Smt. Shama Rani, Jalandhar V. The Income-tax Officer, Kapurthala

ITA 573/ASR/2014

• Counselvise Citation: 57320914 RSA 2014
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 24-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARSEM LAL
• Assessee Lawyers: SANDEEP VIJJH
• Keywords: Non passing of speaking order
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D.JAIN, JUDICIAL MEMBER I.T.A. NO. 573(ASR)/2014 ASSESSMENT YEAR: 2005-06 PAN: BCIPRO540P SMT. SHAMA RANI, W/O SH. DAVINDER SEHGAL GALI JULANHIAN, KAPURTHALA JALANDHAR VS. INCOME TAX OFFICER, WARD-II, KAPURTHALA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. SANDEEP VIJJH, CA. RESPONDENT BY: SH. TARSEM LAL, DR. DATE OF HEARING: 22.06.2015 DATE OF PRONOUNCEMENT: 23.06.2015 ORDER PER A.D.JAIN (JM): THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2 005-06, AGAINST THE ORDER OF CIT(A), JALANDHAR DATED 28.08.2014, TAKI NG THE FOLLOWING GROUNDS. 1(A) THE LEARNED COMMISSIONER OF INCOME TAX(APPEAL S) HAS ERRRED IN SUSTAINING THE ASSUMPTION OF JURISDICTION FOR RE- ASSESSMENT. (B) THAT THE LEARNED COMMISSIONER OF INCOME TAX(AP PEALS) HAS ERRED IN SUSTAINING THE ORDER PASSED U/S 143(3)/147 WHICH WAS BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE ADDITION OF RS.222,600/- TO THE RETUNRED INCOME. THE SUBMISSION MADE, THE FACTUAL AS WELL AS THE LEGAL POSITION HAVE NOT BEEN APPRECIATED. 2 ITA NO.573 (ASR)/2014 ASST. YEAR 2005-06 2. APROPOS GROUND NO.1, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAD TAKEN A GROUND OF APPEAL BEFO RE THE LEARNED CIT(A), TO THE EFFECT THAT THE ASSUMPTION OF JURISDICTION FOR RE-A SSESSMENT WAS BAD IN LAW. IT IS CONTENDED THAT IN THE WRITTEN SUBMITTIONS FILED BEF ORE THE LEARNED CIT(A) VIDE LETTER DATED 01.04.2014, THE ASSESSEE HAD SUBMITTED THAT THE NOTICE FOR RE- ASSESMENT WAS SENT TO THE ASSESSEE ON 28.03.2012, A FTER COMPLETING ALL LEGAL REQUREMENTS IN ONE SINGLE DAY, WHICH WAS NOT PRACTI CALLY POSSIBLE, THE AO BEING BASED AT KAPURTHALA & THE JOINT COMMISSIONER BEING AT JALANDHAR; AND THAT ALL THIS WAS NOT PRACTICALLY POSSIBLE WITHIN A FEW HOUR S, INDICATING THAT THE REASSESSMENT NOTICE HAD BEEN ISSUED WITHOUT APPLICA TION OF MIND, RENDERING SUCH NOTICE ILLEGAL AND THE CONSEQUENT ASSESSMENT VIDE AB INITIO . THE LEARNED COUNSEL FOR THE ASSESSEE STATES THAT ON THIS ASPECT OF THE MATTER, NO FINDING HAS BEEN RECORDED BY THE LEANRED CIT(A). 3. IT HAS FURTHER BEEN SUBMITTED BY THE LEARNED COU NSEL FOR THE ASSESSEE THAT THE ASSESSEE HAD ALSO RAISED A GROUND OF APPEAL BEF ORE THE LEARNED CIT(A) THAT THE AO HAD ERRED IN MAKING ADDITION OF RS.2,22,600/ -. IT IS STATED THAT IN THE AFORESAID WRITTEN SUBMISSION BEFORE THE LEAREND CIT (A), THE ASSESSEE HAD CONTENDED THAT ADVANCE OF RS.2,00,000/- HAD BEEN RE CEIVED FROM SARITA RANI AS PER AGREEMENT DATED 27.09.04, BUT THE SAME WAS DENI ED BY SARITA RANI, WHICH DENIAL HAD BEEN ACCEPTED BY THE AO WITHOUT ALLOWING THE ASSESSEE TOOK CROSS 3 ITA NO.573 (ASR)/2014 ASST. YEAR 2005-06 EXAMINE SARITA RANI. THE LEARNED COUNSEL CONTENDS T HAT THIS ASPECT OF THE MATTER HAS ALSO NOT ATTRACTED ANY FINDING AT THE HANDS OF THE LEARNED CIT(A), RENDERING THE IMPUGNED ORDER A NON SPEAKING ORDER. 4. THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE A SSESSEE ON BOTH THESE COUNTS ARE FOUND TO BE CORRECT. IN THE ORDER UNDER APPEAL, AT PAGE -4, FIRST PARA, A PART OF THE SUBMISSION OF THE ASSESSEE, AS MADE IN HER WRITTEN SUBMISSIONS FILED BEFORE THE LEAREND CIT(A) STANDS RECORDED AS FOLLOW S : FROM THE DOCUMENTS ENCLOSED, YOUR HONOUR WILL OBS ERVE THAT EVERYTHING HAPPENED WITHIN THE SAME DAY I.E., ON 28.03.2012 WH EN NOTICE WAS SENT TO THE ASSESSEE AFTER COMPLETING ALL LEGAL REQUIREMENT S. THIS IS NOT PRACTICALLY POSSIBLE SINCE ASSESSING OFFICER IS BAS ED AT KAPURTHALA & JOINT COMMISSIONER IS BASED AT JALANDHAR. INITIATION OF P ROCEEDINGS U/S 147 OF THE ACT BY THE ASSESSING OFFICER REQUIRES REASONS T O BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT, WHICH REQUIRES LONG PROCESS OF EVALUATION OF MATERIAL ON RECORD. AFTER RECORDING REASONS TO BELI EVE, SAME WAS TO BE SENT TO THE JOINT COMMISSIONER OF INCOME TAX BASED AT JALANDHAR FOR APPROVAL WHICH AGAIN REQUIRES APPLICATION OF MIND A T THE LEVEL OF JOINT COMMISSIONER OF INCOME TAX. AFTER APPROVAL BY JOINT COMMISSIONER OF INCOME TAX, ASSESSING OFFICER IS TO SEND NOTICE U/S 148 OF THE ACT WHICH WAS SENT ON SAME DAY AS IS CLEAR FROM THE AFORESAID NOTICE U/S 148 OF THE ACT. THUS ALL PROCEEDINGS AT KAPURTHALA, JALANDHAR AND AGAIN AT KAPURTHALA WERE COMPLETED WITHIN A FEW HOURS WHICH IS PRACTICALLY NOT POSSIBLE. 4 ITA NO.573 (ASR)/2014 ASST. YEAR 2005-06 ABOVE SAID SEQUENCE OF EVENTS ON 28.03.2012 CLEARLY PROVES THAT NOTICE U/S 148 OF THE ACT HAS BEEN ISSUED WITHOUT A PPLICATION OF MIND WHICH MAKES THE NOTICE ISSUED ILLEGAL AND BAD IN LA W AND CONSEQUENT ASSESSMENT FRAMED IS VOID AB-INITIO. THIS SUBMISSION ADDRESSES THE FOLLOWING GROUNDS OF APPEAL RAISED BEFORE THE LEARNED CIT(A). A)THAT ASSUMPTION OF JURISDICTION FOR REASSESSMENT IS BAD IN LAW. B) THAT THE ORDER PASSED U/S 143(3)/147 IS BAD IN LAW. 5. FURTHER, AT PAGE 23 OF THE IMPUGNED ORDER, GROUN D (C), AS TAKEN BY THE ASSESSEE, STANDS REPRODUCE AS UNDER: C) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEAREND ITO HAS ERRED IN MAKING THE ADDITION AMOUNTING TO RS.2,22,6 00/-. 6. AT PAGE 24 OF HIS ORDER, THE LEARNED CIT(A) REPR ODUCES THE FOLLOWING WRITTEN SUBMISSIONS OF THE ASSESSEE WITH REGARD TO THE ABOVE GROUND (C): I. ASSESSEE SUBMITTED THAT ADVANCE OF RS.2,00,000/ - WAS RECEIVED FROM SARITA RANI AS PER AGREEMENT DATED 27.09.2004 BUT T HE WAS DENIED BY SARITA RANI BY STATING THAT THIS AGREEMENT HAS NEVE R BEEN EXCUTED BETWEEN THE ASSESSEE AND SARITA RANI AND SAME WAS ACCEPTED BY THE ASSESSING OFFICER WITHOUT ALLOWING THE ASSESSEE TO CROSS EXAM INE SARITA RANI. II IT IS AN ESTABLISHED LAW THAT WHENEVER THERE AR E CONFLICTING STATEMENTS, ASSESSING OFFICER IS DUTY BOUND TO ALLOW CROSS EXAM INATION & STATEMENTS OF A PERSON CANNOT BE USED AGAINST THE ASSESSEE IN THE ABSENCE OF THE PERSON BEING MADE AVAILABLE FOR CROSS EXAMINATION. 7. THUS, THE LEAREND CIT(A) HAS DULY RECORDED THE A BOVE SPECIFIC SUBMISSIONS OF THE ASSESSEE. HOWEVER, THE OPERATIV E PORTION OF THE IMPUGNED ORDER READS AS FOLLOWS: 5 ITA NO.573 (ASR)/2014 ASST. YEAR 2005-06 6.4 I HAVE CONSIDERED THE OBSERVATIONS OF THE ASS ESSING OFFICER AS MADE BY HIM IN THE ASSESSMENT ORDER AS WELL AS IN THE RE MAND REPORT. I HAVE ALSO CONSIDERED THE WRITTEN SUBMISSION FILED BY THE ASSESSEE VIDE LETTER DATED 01.07.2014 AS WELL AS HER COUNTER COMMENTS ON THE ISSUE UNDER REFERENCE. I HAVE ALSO CONSIDERED VARIOUS JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE ASSESSEE AS WELL AS OTHER MATERIAL BROU GHT ON RECORD IN CONNECTION WITH THE ISSUE UNDER REFERENCE. ON CAREF UL CONSIDERATION OF THE ASSESSMENT ORDER, REMAND REPORT, WRITTEN SUBMISSION S AND COUNTER COMMENTS ON THE ISSUE UNDER REFERENCE, I AM OF THE OPINION THAT THE ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITION ON WELL FOUNDED REASONS AND I HAVE NO GROUNDS TO INTERFERE WITH THE ADDITION MADE BY THE ASSESSESSING OFFICER. THE ASSESSING OFFICER HAS ALS O BROUGHT SUFFICIENT MATERIAL ON RECORD WHICH SUGGESTS THAT THE ASSESSEE HAS MADE INVESTMENT IN THE PURCHASE OF IMMPVABLE PROPERTY FROM UNDISCLO SED SOURCES. MOREOVER, THE ASSESSEE HAS NOT BROUGHT ANYTHING NEW ON RECORD TO SUGGEST THAT THE SELLER OF THE PROPERTY IS TELLING LIES. THE JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE ASSESSEE ARE DIST INGUISABLE ON FACTS AND ARE NOT APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE. 6.5 IN VIEW ABOVE STATED FACTS AND IN THE CIRCUMST ANCES OF THE CASE, I AM OF THE OPINION THAT THE ASSESSING OFFICER IS FUL LY JUSTIFIED IN MAKING THE ADDITION OF RS.2,22,600/- TO THE RETURNED INCOME OF THE ASSESSEE. THUS, THE ADDITION OF RS.2,22,600/- MADE BY THE ASSESSING OFF ICER IS UPHELD. IN THE RESULT, GROUND NO. (C) OF APPEAL TAKEN BY THE ASSES SEE IS ALSO DISMISSED. 8. A PERUSAL OF THE AFOREEXTRACTED RELEVANT PORTION OF THE IMPUGNED ORDER MAKES IT CLEAR THAT THE ABOVE OBJECTIONS OF THE ASS ESSEE HAVE NOWHERE BEEN DEALT 6 ITA NO.573 (ASR)/2014 ASST. YEAR 2005-06 WITH BY THE LEARNED CIT(A), RENDERING THE ORDER UND ER APPEAL A NON SPEAKING ORDER AND THUS UNSUSTANABLE IN LAW, AS IT STANDS. 9. IN THE ABOVE VIEW OF THE MATTER, I DEEM IT APPRO PRIATE, IN THE INTEREST OF JUSTICE, TO REMIT THIS MATTER TO THE FILE OF THE LE ARNED CIT(A), TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, BY PASSING A SPEAKING ORDER , ON ALLOWING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. BOTH THE PA RTIES ARE MUTUALLY AGREED TO THIS RECOURSE BEING ADOPTED. ORDERED ACCORDINGLY . 10. IN THE RESULT, FOR STATISTICAL PURPOSES, THE AP PEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 .06.2015. SD/- (A.D. JAIN) JUDICIAL MEMBER DATED: 23.06.2015 /PK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SMT. SHAMA RANI, W/O SH. DAVINDER SEHGAL GALI JULAN HIAN, KAPURTHALA, JALANDHAR . 2. THE INCOME TAX OFFICER, WARD-II, KAPURTHALA . 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSA