Ashok Kumar Gupta, New Delhi V. ITO, Ward- 39(1), New Delhi

ITA 5236/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5677 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: PARMOD KUMAR JAIN
• Keywords: Opportunity of being heard; Non compliance; Reassessment proceedings
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER ITA NO.5236/DEL/2018 ASSESSMENT YEAR: 2009-10 SHRI ASHOK KUMAR GUPTA, PROP. M/.S. POOJA HOME APPLIANCES, 471, NEELKANTH APARTMENTS, SECTOR-13, ROHINI, DELHI-110085 PAN NO. AIGPG7703G VS INCOME TAX OFFICER WARD 39 (1) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. PARMOD KUMAR JAIN, CA RESPONDENT BY SHRI S. L. ANURAGI, SR. DR DATE OF HEARING: 05/08/2019 DATE OF PRONOUNCEMENT: 08/08/2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 08.05.2018 OF THE CIT(A)-13, NEW DELHI RELATING TO A. Y. 2009-10. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 30.03. 2009 DECLARING TOTAL INCOME OF RS.2,66,893/-. ON THE BAS IS OF INFORMATION RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT THAT CASH AMOUNTING TO RS.2,30,96,884/- WAS DEPOSITED IN THE BANK ACCOUNT OF M/S. POOJA HOME AP PLIANCES, PAGE | 2 THE PROPRIETARY CONCERN OF THE ASSESSEE, THE CASE O F THE ASSESSEE WAS REOPENED AS PER PROVISIONS OF SECTION 147 OF TH E ACT AND NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 29.03.2016 . THEREAFTER THE NOTICE U/S. 142 (1) OF THE ACT WAS I SSUED DIRECTING THE ASSESSEE TO FILE COPY OF THE RETURN OF THE INCO ME, PROFIT AND LOSS ACCOUNT, BALANCE SHEET, TAX AUDIT REPORT AND S TATEMENT OF AFFAIRS. HOWEVER, THERE WAS NO COMPLIANCE FOR WHICH ANOTHER LETTER WAS ISSUED. THERE WAS ALSO NO PROPER COMPLIA NCE FROM THE SIDE OF THE ASSESSEE. THE ASSESSING OFFICER, THEREA FTER, COMPLETED THE ASSESSMENT U/S. 147/144 OF THE IT ACT DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 16,51,910/- WHEREIN THE ASSESSING OFFICER MADE ADDITION OF RS.1 3,85,813/- BEING INCOME FROM UNEXPLAINED SOURCE. 3. BEFORE CIT(A) THE ASSESSEE APART FROM CHALLENGIN G THE ADDITION ON MERIT, CHALLENGED THE VALIDITY OF REASS ESSMENT PROCEEDINGS. HOWEVER, THE LD. CIT(A) WAS NOT SATIS FIED WITH THE ARGUMENTS ADVANCED BY THE ASSESSEE AND UPHELD THE V ALIDITY OF REASSESSMENT PROCEEDINGS. SO FAR AS THE MERIT OF TH E CASE IS CONCERNED HE ALSO UPHELD THE ACTION OF THE ASSESSIN G OFFICER. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS OF APPEAL :- 1. THE APPELLANT IS AN INDIVIDUAL, HAVING BUSINESS INC OME AMOUNTING RS. 2,66,093/- IN FY 2008-09 RELEVANT TO A.Y. 2009- 10. 2. AS INFORMED TO THE APPELLANT HIS CASE WAS REOPENED U/S 147/148. 3. NOTICE U/S 148 WAS NEVER SERVED TO THE ASSESSEE. PAGE | 3 4. THE LD. AO DID NOT PROVIDE THE REASONS RECORDED FO R REOPENING THE CASE OF THE APPELLANT. 5. THAT LD. AO DID NOT ISSUE NOTICE U/S 143(2). 6. THAT LD. AO PASSED ORDER U/S 147 R.W.S. 144 AFTER MAKING ADDITION OF RS. 13,85,813/- ON ACCOUNT OF UNEXPLAINED SOURCE S OF INCOME WITHOUT EVEN MENTIONING THE SECTION UNDER WHICH ADDITION WA S MADE . 7. THE RETURN OF THE APPELLANT WAS ASSESSED U/S 147/1 44 VIDE ORDER DATED 31.12.2016 AND DEMAND OF RS. 8,03,810/- WAS R AISED. 8. THE LD. AO ALSO INITIATED THE PENALTY PROCEEDINGS U/S 271(L)(C). 9. AGGRIEVED BY THE ACTION OF LD. AO OF MAKING ADDITI ON ON ACCOUNT OF UNEXPLAINED DEPOSITS, THIS APPEAL HAS BEEN PREFE RRED TO GET JUSTICE. 5. THE ASSESSEE HAS ALSO RAISED THE FOLLOWING ADDIT IONAL GROUNDS OF APPEAL :- 1. THAT THE LD. CIT(A) ERRED IN CONSIDERING THE FACT THAT THE LD. AO HAS PASSED AN ORDER U/S 144/147 WITHOUT ISSUING AN NOTICE U/S. 143 (2). 6. AFTER HEARING BOTH THE SIDES THE ADDITIONAL GROU ND RAISED BY THE ASSESSEE IS ADMITTED FOR ADJUDICATION. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS NEVER RECEIVED ANY NOTICE U/S. 148 OF THE IT ACT SINCE THE SAME WAS NEITHER ISSUED NOR SERVED UPON T HE ASSESSEE AND, THEREFORE, THE REASSESSMENT PROCEEDINGS U/S. 1 48 OF THE IT ACT ARE NOT VALID. FURTHER NO NOTICE U/S. 143 (2) H AS BEEN ISSUED/ SERVED ON THE ASSESSEE DURING THE ASSESSMEN T PROCEEDINGS U/S. 147 OF THE IT ACT. FURTHER THE CO PY OF THE REASONS RECORDED WAS NOT PROVIDED BY THE ASSESSING OFFICER TO THE ASSESSEE WHICH ARE MANDATORY. RELYING ON VARIOU S DECISIONS THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NON SERVICE OF PAGE | 4 NOTICE U/S. 143 (2) MAKES THE ASSESSMENT PROCEEDING S INVALID. SIMILARLY NON SERVICE OF NOTICE U/S. 148 AND NON SE RVICE OF REASONS RECORDED BY THE ASSESSING OFFICER FOR REASS ESSMENT PROCEEDINGS MAKES THE PROCEEDINGS INVALID. REFERRIN G TO THE PARA NO.5.11 OF THE ORDER OF THE CIT(A) HE SUBMITTE D THAT IT WAS BROUGHT TO HIS NOTICE THAT NO NOTICE U/S. 148 OF TH E ACT WAS EVER RECEIVED BY THE ASSESSEE. HE ACCORDINGLY SUBMITTED THAT THE REASSESSMENT PROCEEDINGS SHOULD BE QUASHED. THE LD . COUNSEL FOR THE ASSESSEE, HOWEVER, DID NOT ARGUE THE CASE O N MERIT. 8. THE LD. DR ON THE OTHER HAND STRONGLY SUPPORTED THE ORDER OF THE CIT(A) ON THE ISSUE OF VALIDITY OF REASSESSM ENT PROCEEDINGS. IN HIS ALTERNATE CONTENTION HE SUBMITT ED THAT HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE F ILE OF THE CIT(A) FOR ADJUDICATION OF THE ISSUE AFRESH. 9. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES AND PERUSED THE ORDERS OF THE AO AND CIT(A). I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND THE AO ON THE BASIS OF INFORMATION RECEIVED FROM THE INVES TIGATION WING THAT ASSESSEE HAS MADE HUGE CASH DEPOSITS IN THE BA NK ACCOUNTS REOPENED THE ASSESSMENT U/S. 147 OF THE AC T AND NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 29.03.2016 AS PER THE ASSESSMENT ORDER. I FIND DUE TO NON COMPLIANCE FRO M THE SIDE OF THE ASSESSEE THE ASSESSING OFFICER COMPLETED THE AS SESSMENT U/S. 147/144 DETERMINING THE TOTAL INCOME OF THE AS SESSEE AT RS.16,51,910/- WHICH HAS BEEN UPHELD BY THE CIT(A). THE LD. CIT(A) FURTHER UPHELD THE REASSESSMENT PROCEEDINGS. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE PAGE | 5 ASSESSEE NEITHER RECEIVED THE NOTICE U/S. 148 NOR T HE NOTICE U/S. 143 (2), THEREFORE, THE PROCEEDINGS ARE VOID A B INITIO. IT IS ALSO HIS SUBMISSION THAT THE REASONS RECORDED BY TH E ASSESSING OFFICER FOR REOPENING OF THE ASSESSMENT WAS NEVER S UPPLIED TO THE ASSESSEE BY THE AO. I FIND ALL THESE ISSUES WE RE NOT PROPERLY ADJUDICATED BY THE LD. CIT(A) WHILE ADJUDICATING TH E VALIDITY OF REASSESSMENT PROCEEDINGS. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE I DEEM I T PROPER TO RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) WI TH THE DIRECTION TO DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH L AW AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. HE MAY ALSO CALL FOR A REMAND REPORT FROM THE AO, I F NECESSARY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 08.08.2019. SD/- (R.K PANDA) ACCOUNTANT MEMBER *NEHA* DATE:- 08 .08.2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI PAGE | 6 DATE OF DICTATION 05.08.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05.08.2019 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 05.08.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 05.08.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 05.08.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 08.08.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER