Mrs Harniranjan Kaur, Jalandhar V. The Income-tax Officer, Jalandhar

ITA 522/ASR/2011

• Counselvise Citation: 52220914 RSA 2011
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-02-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 18-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Keywords: Reassessment proceedings
• Section: 148

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. NOS.522 & 523 (ASR)/2011 ASSESSMENT YEARS:2001-02 & 2002-03 PAN :AIDPT9988M MRS. HARNIRANJAN KAUR, VS. THE INCOME TAX OFFICER, JALANDHAR. RANGE III(I), JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.SANDEEP VIJH, CA RESPONDENT BY:SH. R.L.CHHANALIA, DR DATE OF HEARING:30/10/2012 DATE OF PRONOUNCEMENT:31/10/2012 ORDER PER BENCH ; THESE TWO APPEALS OF THE ASSESSEE ARISE FROM TWO D IFFERENT ORDERS OF CIT(A), JALANDHAR, EACH DATED 29.07.2011 FOR THE AS SESSMENT YEARS 2001-02 & 2002-03. 2. IN ITA NO.522(ASR)/2011, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) HAS ERRED IN UPHOLDING AN ORDER WHICH IS BAD IN LAW. ITA NOS. 522 & 523(ASR)/2011 2 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ASSUMPTION OF JUR ISDICTION FOR REASSESSMENT. THE NOTICE ISSUED U/S 148 WAS BAS ED ON INCORRECT/WRONG REASONS AND EVEN THE PROVISIONS OF SECTION 149 HAD BEEN IGNORED AND THUS WERE BAD IN LAW. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.7 8,927/-. THE SUBMISSIONS MADE ON THE ISSUE HAVE NOT BEEN APPRECI ATED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) HAS ERRED IN UPHOLDING THE LEVY OF INTEREST U/S 234. ALSO THERE WAS NO DOCUMENT SERVED ALONGWITH THE ASSESSME NT ORDER WHICH SHOWED LEVY OF INTEREST UNDER ANY SPECIFIC SE CTION. 3. IN ITA NO.523(ASR)/2011, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) HAS ERRED IN UPHOLDING AN ORDER WHICH IS BAD IN LAW. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ASSUMPTION OF JUR ISDICTION FOR REASSESSMENT. THE NOTICE ISSUED U/S 148 WAS BAS ED ON INCORRECT/WRONG REASONS AND EVEN THE PROVISIONS OF SECTION 149 HAD BEEN IGNORED AND THUS WERE BAD IN LAW. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.8 2,347/-. THE SUBMISSIONS MADE ON THE ISSUE HAVE NOT BEEN APPRECI ATED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) HAS ERRED IN UPHOLDING THE LEVY OF INTEREST U/S 234. ALSO THERE WAS NO DOCUMENT SERVED ALONGWITH THE ASSESSME NT ORDER WHICH SHOWED LEVY OF INTEREST UNDER ANY SPECIFIC SE CTION. 4. SINCE THE ISSUES IN BOTH THE APPEALS ARE IDENTIC AL, THEREFORE, BOTH THE APPEALS ARE BEING DECIDED BY THIS CONSOLIDATED ORDE R. FIRST OF ALL, WE TAKE UP ITA NOS. 522 & 523(ASR)/2011 3 APPEAL OF THE ASSESSEE IN ITA NO.522(ASR)/2011 FOR THE ASSESSMENT YEAR 2001-02. 5. THE BRIEF FACTS IN GROUNDS NO. 1 & 2 BEING LEGAL GROUNDS, AS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE, MR. SANDEEP VIJH ARE THAT THE ASSESSEE WAS AN EMPLOYEE DOCTOR AND FILED HER RETURN OF INCOME F OR THE A.Y. 2001-02 ON 31.07.2001, WHICH FACT IS EVIDENT AT PAGE 2 OF THE ASSESSMENT ORDER. COPY OF REASONS RECORDED BY THE AO FOR ISSUING NOTICE U/S 1 48 IS PLACED AT PAGE 6A OF THE PAPER BOOK.. A PERUSAL OF THE REASONS RECORD ED SHOWS THAT INTEREST INCOME WHICH IS ALLEGED TO HAVE ESCAPED ASSESSMENT IS RS.78,927/-. NOTICE U/S 148 HAD BEEN ISSUED ON 26.03.2008 WHICH IS MORE THAN FIVE YEARS AFTER THE END OF THE ASSESSMENT YEAR. THE LD. COUNSEL FOR THE ASSESSEE, MR. SANDEEP VIJH, FURTHER ARGUED THAT AS PER PROVISIONS CONTAINED IN SECTION 149(1)(B), THE NOTICE U/S 148 OF THE ACT CANNOT BE ISSUED FOR THE RELEVANT ASSESSMENT, IF FOUR YEARS BUT NOT MORE THAN SIX YE ARS, HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS TH E INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS L IKELY TO AMOUNT TO RS. 1 LAKH OR MORE FOR THAT YEAR. THE AMOUNT REFERRE D TO IN THE REASONS RECORDED IS LESS THAN THE LIMIT LAID DOWN IN SEC TION 149(1)(B) OF THE ACT. SECONDLY, MR. VIJH ARGUED BY INVITING OUR ATTENT ION TO THE REASONS RECORDED PLACED AT PAGE 6A OF THE PAPER BOOK THAT T HE AO HAS WRONGLY RECORDED THE REASONS THAT THE ASSESSEE HAD N OT FILED RETURN OF INCOME. ITA NOS. 522 & 523(ASR)/2011 4 WHEREAS ALL THE FACTS ON RECORD AVAILABLE BEFORE TH E AO BEFORE RECORDING REASONS WERE TAKEN FROM THE INCOME TAX RETURN ONLY IS NOT A DISPUTED FACT AND THEREFORE, ON THIS ACCOUNT ALSO, THE REASONS RE CORDED ARE ON THE BASIS OF WRONG FACTS AND WITHOUT ANY MATERIAL ON RECORD. THE REFORE, HAVING RECORDED WRONG REASONS AND ALSO CONSIDERING THE MONETARY LIM IT LAID DOWN U/S 149(1)(B), THE NOTICE U/S 148 IS BAD IN LAW AND A CCORDINGLY REASSESSMENT PROCEEDINGS CANNOT SURVIVE. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISIONS OF VARIOUS COURTS OF LAW, AS UNDER: 1) CIT VS. ATLAS CYCLE 180 ITR 319 (P&H) 2) SAGAR ENTERPRISES VS. CIT 257 ITR 335 (P&H) 3) PRASHANT S. JOSHI VS. ITO 324 ITR 154 (BOMBAY) 4) P.V. DOSHI VS. CIT 113 ITR 22 ( GUJARAT) MT. MEE RA ANANTA NAIK ORS VS. DCIT 221 CTR 149 (BOM.) 6. THE LD. DR, MR. R.L. CHHANALIA, ON THE OTHER HAN D, RELIED UPON THE DECISION OF BOTH THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. ON PERUSAL OF REASONS RECORDED AT PAGE 6A OF THE PA PER BOOK, WHICH FOR THE SAKE OF CLARITY ARE REPRODUCED AS UNDER: AS PER INFORMATION RECEIVED FROM ADI (INV.), AMRITS AR, SMT. HARNIRANJAN KAUR, WHO IS RETIRED FROM PUNJAB CIVIL MEDICAL SERVICES IN JANUARY 2002 AS A DOCTOR, HAS BEEN MAINTAINING B ANK ACCOUNT WITH STANDARD CHARTERED BANK, THE MALL, AMRITSAR. FROM T HE PERUSAL OF THE BANK ACCOUNT STATEMENTS FOR THE FINANCIAL YEAR 2000-01 RELEVANT TO THE ASSESSMENT YEAR 2001-02 INTEREST OF RS.78927- W AS CREDITED IN HER SAVING BANK ACCOUNT. SMT. HARNIRANJAN KAUR HAS NOT FILED HERE INCOME TAX RETURN FOR THE ASSESSMENT YEAR 2001-02 A ND HER INCOME ITA NOS. 522 & 523(ASR)/2011 5 INCLUDING SALARY AND INTEREST AS ABOVE EXCEEDED RS. ONE LAC DURING THE PERIOD. I HAVE, THEREFORE, REASONS TO BELIEVE THAT BY REASO NS OF OMISSION OR FAILURE EON THE PART OF THE ASSESSEE TO FILE THE RETURN, HER TAXABLE INCOME WHICH EXCEEDS RS. ONE LAC HAS ESCAPED ASSESS MENT. IT IS, THEREFORE, REQUESTED THAT NECESSARY PERMISSION TO I SSUE NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT 2001 -02 MAY KINDLY BE ACCORDED. 7.1. IN THE SAID REASONS RECORDED, THE AO HAS MENTI ONED THAT THE ASSESSEE HAS NOT FILED HER INCOME TAX RETURN. WHEREAS IT IS NOT DISPUTED THAT THE ASSESSEE HAD FILED RETURN OF INCOME ON 31.07.2001 A ND THE A.O. IN THE COMPUTATIONAL PART HAS MENTIONED BEFORE MAKING THE ADDITION AS UNDER: INCOME ASSESSED ORIGINALLY : RS.2,94,180/- THEREFORE, THE AO HAS NOTED THE WRONG REASONS THAT THE ASSESSEE HAS NOT FILED HERE INCOME TAX RETURN WHEREAS IT WAS ON RECO RD THAT THE ASSESSEE HAD FILED RETURN OF INCOME. 7.2. SECONDLY, ON LIMITATION ISSUE, THE INCOME WHIC H AS PER AO, HAD ESCAPED ASSESSMENT IN THE RELEVANT ASSESSMENT YEAR IS RS.78,927/-. WE HAVE TO LOOK AT SECTION 149(1)(B), WHICH FOR THE SAKE OF CLARITY IS REPRODUCED AS UNDER: SECTION 149 : (1) NO NOTICE UNDER SECTION 148 SHA LL BE ISSUED FOR THE RELEVANT ASSESSMENT YEAR, - (A) IF FOUR YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS THE CASE FALLS UNDER CLAUSE (B) [ OR CLAUSE (C) ] (B) IF FOUR YEARS, BUT NOT MORE THAN SIX YEARS, HAV E ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCO ME ITA NOS. 522 & 523(ASR)/2011 6 CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOU NTS TO OR IS LIKELY TO AMOUNT TO ONE LAKH RUPEES OR MORE FOR THAT YEAR; 7.3. AS PER SECTION 149(1)(B) OF THE ACT, NO NOTICE U/S 148 OF THE ACT CAN BE ISSUED IF FOUR YEARS, BUT NOT MORE THAN SIX YEA RS, HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCO ME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS LIKEL Y TO AMOUNT TO ONE LAKH RUPEES OR MORE FOR THAT YEAR. WHEREAS IN THE PRESEN T CASE, THE INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT IS R S.78,927/- AND NOT RS. 1 LAKH OR MORE FOR THE RELEVANT ASSESSMENT YEAR. THE PRESENT ASSESSMENT YEAR IS 2001-02 AND FOUR YEARS HAD ELAPSED ON 31.03.2006 . THEREFORE, NOTICE HAVING BEEN ISSUED ON 26.03.2008 COMES UNDER THE LI MITATION IN SECTION 149(1)(B) OF THE ACT, WHERE INCOME CHARGEABLE TO TA X , WHICH ESCAPED ASSESSMENT SHOULD BE RS. 1 LAKH OR MORE, WHEREAS IN THE PRESENT CASE IT IS RS.78,927/-. THEREFORE, THE AO HAVE NO JURISDICTION TO ISSUE SUCH NOTICE IN VIEW OF THE PROVISIONS CONTAINED U/S 149(1)(B) OF T HE ACT. THEREFORE, NOTICE SO ISSUED IS BAD IN LAW AND REASSESSMENT PROCEEDING S ARE ACCORDINGLY QUASHED ON THIS ACCOUNT AS WELL AS ON THE BASIS OF NOTING OF THE WRONG REASONS AS MENTIONED HEREINABOVE. WE FIND SUPPORT F ROM THE DECISIONS OF VARIOUS COURTS OF LAW RELIED UPON BY THE LD. COUNSE L FOR THE ASSESSEE, MR. SANDEEP VIJH IN THIS REGARD. THEREFORE, IN THE FACT S AND CIRCUMSTANCES OF THE CASE, WE ALLOW THE LEGAL GROUNDS NO. 1 & 2 OF THE A SSESSEE. ITA NOS. 522 & 523(ASR)/2011 7 7.3. HAVING DECIDED THE LEGAL GROUNDS IN FAVOUR OF THE ASSESSE, WE DO NOT CONSIDER TO DECIDE GROUNDS NO. 3 & 4 ON FACTS OF TH E CASE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED. 8. AS REGARDS ITA NO. 523(ASR)/2011, THE FACTS IN T HE PRESENT CASE ARE IDENTICAL TO THE FACTS IN ASSESSEES APPEAL IN ITA NO.522(ASR)/2011 AS MENTIONED HEREINABOVE, EXCEPT THE AMOUNT OF INTERES T IS RS.82,347/- AND WE DO NOT CONSIDER TO DECIDE GROUNDS NO. 3 & 4 OF THE ASSESSEE ON FACTS. THUS, APPEAL OF THE ASSESSEE IN ITA NO.523(ASR)/2011 IS A LLOWED. 9. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN IT A NOS. 522 & 523(ASR)/2011 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31ST OCTOBER, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31ST OCTOBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:MRS. HARNIRANJAN KAUR, URBAN ESTATE, J ALANDHAR. 2. THE ITO R-III(1), JALANDHAR. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL,