ACIT, New Delhi V. Sh. Deepak Goel, New Delhi

ITA 5398/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7331 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAHUL KOCHAR; S SH AMOL SINHA
• Assessee Lawyers: PARMINDER KAUR
• Keywords: Period of limitation; Time period of passing order
• Section: 143(3); 139

Judgement Text

ITA NO. 5398 /D EL/ 2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B , NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. N O. 5398 /DEL/2013 A.Y. : 2008 - 09 ACIT,CIRCLE - 26(1), ROOM NO. 1802, 18 TH FLOOR, E - 2 BLOCK, CIVIC CENTRE, NEW DELHI 110 002 VS. SH. DEEPAK GOEL, N - 46A, VIJAY VIHAR, UTTAM NAGAR, NEW DELHI (PAN:AKCPG4801F) (APPELLANT) (RESPONDENT) DEPARTMENT BY : S/ SH. AMOL SINHA & RAHUL KOCHAR, ADV. ASSESSEE BY : SMT. PARMINDER KAUR, SR. DR DATE OF HEARING : 10 - 09 - 2014 DATE OF ORDER : 26 - 09 - 2014 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE OR DER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - XXIV, NEW DELHI DATED 23 . 7 .2013 P ERTAINING TO ASSESSMENT YEAR 2008 - 09 . 2. THE GROUNDS RAISED READ AS UNDER: - ON FACTS AND CIRCUMSTANCES OF THE CASE IN LAW, THE LD. CIT(A) HAS ERRED IN : - ITA NO. 5398 /D EL/ 2013 2 1. ALLOWING THE APPEAL ON TECHNICAL GROUND AS IN ASSESSMENT ORDER, THE DATE OF NOTICE ISSUED U/S. 143(2) HAS BEEN INADVERTENTLY WRITTEN AS 03.8.2010 INSTEAD OF 3.8.2009. 2. IGNORING THE PROVISION OF SECTION 292BB OF THE I.T. ACT WHICH PROVIDES THAT THE ASSES SEE, WHO HAS NOT RAISED ANY OBJECTION DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SHALL BE PRECLUDED FROM TAING ANY OBJECTION IN ANY PROCEEDINGS AND INQUIRY UNDER THIS ACT THAT THE NOTICE WAS NOT SERVED UPON HIM IN TIME. 3. THE APPELLANT CRAVES THE RIGHT TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEALING IN SHARES AND DERIVATIVES. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE RELEVANT AY 2008 - 09 DECLARING LOSS OF RS. 579363/ - ON 30.9.2008. THE CASE WAS SELECTED FOR SCRUTINY AND A NOTICE U/S. 143(2) OF THE I.T. ACT WAS ISSUED ON 03.8.2010. DURING THE COURSE OF ASSESSMENT, THE AO NOTED THAT THE ASSESSEE HAD SHOWN OPENING BALANCE OF HIS CAPITAL AT RS. 15,30,000 / - AND FURTHER ADDITION OF RS. 3,43,000/ - WAS MADE DURING THE RELEVANT ASSESSMENT YEAR. THE AO REQUESTED THE ASSESSEE TO FURNISH THE COPY OF BALANCE SHEET OF THE IMMEDIATELY PRECEDING ASSTT. YEAR 2007 - 08 TO ENQUIRE ABOUT THE GENUINENESS OF THE OPENING BA LANCE OF THE CAPITAL. HOWEVER, THE ASSESSEE COULD NOT SUBMIT THE COPY OF BALANCE SHEET AND THE PROFIT AND LOSS ACCOUNT TO PROVE THE OPENING BALANCE OF CAPITAL BEFORE THE AO. IN THE ABSENCE OF VERIFICATION, THE AO ADDED RS. 15,30,000/ - AND RS. 3,43,000/ - AS INCOME OF THE ASSESSEE FROM THE UNDISCLOSED SOURCES AND COMPLETED THE ASSESSMENT AT RS. 12,93,640/ - U/S. 143(3) OF THE ACT VIDE ORDER DATED 22.12.2010. ITA NO. 5398 /D EL/ 2013 3 4. AGAINST THE ORDER DATED 22 .12.2010 OF THE ASSESSING OFFICER, ASESSSEE APPEALED BEFORE THE LD. FIRST APPELLATE AUTHORITY, WHO VIDE IMPUGNED ORDER DATED 23 . 7. 2013 ALLOWED THE APPEAL OF THE ASSESSEE. 5. AGAINST THE ABOVE ORDER DATED 23 . 7.2013 OF THE LD. CIT(A), REVENUE IS IN APPE AL BEFORE US. 6. LD. DR WHILE FILING THE APPEAL BEFORE THE TRIBUNAL BY WAY OF GROUND OF APPEAL STATED THAT LD. CIT(A) HAS ERRED IN ALLOWING THE APPEAL ON TECHNICAL GROUND AS IN THE ASSESSMENT ORDER, THE DATE OF NOTICE ISSUED U/S. 143(2) HAS BEEN INA DVERTENTLY WRITTEN AS 03.8.2010 INSTEAD OF 3.8.2009. 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT LD. CIT(A) HAS CONSIDERED THE THE SUBMISSIONS MADE BY THE LD. AR AND HAVE GONE THROUGH THE ASSESSMENT ORDER. IT WAS SEEN BY HIM TH AT IN THIS CASE THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 30.9.2008. AND THE NOTICE U/S 143(2) HAS BEEN ISSUED ON 3.8.2010. AS PER PROVISO TO CLAUSE (II) OF SUB - SECTION (2) OF SECTION 143, NO NOTICE UNDER CLAUSE (II) SHOULD BE SERVED ON THE ASSESSEE A FTER THE EXPIRY OF THE SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. IN THIS CASE, THE RETURN OF INCOME WAS FILED BY THE ASSESSEE U/S. 139 OF THE I.T. ACT ON 30.9.2008. THIS PROVISO HAS BEEN SUBSTITUTED BY THE FINACNE A CT, 2008 W.E.F. 1.4.2008. THEREFORE, AS PER THE PROVISO TO CLAUSE (II) OF SUB - SECTION 2 OF SECTION 143, A NOTICE U/S. 143(2) COULD HAVE BEEN ISSUED BY 30.9.2009. IN THIS CASE, THE IMPUGEND NOTICE HAS BEEN ISSUED ON 3.8.2010 WHICH IS BEYOND THE LIMITATION PERIOD. WE FIND THAT LD. CIT(A) HAS REPRODUCED AS UNDER THE OPENING PARA OF THE ORDER OF THE ASSESSING OFFICER. IN THIS CASE, THE RETURN OF INCOME DECLARING LOSS OF RS. 579363/ - WAS FILED ON 30.9.2008 WHICH WAS PROCESSED ITA NO. 5398 /D EL/ 2013 4 U/S. 143(1) ON 11.7.2009 AT TH E RETURNED INCOME. THE CASE WAS SELECTED FOR SCRUTINY THROUGH CASS, BY ITO, WARD 26(3), NEW DELHI WHO ISSUED THE NOTICE U/S. 143(2) OF THE I.T. ACT ON 3.8.2010 FIXING THE CASE FOR 20.8.2010 .. 7.1 LD. CIT(A) FROM THE ABOVE PARA, OBSERVED THAT IT IS CLE AR THAT NOTICE U/S. 143(2) HAS BEEN ISSUED BEYOND THE LIMITATION PERIOD. THEREFORE, IN HIS OPINON, THE AO HAS ERRED IN INITIATING THE SCRUTINY PROCESS IN THIS CASE AND THE NOTICE U/S. 143(2) WAS BARRED BY LIMITATION. HENCE, RELYING UPON THE DECISION OF TH E HON BLE APEX COURT IN THE CASE OF ACIT VS. HOTEL BLUE MOON (2010) 321 ITR 363 (SC) AND DCIT VS. MAXIMA SYSTEMS LTD. (2010) 236 CTR 443 (GUJ.), HE WAS OF THE CONSIDERED OPINION THAT NOTICE U/S. 143(2) WAS NOT A VALID NOTICE AND, THEREFORE, THE ASSESSMENT ORDER IS HEREBY QUASHED. 7.2 DURING THE HEARING LD. DR HAS PRODUCED A PHOTOCOPY OF THE ORDER SHEET DATED FROM 3.8.2009 TO 30.8.2010, WHEREIN VIDE DATED 3.8.2009 IT WAS MENTIOEND THAT NOTICE U/S. 143(2) OF THE I.T. ACT, 1961 ISSUED AND SERVED UPON THE ASSESSEE AND FIXED FOR HEARING ON 20.8.2009. THEREFORE, IT WAS THE CONTENTION OF THE DEPARTMENT THAT LD. CIT(A) HAS ERRED IN ALLOWING THE APPEAL ON TECHNICAL GROUND AS IN THE ASSESSMENT ORDER, THE DATE OF NOTICE ISSUED U/S. 143(2) HAS BEEN INADVERTENTLY WRITTEN AS 3.8.2010, INSTEAD OF 3.8.2009. UPON GOING THROUGH THE RECORDS, WE FIND CONSIDERABLE COGENCY IN THE CONTENTION OF THE DEPARTMENT AND HENCE WE ACCEPT THE SAME . ACCCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. ITA NO. 5398 /D EL/ 2013 5 CIT(A) AND RESTORE THE ISSUES TO T HE FILE OF THE LD. CIT(A) TO DECIDE AFRESH ON MERITS, AFTER PROVIDING AN OPPORTUNTIY OF BEING HEARD. 8 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE O PEN C OURT ON 26 / 09 /20 1 4 . SD/ - SD/ - [ G.D. AGRAWAL ] [ H.S. SIDHU ] VICE PRESIDENT JUDICIAL MEMBER DATE 26 / 09 /201 4 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES