K.S.G.Venkatesh, Chennai V. ITO, NCW-20(5), Chennai

ITA 534/CHNY/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1647 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 25-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DIRSHAK
• Keywords: Invalid notice; Gift; Period of limitation; Time period of passing order

Judgement Text

आयकर अपीलीय अिधकरण, ‘ए’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI Įी महावीर ͧसंह, उपाÚय¢ एवं Įी मनोज क ु मार अĒवाल, लेखा सदèय के सम¢ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.: 534/CHNY/2021 िनधाᭅरण वषᭅ /Assessment Year:2009-10 Shri K.S.G. Venkatesh, C/o. A.N. Seetharaman & Co, Sri Rama Sadhanam-First Floor, NewNo.23, Chinnaiah Road, T.Nagar, Chennai – 600 017 PAN: ABSPV 4473F v. The Income Tax Officer, Non-Corporate Ward – 20(5), Chennai (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri Dirshak, CA for Shri R.Viswanathan, CA ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri AR.V. Sreenivasan, Addl.CIT स ु नवाई कȧ तारȣख/Date of Hearing : 12.05.2022 घोषणा कȧ तारȣख/Date of Pronouncement : 20.05.2022 आदेश /O R D E R PER MAHAVIR SINGH, VP: This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-7, Chennai in ITA No.220(T- 14)/CIT(A)-7/2016-17 dated 17.03.2020. The assessment was framed by the Income Tax Officer, Non-Corporate Ward-20(5), Chennai for the assessment year 2009-10 u/s.143(3) r.w.s. 147 of 2 ITA No.534/Chny/2021 the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 27.12.2016. 2. At the outset, it is noticed that this appeal is barred by limited by 273 days. The appellate order was received by the assessee as per Form No.36 on 18.12.2020, the appeal before Tribunal was filed only on 26.11.2021 and now, the assessee’s contention is that this period of delay comes within the lockdown imposed by Government of India w.e.f. 25.03.2020 due to Covid-19 pandemic and subsequently the Hon’ble Supreme Court in Miscellaneous Application No.665 of 2021 vide order dated 23.03.2020 has given directions that the delay are to be condoned during this period 15.03.2020 to 14.03.2021 and they have condoned the delay up to 28.02.2022 in Miscellaneous Application No.21 of 2022 vide order dated 10.01.2022. Respectfully following the same, we feel that the delay needs to be condoned. Hence, we condone the delay and admit the appeal. 3. The ld.AR for the assessee Shri Dirshak, CA took us through the first issue which is raised by the following Grounds:- “1. The order of the learned CIT(A) is contrary to Law, facts and circumstances of the case. 2.1 The learned CIT(A) erred in not appreciating that the notice u/s.148 was dated issued on the last day of limitation period and the learned AO resorted 3 ITA No.534/Chny/2021 to service of the notice by Post as well as substituted service i.e by Affixture, without following mandatory procedures as laid down in Code of Civil Procedure, 1908. The notice purported to have been sent electronically was not addressed to the correct email address of the Appellant. 2.2 The learned CIT(A) ought to have held that service of notice u/s.148 was illegal and bad in law; the Assessment order passed in pursuant to such invalid notice deserved to be quashed as held by the Jurisdictional High Court.” 4. The ld.AR for the assessee took us through the order of CIT(A) and stated that the CIT(A) has not passed the order on reopening rather he simply confirmed the action of AO by stating that the order of AO is self-speaking order and addressed both the issues adequately. The ld.AR took us through the findings of the CIT(A), which reads as under:- “The above self-speaking order of the AO has adequately addressed both the issues of the assessee’s allegation that the objections to the re-opening were not disposed off by a speaking order. As regards the allegation that the notice is served beyond the time and is ab-initio void, the issue has no substance since the AO has taken all the steps necessary including service by e-mail on the assessee’s designated e-mail id on 31.03.2016 itself. As per sec.282(C) if the IT Act, service of a notice is sanctioned in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000. Hence the objections of the assessee on legal ground are hereby dismissed.” 4.1 As regards to the merits of the case in regard to addition of unexplained investment u/s.69 of the Act, for an amount of Rs.1,96,90,500/-, the ld.AR stated that the CIT(A) simply was in 4 ITA No.534/Chny/2021 agreement with the AO without speaking a word and the relevant findings of CIT(A) reads as under:- “I am in agreement with the AO on the issue of bringing to tax the impugned amount of Rs.1,96,90,500 u/s.69. However, alternatively, if the claim of the appellant that he has not invested in the impugned properties is accepted, then the value of the properties have to be considered as deemed gifts and taxed accordingly in appellants hands. Either way there is no escaping from taxing the value of the impugned properties. In the result, this ground stands dismissed.” 4.2 The ld.AR stated that there is no adjudication by the CIT(A). The CIT(A) simply agreed on the issue of reopening as well as on merits. Hence, he simply requested that the matter may be restored back to the file of the CIT(A). 5. When these facts were confronted to ld. Sr. DR, he could not controvert the above fact situation. 6. We have heard rival submissions and gone through the facts and circumstances of the case. Admittedly, the order of CIT(A) is a non-speaking order on the issue of jurisdiction as well as on merits. Hence, these issues need re-consideration at the level of CIT(A) afresh. Therefore, we set aside the order of CIT(A) and remand the matter back to the file of CIT(A) for fresh consideration 5 ITA No.534/Chny/2021 after allowing reasonable opportunity of being heard to the assessee. 7. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 20 th May, 2022 at Chennai. Sd/- Sd/- (मनोज कुमार अᮕवाल) (MANOJ KUMAR AGGARWAL) लेखा सद᭭य /ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 20 th May, 2022 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ /CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF.