORM NO.35 DATED 3.12.2010 BECAUSE IT IS NOT ITA NOS.5113 TO 5123/DEL/2011 6 AN ORDER AS PER PROVISIONS OF SEC. 246 SUB-SECTION (A) TO (I). THIS IS FOR YOUR INFORMATION. 7. FROM THE ABOVE, IT IS EVIDENT THAT IN THE LETTER OR ORDER DATED 31 ST AUGUST, 2011, THE CIT(A) HAS ONLY STATED THAT THE A PPEALS FILED BY THE ASSESSEE ARE NOT MAINTAINABLE BECAUSE THE LETTER DA TED 3 RD DECEMBER, 2010 IS NOT AN ORDER WITHIN THE MEANING OF SECTION 246A(1). THE ASSESSEE FILED THE APPEALS AGAINST THE ABOVE ORDER OF LEARNED CIT(A) BEFORE US IN WHICH THE GROUNDS RAISED BY THE ASSESS EE HAVE ALREADY BEEN REPRODUCED IN PARAGRAPH NO.2 OF THIS ORDER. F ROM THOSE GROUNDS, IT WOULD BE EVIDENT THAT THE ASSESSEE HAS CHALLENGE D THE FINDING OF THE ASSESSING OFFICER BEFORE US AND NOT THE ORDER OF TH E CIT(A). THE APPEAL BEFORE THE ITAT ARISES AGAINST THE ORDER OF THE CIT (A) AND NOT AGAINST THE ORDER OF THE ASSESSING OFFICER UNLESS IT HAS BE EN SPECIFICALLY PROVIDED UNDER THE INCOME-TAX ACT. THE GROUNDS RAI SED BY THE ASSESSEE ARE NOT ARISING FROM THE ORDER OF THE CIT( A) AND AT THE TIME OF HEARING BEFORE US, THE LIMITED ARGUMENT OF THE LEAR NED COUNSEL WAS THAT THE APPEAL WAS MAINTAINABLE BEFORE THE CIT(A). HOWEVER, THERE IS NO SUCH GROUND IN THE APPEALS FILED BY THE ASSESSEE THAT THE CIT(A) COMMITTED ANY ERROR IN NOT ADMITTING THE APPEALS. THEREFORE, TECHNICALLY, THE ASSESSEES APPEALS ARE NOT MAINTAI NABLE BECAUSE THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE NOT AR ISING OUT OF THE ORDER OF THE CIT(A). 8. HOWEVER, SINCE THE MATTER IS AN OLD ONE AND IT I S THE SECOND ROUND OF LITIGATION, WE SHALL DEAL WITH THE ASSESSE ES ARGUMENT WHETHER THE APPEAL AGAINST THE LETTER OF THE ASSESSING OFFI CER DATED 3 RD NOVEMBER, 2010 WAS MAINTAINABLE BEFORE THE CIT(A). AS WE HAVE ALREADY MENTIONED THAT IN THE FIRST ROUND OF APPEAL , THE TRIBUNAL, VIDE ORDER DATED 30 TH NOVEMBER, 2009 IN ITA NO.3212/DEL/2005 & OTHERS, SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING O FFICER WITH THE FOLLOWING FINDING:- ITA NOS.5113 TO 5123/DEL/2011 7 5. IT IS FURTHER NOTICED THAT THE BASIS FOR ESTIMA TING THE INCOME OF THE ASSESSEE FOR EACH OF THE YEARS IS ALS O NOT EMANATING FROM THE ORDERS OF THE ASSESSING AUTHORIT Y OR THE CIT(A). IN THESE CIRCUMSTANCES, WE ARE INCLINE D TO SET ASIDE THE PRESENT ASSESSMENT IN THESE APPEALS ALSO AND WE DO SO. IN THESE CIRCUMSTANCES, THE ASSESSMENT ORDE R AND THE ORDER OF THE CIT(A) AS CHALLENGED IN THESE APPE ALS ARE SET ASIDE FOR FRESH ADJUDICATION DE NOVO. THE ASSE SSEE SHALL COOPERATE IN THE SET ASIDE ASSESSMENT PROCEED INGS. IF THE ASSESSEE DOES NOT COOPERATE IN THE SET ASIDE ASSESSMENT PROCEEDINGS, THE A.O. SHALL BE AT LIBERT Y TO DRAW ADVERSE INFERENCE AGAINST THE ASSESSEE. WHILE COMPLETING THE SET ASIDE PROCEEDINGS, THE A.O. SHAL L ALSO CONSIDER THE ISSUE WHETHER THE ASSESSEE FALLS WITHI N THE DEFINITION OF A PERSON AS PROVIDED IN SECTION 2(3 1) OF THE ACT FOR THE RELEVANT ASSESSMENT YEARS. FURTHER, TH E A.O. SHALL ALSO CONSIDER THE DIRECTIONS AS GIVEN IN THE ORDER OF THIS TRIBUNAL IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 1994-95 AND 1995-96 IN I.T.A.NOS.18 39 & 1840/DEL/2005 DATED 15.01.2007 ALSO APPLY FOR THESE DE NOVO ASSESSMENTS. 6. FURTHER AS IT IS NOTICED THAT THERE IS AN INTERN AL DISPUTE IN THE SOCIETY IN SO FAR AS TWO GROUPS ARE CLAIMING CONTROL OVER THE SOCIETY AND AS IT IS NOTICED THAT NEITHER OF THE GROUPS HAVE BEEN ABLE TO SUCCESSFULLY ESTABLISH THEIR CONTROL OVER THE SOCIETY AND AS IT IS ALSO NOTICED THAT THE MEMBERS OF BOTH THE GROUPS ARE MEMBERS OF THE SOCIE TY, CONSIDERING THE FACT THAT THE A.O. WOULD FIND IT DI FFICULT IN RESPECT OF ISSUING OF THE NOTICE TO ANY SPECIFIC PE RSON IN THE SOCIETY, ACCEDING TO THE REQUEST OF THE LD.DR AND L D. A.RS, ITA NOS.5113 TO 5123/DEL/2011 8 THE FIRST DATE OF HEARING BEFORE THE A.O. IS BEING FIXED 13 TH JANUARY 2010 ON WHICH DATE ALL SUCH PERSONS WHO WIS H TO REPRESENT THE ASSESSEE SOCIETY M/S APARNA ASHRAM FR OM OUT OF THE MEMBERS OF THE ASSESSEE SOCIETY SHALL MA KE REPRESENTATION BEFORE THE A.O. THE A.O. SHALL AFTE R CONSIDERING THE SUBMISSIONS AND THE REPRESENTATIONS OF THE MEMBERS OF THE ASSESSEE SOCIETY REPRESENTED BEFORE HIM PROCEEDED WITH DE NOVO ASSESSMENT IN ACCORDANCE WIT H LAW. IN THESE CIRCUMSTANCES, THE APPEALS OF THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. THE ASSESSING OFFICER REINITIATED THE ASSESSMENT PROCEEDINGS FOR GIVING EFFECT TO THE ORDER OF THE ITAT. DURING SUC H ASSESSMENT PROCEEDINGS, THE ASSESSEE RAISED OBJECTION AGAINST THE ASSESSMENT PROCEEDINGS ITSELF AND CLAIMED THAT IT IS NOT LIABL E TO BE ASSESSED UNDER THE INCOME-TAX ACT. THE ASSESSING OFFICER, VIDE LE TTER DATED 3 RD NOVEMBER, 2010, HELD THAT THE ASSESSEES CLAIM THAT THE SOCIETY IS BEYOND THE AMBIT OF INCOME-TAX ACT AND IS NOT AN AS SESSABLE ENTITY AS IT IS NOT COVERED BY THE DEFINITION OF PERSON AS GI VEN IN SECTION 2(31) OF THE INCOME-TAX ACT IS NOT CORRECT AND THEN, HE DIRE CTED THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNT AND OTHER DOCUMENTS ETC. THE RELEVANT OBSERVATION OF THE ASSESSING OFFICER AT PAGES 6 TO 8 READS AS UNDER:- 4.2 IT MAY ALSO BE NOTICED THAT YOU HAVE NOT FILED THE RETURNS OF INCOME FOR AY 1980-81, 1981-82, 1982-83, 1983- 84, 1984-85, 1986-87, 1988-89 AND 1993-94; AND EARL IER ASSESSMENTS FOR THESE YEARS WERE ACCORDINGLY FRAMED ON THE BASIS OF INFORMATION AVAILABLE ON RECORD INCLUD ING ASSESSMENT RECORDS FOR EARLIER YEARS. SO IN TERMS OF PROVISIONS OF SUB SECTION (1) OF SECTION 142 OF THE INCOME TAX ACT, 1961, I REQUIRE YOU TO FILE THE RETURN(S) FOR THE ITA NOS.5113 TO 5123/DEL/2011 9 YEAR(S) UNDER CONSIDERATION WITHIN A PERIOD OF 15 D AYS OF RECEIPT OF THIS LETTER. NOTICES U/S 142(1) FOR THE PURPOSE IS/ARE ENCLOSED. 4.3 IN VIEW OF THE ABOVE, YOUR CONTENTION THAT THE NOTICES ISSUED U/S 142(1) REQUIRING TO PRODUCE COMPLETE BOO KS OF ACCOUNT AND BANK ACCOUNTS AND U/S 143(2) WHEREVER RETURNS OF INCOME HAVE BEEN FILED, IS WITHOUT JURIS DICTION IS NOT COVERED AND YOUR REQUEST FOR DROPPING THE PROCE EDINGS IS NOT ACCEDED TO AND YOU ARE REQUIRED TO PRODUCE T HE DETAILS AS ASKED FOR ON THE NEXT DATE OF HEARING. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ON BEING ASKED TO PRODUCE BOOKS OF ACCOUNT AND OTHER DOCUMENTS PERTAINING TO THE YEAR(S) UNDER CONSIDERA TION, ON 28.01.2010 IT WAS STATED BY YOU THAT THE BOOKS O F ACCOUNT AND OTHER RELATED DOCUMENTS WERE SEIZED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE AND BY THE JA MMU AND KASHMIR GOVT. AND BECAUSE OF THE SEIZURE, NO RE TURNS COULD BE FILED. ON THIS DATE YOU WERE REQUESTED TO SUPPLY COPIES OF SEIZURE MEMOS SO THAT A REQUEST MAY BE MA DE FOR SUPPLY OF COPIES OF SEIZED BOOKS OF ACCOUNT OR INSPECTION MAY BE MADE SO THAT A PROPER ASSESSMENT COULD BE MADE. THESE COPIES WERE REQUIRED TO BE SU PPLIED ON 03.03.2010. ON THIS DATE YOU WERE AGAIN REMINDE D TO FURNISH THE SEIZURE MEMOS. ON 10.03.2010 VIDE YOUR LETTER DATED 10.03.2010 YOU INFORMED THAT AFTER THE DEATH OF SWAMI DHIRENDRA BRAHYMACHARI THE GOVT. OF JAMMU AND KASHMIR OUSTED THE ASSESSEE FROM THE POSSESSION OF THE PROPERTY ON 10.06.1994. ON 12.08.1994 THE DIVISION AL COMMISSIONER JAMMU HAD APPOINTED NODAL OFFICER IN RESPECT OF ALL THE PROPERTIES OF THE ASSESSEE SOCIE TY AND ITA NOS.5113 TO 5123/DEL/2011 10 YOU GAVE THE ADDRESS OF THE NODAL OFFICER. YOU ALS O FILED A COPY OF LETTER DATED 28.09.1995 SUBMITTED BEFORE TH E DDIT(EXEMP), NEW DELHI IN THIS REGARD. YOU ALSO FI LED A COPY OF THE ORDER IN PROBATE CASE NO.46/1994 FOR RE FERENCE TO FACILITATE TO KNOW THE RELEVANT AUTHORITY UNDER WHOM THE DOCUMENTS WERE LYING. IN RESPECT OF BOOKS OF ACCOUNT/DOCUMENTS ETC. WITH THE NODAL OFFICER, JAMM U, A LETTER WAS WRITTEN TO HIM TO SUPPLY COPIES OF THE S EIZED RECORDS. VIDE HIS LETTER DATED 25.08.2010 HE INFOR MED THAT THE RELEVANT RECORDS/DOCUMENTS IN RESPECT OF ALL TH E PROPERTIES HELD BY VARIOUS TRUSTS/SOCIETIES ESTABLI SHED BY LATE DHIRENDRA BRAHAMCHARI IN THE STATE OF J&K STAN DS SUBMITTED TO THE GOVT./ADDL. ADVOCATE GENERAL OF HO NBLE HIGH COURT, J&K. ACCORDINGLY, A LETTER WAS WRITTEN TO THE ADDL. ADVOCATE GENERAL, HONBLE HIGH COURT OF J&K A T JAMMU TO SUPPLY COPIES OF RELEVANT BOOKS OF ACCOUNT/DOCUMENTS. VIDE HIS LETTER DATED 21.10.201 0 SH. A.H. QAZI, ADDL. ADVOCATE GENERAL, JAMMU HAS INFORM ED THAT THE SEIZED BOOKS OF ACCOUNT AND OTHER DOCUMENT S IN CASES OF APARNA ASHRAM ARE NOT LYING WITH HIS RECOR D KEEPER AND HE IS DEALING ONLY WITH OWP NO.272/06 TI TLED LAXMAN CHAUDHARY VS. STATE AND OTHERS IN THE HONBL E HIGH COURT AT JAMMU IN WHICH THE PETITIONER HAS PRA YED FOR DIRECTION TO STATE OF JAMMU & KASHMIR TO DELIVER BA CK AND HANDOVER THE PROPERTY/BUILDING FALLING UNDER KHASRA NO.78 SECTOR A. BLOCK D EXTENSION AREA GANDHI NAGAR, JAM MU. UNDER THE CIRCUMSTANCES YOUR CONTENTION THAT THE DOCUMENTS/RECORDS ARE LYING IN THE CUSTODY OF THE N ODAL OFFICER IS FOUND TO BE NOT CORRECT. IN RESPECT OF SEIZURE MADE AT VISHVAYATAN YOGASHRAM, NEW DELHI, YOU HAVE ONLY FILED A COPY OF THE ORDER DATED 04.04.1995 PASSED B Y THE HONBLE HIGH COURT OF DELHI WHEREBY THE HONBLE COU RT HAD ITA NOS.5113 TO 5123/DEL/2011 11 ORDERED APPOINTMENT OF RECEIVER AND PREPARATION OF THE INVENTORIES OF THE DOCUMENTS, ETC. LYING AT VISHVAY ATAN YOGASHRAM, NEW DELHI. YOU HAVE ONLY FILED A COPY O F THE JUDGMENT DATED 04.04.1995 BUT HAVE NOT FILED A COPY OF THE SEIZURE MEMO OR THE INVENTORIES TAKEN BY THE RE CEIVER. UNDER THESE CIRCUMSTANCES, THIS OFFICE IS NOT IN A POSITION TO LOCATE THE PARTICULAR AUTHORITY UNDER WHOSE CUST ODY THE DOCUMENTS/RECORDS ARE LYING AND THEREFORE, AND NOT IN A POSITION TO WRITE TO HIM FOR SUPPLY OF THESE DOCUMENTS/RECORDS. IT IS ALSO MENTIONED IN THE LETTER DATED 29.09.199 5 ADDRESSED TO THE THEN DDIT(EXEMP), NEW DELHI THAT T HE RECORDS LYING AT A-50, FRIENDS COLONY, NEW DELHI AR E IN THE CUSTODY OF A RECEIVER APPOINTED BY THE DISTRICT JUD GE, MUZAFFAR NAGAR U.P. THE DISTRICT JUDGE HAS BEEN APPROACHED IN THIS REGARD BUT HE HAS NOT YET RESPON DED TO PROVIDE THE COPIES OF THE DOCUMENTS/RECORDS. UNDER THESE CIRCUMSTANCES, THIS OFFICE IS NOT IN A POSITION TO LOCATE THE PARTICULAR AUTHORITY UNDER WHOSE CUSTODY THE DOCUMENTS/RECORDS ARE LYING AND THEREFORE, AND NOT IN A POSITION TO WRITE TO HIM FOR SUPPLY OF THESE DOCUMENTS/RECORDS. PLEASE NOTE THAT IT IS THE GENERAL PRACTICE RATHE R A PROCEDURAL REQUIREMENT THAT WHENEVER AN AUTHORITY M AKES SEIZURE OF CERTAIN BOOKS OF ACCOUNTS, DOCUMENTS, ET C., A SEIZURE MEMO OR A PANCHNAMA IN DRAWN ALONGWITH AN INVENTORY OF THE SEIZED BOOKS OF ACCOUNTS/DOCUMENTS AND A COPY OF THE SAME IS MANDATORILY GIVEN TO THE PERSON (S) FROM WHOSE PREMISES/CUSTODY THE SEIZURE IS MADE. I T MAY BE MENTIONED THAT SUCH COPY OF THE SEIZURE ITA NOS.5113 TO 5123/DEL/2011 12 MEMO/PANCHNAMA AND INVENTORY OF BOOKS OF ACCOUNT/DOCUMENTS, IN RESPECT OF THE SEIZURES MADE IN YOUR CASE BY VARIOUS AUTHORITIES MUST BE AVAILABLE WITH YOU BUT IT APPEARS THAT THE SAME IS BEING WITH HELD BY YOU FOR THE REASONS BEST KNOWN TO YOU. IN VIEW OF THE ABOVE, YOU ARE ONCE AGAIN REQUESTED TO PLEASE PRODUCE THE RELEVANT BOOKS OF ACCOUNT, DOCUMENTS AND OTHER RECORDS SO THAT A PROPER ASSESS MENT MAY BE MADE. PLEASE NOTE THAT FOR FAILURE TO THE R ELEVANT RECORD, THIS OFFICE WILL BE LEFT WITH NO OTHER ALTE RNATIVE THAN TO COMPLETE THE ASSESSMENT(S) ON THE BASIS OF MATER IAL AVAILABLE ON RECORD AND PAST HISTORY OF THE CASE. NOTICES U/S 143(2) AND 142(1) ARE ENCLOSED FOR COMPLIANCE O N 23.11.2010. 10. FROM THE ABOVE, IT IS EVIDENT THAT THE ABOVE LE TTER WAS PART OF THE PROCESS OF THE ASSESSMENT PROCEEDINGS. THE ASS ESSEES INCOME WAS ASSESSED VIDE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2010 WHEREBY THE LIABILITY OF TAX PAYABLE BY THE ASSESSE E WAS DETERMINED. THEREFORE, THE APPELLATE ORDER IS THE ASSESSMENT OR DER DATED 31 ST DECEMBER, 2010 AND NOT THE LETTER DATED 3 RD NOVEMBER, 2010. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE MAY RAISE VARIOUS CLAIMS AND THE ASSESSING OFFICER MAY WRITE A LETTER ACCEPT ING OR REJECTING THOSE CLAIMS BUT IT IS NOT THAT EVERY LETTER WRITTE N BY THE ASSESSING OFFICER TO THE ASSESSEE DURING ASSESSMENT PROCEEDIN GS IS AN APPEALABLE ORDER. THE INCOME OF THE ASSESSEE WAS D ETERMINED VIDE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2010 AND THEREAFTER, ONLY THE DEMAND NOTICE AND CHALLAN WERE ISSUED. THEREFORE, IN OUR OPINION, THE APPELLATE ORDER IS THE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2010 ITA NOS.5113 TO 5123/DEL/2011 13 AND, IN FACT, THE ASSESSEE HAS FILED APPEAL AGAINST SUCH ASSESSMENT ORDER WHICH IS PENDING BEFORE THE CIT(A). 11. WE MAY ALSO MENTION THAT THE ASSESSEES APPREHE NSION, THAT IF IT HAD NOT FILED THE APPEAL AGAINST LETTER DATED 3 RD NOVEMBER, 2010 IT WOULD BE PRESUMED THAT THE ASSESSEE IS LIABLE TO IN COME-TAX ACT, IS MISPLACED AND WE CLARIFY THAT IN ITS APPEAL AGAINST THE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2010, IF SO ADVISED, THE ASSESSEE MAY ST ILL DENY ITS LIABILITY TO BE ASSESSED UNDER THE INCOME- TAX ACT AND IF SO DENIED, THEN THE APPELLATE AUTHORITY WOULD DECIDE T HE SAME ON MERITS. WITH THESE OBSERVATIONS, WE REITERATE THAT THE LEAR NED CIT(A) WAS JUSTIFIED IN HOLDING THAT THE APPEALS OF THE ASSESS EE AGAINST THE LETTER DATED 3 RD NOVEMBER, 2010 WERE NOT MAINTAINABLE. BEFORE WE PA RT WITH THE MATTER, WE MAY MENTION THAT THE ASSESSEE HAS RE LIED UPON VARIOUS DECISIONS. HOWEVER, THE FACTS IN ALL THE CASES REL IED UPON BY THE LEARNED COUNSEL ARE ALTOGETHER DIFFERENT, THEREFORE , THOSE DECISIONS ARE NOT APPLICABLE IN THE CASE OF THE ASSESSEE. WE, TH EREFORE, UPHOLD THE ORDER OF THE LEARNED CIT(A) AND DISMISS ALL THESE A PPEALS FILED BY THE ASSESSEE. 12. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 12 TH OCTOBER, 2012. SD/- SD/- ( (( (A.D A.DA.D A.D.JAIN .JAIN .JAIN .JAIN) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 12.10.2012 VK. ITA NOS.5113 TO 5123/DEL/2011 14 COPY FORWARDED TO: - 1. APPELLANT : APARNA ASHRAM, APARNA ASHRAM, APARNA ASHRAM, APARNA ASHRAM, A AA A- -- -50, FRIENDS COLONY (EAST), 50, FRIENDS COLONY (EAST), 50, FRIENDS COLONY (EAST), 50, FRIENDS COLONY (EAST), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 2. RESPONDENT : DEPUTY DIRECTOR OF INCOME TAX (E), DEPUTY DIRECTOR OF INCOME TAX (E), DEPUTY DIRECTOR OF INCOME TAX (E), DEPUTY DIRECTOR OF INCOME TAX (E), INVESTIGATION CIRCLE INVESTIGATION CIRCLE INVESTIGATION CIRCLE INVESTIGATION CIRCLE- -- -I, I,I, I, AAYKA AAYKA AAYKA AAYKAR BHAWAN, DISTT. CENTRE, R BHAWAN, DISTT. CENTRE, R BHAWAN, DISTT. CENTRE, R BHAWAN, DISTT. CENTRE, LAXMI NAGAR, NEW DELHI. LAXMI NAGAR, NEW DELHI. LAXMI NAGAR, NEW DELHI. LAXMI NAGAR, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR