SUMIT GUPTA, NEW DELHI V. ITO, WARD- 47(4), NEW DELHI

ITA 5553/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5666 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 27-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Additional evidence; Reassessment proceedings
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 5553/DEL/2018 ASSESSMENT YEAR: 2010-11 SUMIT GUPTA VS. ITO, WARD 47(4), SHOP NO. 18/19, S/F, T/F, DRUM SHAPE BUILDING, KUCHA CHOUDHARY, NEW DELHI 110 002 CHANDNI CHOWK, NEW DELHI 110 006 (PAN: AIUPG9428Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. MUKUL GUPTA, CA DEPARTMENT BY : SH. S.L. ANURAGI, SR. DR. ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19.6.2018 OF THE LD. CIT(A)-16, NEW DELHI RELAT ING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE IMPUGNED ORDER OF THE LEARNED ASSESSING OFFICER WHICH IS CONTRARY TO LAW, PASSED WITHOUT APPLICATION OF MIND A ND WITHOUT COMPLYING WITH THE PROCEDURE AND RULES, IS AGA INST EQUITY AND JUSTICE AND FACTS OF THE ASSESSEE AND MATERI AL ON RECORD. 2. THE APPELLANT DENIES HIS LIABILITY TO TAX AS UPHELD B Y THE LEARNED CIT (A) AND DETERMINED AND COMPUTED BY THE LEARNED 2 ASSESSING OFFICER AND THE MANNER IN WHICH IT HAS BEE N SO DETERMINED OR COMPUTED. 3. LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN HOLDING THE VALIDITY OF REASSESSMENT PROCEEDINGS IGNORING THE FA CT THAT INITIATION OF THE PROCEEDINGS U/S 148 AND THE CONSEQUE NT ORDER U/S 147 ARE BAD IN LAW AS: A. THE INITIATION OF PROCEEDINGS U/S 148 IS CONTRAR Y TO PROVISIONS OF LAW. B. THE MANDATORY PROCEDURE LAID DOWN IN THE ACT HAS N OT BEEN FOLLOWED. C. THE PROCEEDING U/S 148 HAS BEEN INITIATED BY AO WARD 63(2) HAVING NO JURISDICTION OVER THE CASE AND APPROV AL HAS BEEN GRANTED BY PCIT HAVING NO JURISDICTION OVER THE CASE. THE ASSESSMENT HAS BEEN COMPLETED BY THE AO WARD 47(4) W HO HAD NOT ISSUED NOTICE U/S 148. D. THE ASSESSMENT HAS BEEN MADE ON THE BASIS OF CONJECTURE & SURMISES WITHOUT ANY COGENT EVIDENCE. AD DITION ON ACCOUNT OF ARBITRARY TURNOVER IS AGAINST LAW. NOT ALL CREDITS IN BANK ARE SALES. 4. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LA W IN UPHOLDING THE ADDITION OF RS.2,42,511/- ON ACCOUNT O F CONJECTURE AND SURMISES. 5. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW BY NOT ADJUDICATING GROUND OF INITIATION OF PENALTY PROCEEDI NGS U/S 271(1 )(C) WITHOUT ANY MATERIAL ON RECORD. 6. THE LEARNED CIT (A) HAS ERRED ON FACTS AND IN LAW BY NOT ADJUDICATING GROUND OF INITIATION OF PENALTY PROCEED INGS U/S 271B FOR FAILURE TO GET ACCOUNTS AUDITED ON THE BASIS OF ASSUMPTIONS AND PRESUMPTIONS. 3 PRAYER 1. THE APPELLANT CRAVES LEAVE AND SANCTION OF THE HO NBLE ITAT TO FILE ADDITIONAL EVIDENCE, IF SO REQUIRED FOR PROPER PROSECUTION OF THE CASE, BASED ON FACTS AND CIRCUMS TANCES, WHICH HAS NOT BEEN OR COULD NOT BE PRODUCED OR FILED BEFORE LOWER AUTHORITIES EITHER BECAUSE PROPER AND SUFFICIENT OPPORTUNITY WAS NOT PROVIDED OR BECAUSE IT WAS NOT SOL ICITED OR ITS NEED WAS NOT APPRECIATED. 2. THE APPELLANT CRAVES LEAVE TO AND PERMISSION OF TH E HON'BLE ITAT TO ADD TO OR ALTER ANY OF THE GROUNDS O F APPEAL AT ANY TIME UPTO THE FINAL DECISION OF THE APPEAL. 3. THE ORDER OF THE A.O. AS UPHELD BY THE LEARNED CI T(A) BE DECLARED AS NULL AND VOID AB-INITIO, ADDITIONS MADE BY AO AND UPHELD BY LD. CIT(A) BE DELETED, AND THE INCOME RETU RNED BE ACCEPTED AS TRUE AS PER LAW; OR SUCH OTHER ORDER AS YOUR HONOURS MAY DEEM FIT UNDER THE CIRCUMSTANCES OF THE CA SE BE PASSED. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. LD. COUNSEL OF THE ASSESSEE STATED THAT THE LD. CIT( A) HAS WRONGLY UPHELD THE VALIDITY OF REASSESSMENT PROCEEDIN GS IGNORING THE FACT THAT INITIATION OF THE PROCEEDINGS U/S. 148 AN D THE CONSEQUENT ORDER U/S. 147 ARE BAD IN LAW, BECAUSE TH E INITIATION OF PROCEEDINGS U/S. 148 IS CONTRARY TO PROVISIONS OF LAW ; THE MANDATORY PROCEDURE LAID DOWN IN THE ACT HAS NOT BEEN FOLLOWED; 4 THE PROCEEDING U/S. 148 OF THE ACT HAS BEEN INITIATED BY THE AO, WARD 63(2) HAVING NO JURISDICTION OVER THE CASE AND A PPROVAL HAS BEEN GRANTED BY PCIT HAVING NO JURISDICTION OVER THE CASE. THE ASSESSMENT HAS BEEN COMPLETED BY THE AO, WARD 47(4) WHO HAD NOT ISSUED NOTICE U/S. 148 AND THE ASSESSMENT HAS BE EN MADE ON THE BASIS OF CONJECTURE AND SURMISES AND WITHOUT AN Y COGENT EVIDENCE. THEREFORE, HE REQUESTED TO GRANT AN OPPORT UNITY TO FILE ADDITIONAL EVIDENCE, FOR PROPER PROSECUTION OF THE CA SE, BASED ON FACTS AND CIRCUMSTANCES, WHICH HAS NOT BEEN OR COULD NOT BE PRODUCED OR FILED BEFORE THE LOWER AUTHORITIES EITHER BECAUSE OF PROPER AND SUFFICIENT OPPORTUNITY WAS NOT PROVIDED O R BECAUSE IT WAS NOT SOLICITED OR ITS NEED WAS NOT APPRECIATED. HENC E, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH BY PASSING A SPEAKING ORDER AND AFTER CONSIDERING ALL THE ADDITIONAL EVIDE NCES. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE REC ORDS ESPECIALLY THE IMPUGNED ORDER OF THE LD. CIT(A) AS WE LL AS THE PAPER BOOK FILED BY THE ASSESSEE CONTAINING PAGES 1-72 PAGE S IN WHICH HE HAS ATTACHED THE COPY OF NOTICE U/S. 148 ISSUED ON 31.3.2017 BY THE ITO, WARD 63(2), NEW DELHI; COPY OF RETURN FILED IN RESPONSE TO NOTICE U/S 148 DATED 29.4.2017 ALONGWITH BALANCE SHE ET, PROFIT AND LOSS ACCOUNT AND CHALLAN OF TAX PAID; REQUEST DATED 7. 6.2017 5 SUBMITTED ON 14.6.2017 TO PROVIDE REASONS RECORDED BEF ORE ISSUE OF NOTICE U/S. 148; COPY OF REASONS PROVIDED BY AO WARD 63(2) THROUGH LETTER DATED 25.8.2017; OBJECTION TO REASONS RECORDED FILED BY THE ASSESSEE BEFORE AO WARD 63(2) DATED 18.9.2017 ; DISPOSAL OF OBJECTIONS BY AO WARDS 63(2) DATED 16.10.2017; REQUE ST TO DROP PROCEEDING U/S. 148 BEFORE AO WARD 63(2) THROUGH LE TTER DATED 30.10.2017 BY SPEED POST; ISSUE OF NOTICE U/S. 143(2 ) BY AO WARDS 47(4); WRITTEN SUBMISSION GIVEN TO AO WARD 47(4) DATED 18.12.2017 TO DROP PROCEEDINGS U/S. 148 BEFORE AO WA RD 63(2) THROUGH LETTER DATED 30.10.2017 BY SPEED POST; ISSUE O F NOTICE U/S. 143(2) BY AO WARDS 47(4); WRITTEN SUBMISSION GIVEN TO AO WARD 47(4) DATED 18.12.2017 TO DROP PROCEEDINGS; SHOW CA USE NOTICE DATED 18.12.2017 REJECTING REQUEST OF ASSESSEE DATED 18.12.2017 ON JURISDICTION POINT; WRITTEN SUBMISSION BEFORE AO WARD 47(4) WITH BOOKS OF ACCOUNTS MAINTAINED BY ASSESSEE AND ASSESSM ENT ORDER DATED 21.12.2017. I FIND THAT CONSIDERABLE COGENCY IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT TH E PROCEEDING U/S. 148 OF THE ACT HAS BEEN INITIATED BY THE AO, WARD 63(2) HAVING NO JURISDICTION OVER THE CASE AND APPROVAL HAS BEEN G RANTED BY PCIT HAVING NO JURISDICTION OVER THE CASE. I FURTHER FIN D THAT THE ASSESSMENT HAS BEEN COMPLETED BY THE AO, WARD 47(4) WHO HAD NOT ISSUED NOTICE U/S. 148 AND THE ASSESSMENT HAS BEE N MADE. IN THIS VIEW, I AM OF THE CONSIDERED OPINION THAT REQUES T FOR GRANT OF FILING THE ADDITIONAL EVIDENCES, IF ANY, IS QUITE GEN UINE AND HENCE, THE SAME IS ACCEPTED. ACCORDINGLY, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUES IN DISPUTE AFRESH, IN ACCORDANCE WITH LAW , AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE PARTIES AND PASS A SPEAKING ORDER AND ACCEPT AND CONSIDER THE ADDITIONAL EVIDENCES, IF A NY, TO BE FILED BY THE ASSESSEE. HOWEVER, THE ASSESSEE IS DIRECTED TO C OOPERATE WITH THE LD. 6 CIT(A) IN THE PROCEEDINGS AND PRODUCE ALL THE DOCUM ENTS BEFORE HIM TO SUBSTANTIATE ITS CLAIM AND NOT TO TAKE ANY UNNECES SARY ADJOURNMENT. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STA NDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 04/02/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:04/02/2019 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR