Poonam Garg, New Delhi V. ACIT, Circle-62(1), New Delhi

ITA 5333/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9679 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 11-06-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Assessee Lawyers: SHIR SB GUPTA
• Keywords: Application of stay; Set aside
• Section: 69C; 143(3); 201; 143(2)

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F FRIDAY : NEW DELHI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER SA NO. 803/DEL/2019 (IN ITA NO. 5333/DEL/2019) (ASSESSMENT YEAR: 2014 - 15 ) POONAM GARG, 2027/7, CHUNA MANDI, PAHARGANJ, NEW DELHI PAN: AAGPG2986F VS. ACIT, CIRCLE - 62(1), NEW DELHI (APPELLANT) (RESPONDENT) ITA NO. 5333/DEL/2019 (ASSESSMENT YEAR: 2014 - 15 ) POONAM GARG, 2027/7, CHUNA MANDI, PAHARGANJ, NEW DELHI PAN: AAGPG2986F VS. ACIT, CIRCLE - 62(1), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHIR SB GUPTA, CA REVENUE BY: SMT NAINA SOIN KAPIL, SR. DR DATE OF HEARING 19/07 / 201 9 DATE OF PRONOUNCEMENT 2 5 / 09 / 2019 O R D E R PER PRASHANT MAHARISHI, A. M. 1 . HEARING OF STAY PETITION AS WELL AS THE APPEAL OF THE ASSESSEE WAS FIXED TOGETHER. 2 . ON LOOKING AT THE MERITS OF THE STAY, IT WAS NOTED THAT APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - 42, NEW D ELHI [ THE LD CIT (A)] DATED 23.04.2019 FOR THE ASSESSMENT YEAR 2014 - 15, WHEREIN, THE APPEAL OF THE ASSESSEE FILED AGAINST THE ASSESSMENT ORDER PASSED BY THE LD ACIT, CIRCLE - 62(1), NEW DELHI [ THE LD AO ] FOR THE ASSESSMENT YEAR 2014 - 15 PASSED U/S 143(3) OF THE ACT ON 30.12.2016 BEFORE THE LD CIT (A) IS DISMISSED. THE ASSESSEE HAS RAISED IN ALL 17 GROUNDS OF APPEAL. 3 . THE BRIEF FACTS OF THE CASE SHOWS THAT ASSESSEE IS AN INDIVIDUAL WHO FILED HER RETURN OF INCOME ON 30.07.2014 DECLARING TOTAL INCOME OF RS. 7532950/ - PAGE | 2 . THE LD AO SELECTED THE RETURN OF THE ASSESSEE FOR COMPLETE SCRUTINY WITH ONE OF THE REASON SHOWING SUSPICIOUS TRANSACTIONS RELATING TO LONG TERM CAPITAL GAIN ON SHARES. IT WAS FOUND THAT THE ASSESSEE HAS EARNED THE LONG TERM CAPITAL GAIN OF RS. 130386105/ - IN THE LONG TERM CAPITAL GAIN OF TRINITY TRADE LINK LTD/ SHARP TRADE AND KAPAC PHARMA LTD. THE LD AO FOUND THAT THE CAPITAL GAIN EARNED BY THE ASSESSEE IN BOTH THE SHARES BOGUS AND THEREFORE, PASSED AN ORDER MAKING THE ADDITION OF RS . 136100188 / - ON THE ACCOUNT OF BOGUS LONG TERM CAPITAL GAIN AS WELL AS ALLEGED COMMISSION @3% ON THE SAME. CONSEQUENTLY, ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE ACT BY THE LD AO ON 30.12.2016. 4 . THE ASSESSEE AGGRIEVED WITH THE ORDER PREFERRED AN APPEAL BEFORE T HE LD CIT(A). THE FIRST GROUND THAT WAS RAISED WAS WITH RESPECT TO THE CHALLENGE TO THE NOTICE U/S 143(2) OF THE ACT THAT NO SUCH NOTICE WAS SERVED UPON THE ASSESSEE ON OR BEFORE THE TIME LIMIT STIPULATED IN THE PROVISO TO SECTION 143(2) OF THE ACT AND THE REFORE, THE ASSESSMENT ORDER PASSED BY THE LD AO IS ILLEGAL. THE LD CIT(A) DISPOSED OFF THE ABOVE GROUND VIDE PARA NO. 5 OF HIS ORDER STATING THAT ABOVE GROUND IS GENERAL IN NATURE. ON THE MERITS WHILE DECIDING GROUND NO. 2 TO 12 OF THE APPEAL HE CONFIRMED THE ACTION OF THE LD AO WITH RESPECT TO THE ADDITION OF RS. 132136105/ - U/S 68 OF THE ACT AND RS. 3964083/ - U/S 69C OF THE ACT. 5 . BEFORE US THE ASSESSEE AGGRIEVED WITH THE ORDER HAS PREFERRED AN APPEAL BEFORE US AND ALSO THE STAY PETITION NO. 803/DEL/2019 IN THE ABOVE APPEAL REQUESTING THE STAY OF DEMAND. AT THE TIME OF ARGUMENT OF STAY IT WAS SUBMITTED THAT TOTAL TAX DEMAND OF RS. 6.18 CRORES HAS BEEN RAISED AND OUT OF WHICH THE ASSESSEE HAS PAID RS. 92.75 LAKHS AND REMAINING BALANCE OF RS. 52554690/ - IS PRAYED FOR STAY. IN THE STAY PETITION HE SUBMITTED THAT AS NOTICE U/S 143(2) OF THE ACT HAS BEEN SERVED UPON THE ASSESSEE WHICH IS MANDATORY REQUIREMENT. SUCH GROUNDS HAVE BEEN RAISED BEFORE THE LD CIT( A) WHICH HAS BEEN DISPOSED OFF STATING IT TO BE GENERAL IN NATURE. HE FURTHER REFERRED TO ANNEXURE 15 WHICH IS COPY OF THE LETTER DATED 10.11.2016 ISSUED BY THE LD AO DISPOSING OFF THE ASSESSEE OBJECTS AGAINST NON SERVICE OF THE NOTICE. HE THEREFORE, SUBMI TTED THAT THE ASSESSEE HAS RAISED PROPER OBJECTION BEFORE THE LD AO. HE SUBMITTED THAT AS THE LD CIT(A) HAS NOT PAGE | 3 DECIDED THE GROUNDS WHICH IS JURISDICTIONAL GROUND AND GOES TO THE ROOT OF THE MATTER, THE TRIBUNAL SHOULD DECIDE THAT ISSUE FIRST. 6 . THE LD DR W AS ALSO OF THE VIEW THAT AS THE LD CIT(A) HAS NOT DECIDED THIS ISSUE FOR THE REASON WITH PROPOSITION THE ASSESSEE MIGHT NOT HAVE PRESS OR DECIDE THE ABOVE GROUND. 7 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED GROUND NO. 1 BEFORE THE LD CIT(A) WAS WITH RESPECT TO NON ISSUE/ RECEIPT OF THE NOTICE WITHIN A PROPER TIME AS PROVIDED BY THE LAW. THE ABOVE GROUND IS DISMISSED BY THE LD CIT(A) HOLDING THAT SAME IS GENERAL IN NATURE. LOOKING AT PAGE NO. 188 OF THE PAPER BOOK WHICH IS LETTER DAT ED 10.11.2016 BY THE LD AO IN THE RESPONSE TO THE LETTER DATED 02.04.2016 OF THE ASSESSEE RAISING THE OBJECTION THAT NOT NOTICE U/S 143(2) HAS BEEN RAISED ON OR BEFORE 30.09.2015. IN PARA NO. 2 THE LD AO CATEGORICALLY REPLIED TO THE ASSESSEE THAT SUCH NOTI CE WAS ISSUED ON 23.09.2015 AT THE ADDRESS MENTIONED IN THE RETURN OF INCOME WHICH WAS RECEIVED BY SHRI SAWAN AGARWAL. THE LD AO FURTHER IN PRA NO. 3 HAS ALSO CATEGORICALLY HELD THAT THE JURISDICTION LIES WITH HIM. HOWEVER WHEN AN ASSESSEE HAS RAISED GROUN D OF APPEAL BEFORE THE LD CIT(A) IT REQUIRES TO BE DISPOSED OFF BY A SPEAKING ORDER. EVEN BEFORE US THIS IS THE PRIME GRIEVANCE OF THE ASSESSEE. IN VIEW OF THE NON DISPOSAL OF A JURISDICTIONAL GROUND BY LD CIT(A) WE SET ASIDE THE WHOLE MATTER BACK TO THE F ILE OF LD CIT(A) TO DECIDE GROUND NO. 1 TO 14 OF THE APPEAL MENTIONED AT PAGE NO. 2 AND 3 OF THE APPELLATE ORDER WHICH GOES TO THE ROOT OF THE MATTER. ACCORDINGLY, THE ITA NO. 5 3 33/DEL/2019 IS SET ASIDE TO THE FILE OF THE LD CIT(A). THE LD CIT(A) MAY PASS A SPEAKING ORDER AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. AS THE ISSUE INVOLVED SUBSTANTIAL TAX DEMAND THE MATTER MAY BE DISPOSED OFF BY THE LD CIT(A) EXPEDITIOUSLY. ACCORDINGLY, ITA NO. 5333/DEL/2019 IS ALLOWED FOR STATISTICAL PURPOSES TO T HE EXTENT SPECIFIED ABOVE. 8 . IN THE RESULT STAY PETITION NO. 803/DEL/2019 BECOMES INFRACTUOUS AND HENCE DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 2 5 / 09 / 2019 . - SD/ - - SD/ - ( AMIT SHUKLA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER PAGE | 4 DATED: 2 5 / 09 / 2019 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI