Mohit Gupta, Faridabad V. DCIT, Circle-1, Faridabad

ITA 5502/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4644 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Revised return; Set aside
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: SMC, NEW DELHI) BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER ITA NO:-5502/DEL/2018 ( ASSESSMENT YEAR: 2010-11) MOHIT GUPTA H. NO.634, SECTOR 28, FARIDABAD VS. DCIT CIRCLE -1 FARIDABAD APPELLANT RESPONDENT ASSESSEE BY : MS. RANO JAIN, ADVOCATE SH. PRANSHU SINGHAL, CA MS. MANSI JAIN, CA REVENUE BY : SH. S. L. ANURAGI, SR. DR DATE OF HEARING : 20.05.2019 DATE OF PRONOUNCEMENT : 21.05.2019 ORDER PER: N. K. BILLAIYA, AM THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS], FARIDABAD, DA TED 26.06.2018 FOR ASSESSMENT YEAR 2010-11. 2. THE GRIEVANCE OF THE ASSESSEE READS AS UNDER :- 2 ITA NO.-5502/DEL/2018 3. THE FACTS SHOW THAT ORIGINAL RETURN OF INCOME WA S FILED ON 28.07.2010 DECLARING INCOME OF RS.1,33,53,180/-. THE RETURN W AS SELECTED FOR SCRUTINY ASSESSMENT AND ACCORDINGLY STATUTORY NOTICES WERE I SSUED AND SERVED UPON THE ASSESSEE ON 29.08.2011 FIXING THE CASE FOR 12.0 9.2011. THE ASSESSEE FILED HIS REVISED RETURN OF INCOME ON 09.09.2011 DE CLARING INCOME OF RS.14,88,380/- AND ALSO ADDED RS.10,000/- AS AGRICU LTURAL INCOME. 4. THE ASSESSMENT WAS FRAMED U/S. 143(3) OF THE ACT VIDE ORDER DATED 04.03.2013 AT AN INCOME OF RS.1,67,53,489/-. 3 ITA NO.-5502/DEL/2018 5. THE ASSESSMENT WAS CHALLENGED BEFORE THE CIT(A) WHO GAVE PARTIAL RELIEF TO THE ASSESSEE BUT THE FOLLOWING ADDITIONS WERE CONFIRMED :- 1. ADDITION ON ACCOUNT OF CASH DEPOSIT : RS. 99,000/- 2. ADDITION ON ACCOUNT OF LOAN TO SMT. DIMPLE GUPTA : RS.7,27,528/- 3. ADDITION ON ACCOUNT OF CASH IN HAND : RS. 15,500/- 6. IN THE MEAN TIME THE CIT, FARIDABAD TOOK UP THE CASE FOR REVISION U/S. 263 OF THE ACT. THE ORDER U/S. 263 WAS PASSED ON 31.03.2015 BY MAKING THE FOLLOWING OBSERVATIONS :- 6. IN VIEW OF ALL THE ABOVE MENTIONED FACTS AND LEG AL POSITION, IT IS HELD, THAT THE IMPUGNED ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AS WELL AS PREJUDICI AL TO THE INTEREST OF REVENUE. THERE HAS BEEN NON-APPLICATION OF MIND ON PART OF THE AO. THE ITO HAS TAKEN A VIEW WHICH IS UNSUSTAINABLE BY ACCEPTING THE REVISED RETURN, WHICH WAS NOT ACCEPTABLE U/S 13 9(5) AS THE SAME WAS FILED AFTER DETECTION OF CONCEALMENT BY TH E DEPARTMENT. THE ASSESSMENT ORDER PASSED U/S 143(3) VIDE ORDER D ATED 04.03.2013 FOR THE ASSESSMENT YEAR 2010-11 IS HEREB Y CANCELLED/SET ASIDE U/S 263(1) OF THE INCOME TAX AC T, 1961 AND IS RESTORED TO THE FILE OF AO FOR MAKING A FRESH ASSES SMENT WITHOUT GIVING THE BENEFIT OF REVISED RETURN FILED BY THE A SSESSEE. THE AO IS DIRECTED TO MAKE A JUDICIOUS AND SPEAKING ORDER AS PER LAW AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE. ANU ADVERSE INFERENCE MADE WOULD REQUIRE RE-COMPUTATION OF INCOME AND TAX THEREON . 7. THE PRESENT ASSESSMENT IS FRAMED PURSUANT TO THE DIRECTIONS OF THE CIT GIVEN IN HIS ORDER FRAMED U/S. 263 OF THE ACT. WHILE COMPLETING THE ASSESSMENT AND FOLLOWING THE DIRECTIONS OF THE CIT THE ASSESSING OFFICER 4 ITA NO.-5502/DEL/2018 DENIED THE CLAIM OF SET OFF OF LOSS OF RS.512059/- AND COMPLETED THE ASSESSMENT. 8. ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) BU T WITHOUT ANY SUCCESS. 9. BEFORE ME THE COUNSEL FOR THE ASSESSEE VEHEMENTL Y STATED THAT ONCE THE CIT DIRECTED TO IGNORE THE REVISED RETURN OF IN COME THEN THE ASSESSING OFFICER SHOULD NOT HAVE ACCEPTED THE INCOME SHOWN I N THE REVISED RETURN OF INCOME. IT IS THE SAY OF THE COUNSEL THAT IF THE I NCOME SHOWN IN THE REVISED RETURN OF INCOME HAS TO BE ACCEPTED THAN THE LOSSES CLAIMED SHOULD ALSO BE ALLOWED TO BE SET OFF. 10. PER CONTRA THE DR STRONGLY SUPPORTED THE FINDIN GS OF THE LOWER AUTHORITIES. 11. I HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. THE FACTUAL MATRIX HAS ALREADY BEEN EXPLAINED HERE IN ABOVE. THE DIRECTIONS OF THE CIT MENTIONED ELSEWHE RE CLEARLY SHOW THAT HE HAS DIRECTED THE ASSESSING OFFICER TO MAKE A FRE SH ASSESSMENT WITHOUT GIVING THE BENEFIT OF REVISED RETURN FILED BY THE A SSESSEE. THIS MEANS THAT THE REVISED RETURN FILED ON 09.09.2011 BECOMES NON EST. IN MY CONSIDERED VIEW ONCE THE REVISED RETURN BECOMES NON EST, THE E NTIRE ASSESSMENT HAS TO BE FRAMED ON THE BASIS OF THE ORIGINAL RETURN OF INCOME FILED ON 5 ITA NO.-5502/DEL/2018 28.07.2010. I FIND THAT AN ASSESSMENT ORDER DATED 04.03.2013 HAS ALREADY BEEN FRAMED U/S. 143 (3) OF THE ACT WHICH HAS BEEN SUBJECT MATTER OF APPEALS BEFORE THE CIT(A) AND ALSO BEFORE THE TRIBU NAL. 12. I AM OF THE OPINION THAT THE ADDITIONS MADE IN THE PRESENT ASSESSMENT ORDER SHOULD FAIL. I ACCORDINGLY DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.512059/-. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.05.2019. SD/- (N.K.BILLAIYA) ACCOUNTANT MEMBER DATED: 21.05.2019 NEHA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 6 ITA NO.-5502/DEL/2018 DATE OF DICTATION 20.05.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20.05.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER