Ruchi Goyal, Agra V. ITO, New Delhi

ITA 5781/DEL/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6496 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 07-03-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 29-10-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PRABHAT KHANDELWAL; TAXING
• Keywords: Invalid notice; Income from undisclosed sources; Opportunity of being heard; Principle of natural justice; Difference of opinion; Accommodation entries; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 251

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO.5781/DEL./2013 (ASSESSMENT YEAR : 2002-03) MS. RUCHI GOYAL, VS. INCOME TAX OFFICER, 22, NEHRU NAGAR, WARD 27 (2), AGRA 282 002 (UP). NEW DELHI. (PAN : ABPPR8909K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRABHAT KHANDELWAL, CA REVENUE BY : SHRI F.R. MEENA, SENIOR DR DATE OF HEARING : 07.03.2017 DATE OF ORDER : 09.03.2017 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, MS. RUCHI GOYAL (HEREINAFTER REFERR ED TO AS THE ASSESSEE) BY FILING THE AFORESAID APPEAL SOUG HT TO SET ASIDE THE ORDER DATED 16.01.2012 PASSED BY THE COMMISSIONER O F INCOME-TAX (APPEALS)-XIX, NEW DELHI QUA THE ASSESSMENT YEAR 20 02-03ON THE GROUNDS INTER ALIA THAT :- 1. THAT THE LEARNED CIT (APPEAL) HAS WRONGLY MADE THE ASSESSMENT BY INVOKING THE PROVISIONS OF SECTION 147 WHEN THE SAME ARE NOT APPLICABLE ON THE FACTS OF THE CASE. ITA NO.5781/DEL./2013 2 2. THAT THE NOTICE U/S 148 HAS BEEN ISSUED BY AN INCOME TAX OFFICER OF AGRA WHO WAS NOT HAVING ANY JURISDICTION IN THE MATTER AND THEREFORE ASSESSMENT MADE ON THE BASIS OF INVALID NOTICE U/S 148 BY THIS LEARNED ASSESSING OFFICER IS BAD IN LAW AND LIABLE TO BE QUASHED AND ANNULLED. 3. THAT THE ASSESSMENT COULD NOT HAVE BEEN RE- OPENED U/S 147/148 AS NO REASONS HAVE BEEN RECORDED BY THIS ASSESSING OFFICER TO ESTABLISH ANY SATISFACTION ON HIS PART THAT ANY INCOME BELONGING TO THE APPELLANT HAS ESCAPED ASSESSMENT. 4. THAT THE PROCEEDINGS UNDER SECTION 147/148 ARE BAD IN LAW AS NO PRIOR APPROVAL AS REQUIRED UNDER SECTION 151 HAS BEEN OBTAINED BY THIS ASSESSING OFFICER. 5. THAT SINCE NOTICE U/S 148 WAS NOT ISSUED BY THE LEARNED ASSESSING OFFICER, THE ORDER HAS BEEN PASSED WITHOUT PROPER JURISDICTION AND HENCE THE ASSESSMENT IS VOID AND BAD IN LAW. 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) XIX HAS ERRED IN LAW & FACT IN FRAMING EX PARTY ORDER. 7. THAT THE LD. CIT (APPEAL) ACTION IS BEING CHALLENGED ON FACTS AND LAW FOR DISMISSING THE APPEAL EX-PARTY WHICH IS NOT ACCORDING TO THE PROVISIONS OF SECTION 251 OF THE INCOME TAX ACT, 1961, WHEREBY THE ASSESSEE HAS NOT RECEIVED ANY NOTICE FOR APPEARANCES. 8. THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE F OR APPEARING BEFORE THE CIT APPEALS AND THE NATURAL JUSTICE DEMANDS THAT PROPER OPPORTUNITY SHOULD BE GIVEN BEFORE APPEAL IS DECIDED. 9. THAT THE CIT APPEAL SHOULD HAVE DECIDED THE APPEAL ON MERITS EVEN IN EX PARTY JUDGEMENTS. ITA NO.5781/DEL./2013 3 CIT APPEAL HAS NOT DISCUSSED ANY GROUND OF APPEAL ON MERITS, WHICH IS WRONG. 10. THAT THE LEARNED ASSESSING OFFICER HAS NOT BROUGHT ON RECORD WHETHER SUCH CAPITAL GAIN WERE A SHAM TRANSACTION AND HAVE NOT PROVED ANY LINKAGE WITH THE TRANSACTION OF THE ASSESSEE WHICH COULD FURTHER PROVE THAT THE ASSESSEE'S TRANSACTIONS WERE BOGUS AND SHAM TRANSACTION. THE ASSESSING OFFICER HAS ALSO FAILED TO TAKE COGNIZANCE OF EVIDENCE AND DETAILS FILED BY THE ASSESSEE IN SUPPORT OF TRANSACTIONS TAKEN PLACE WITH AAYUSHI STOCK BROKERS PVT. LTD. REGARDING SALE OF SHARES. 11. THAT THE LEARNED ASSESSING OFFICER HAS ERRED ON FACTS AND IN LAW IN MAKING AN ADDITION OF RS.1446786/- AS ACCOMMODATION ENTRIES UNDER THE HEAD INCOME FROM OTHER SOURCES IS NOT JUSTIFIED IN FACT OF LAW. BEING WHOLLY BASED ON CONJECTURE AND SURMISES AND BEING UNTRUE, THE SAME MUST BE DELETED. 12. THAT THE LEARNED ASSESSING OFFICER HAS NOT GIVE N PROPER OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND HAS NOT CONFRONTED THE APPELLANT WITH THE MATERIAL COLLECTED BEHIND THE BACK OF THE APPELLANT UPON WHICH THE ASSESSING OFFICER HAS RELIED IN MAKING THE ADDITIONS. THE ASSESSMENT ORDER IS THEREFORE ILLEGAL BEING IN VIOLATION OF TH E PRINCIPLES OF NATURAL JUSTICE. 13. THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN COMPUTING THE INCOME OF THE ASSESSEE BY TAXING THE SAME INCOME TWICE I.E. ONE BY TREATING AS CAPITAL GAIN AND ANOTHER BY TREATING AS ACCOMMODATION ENTRIES RECEIVED FROM BROKER AGAINST SALE OF SHARES. 14. THAT THE PENAL ACTION INITIATED U/S 271(L)(C) O F THE INCOME TAX ACT, 1961 IS LIABLE TO BE QUASHED ACCORDINGLY BECAUSE THE ASSESSEE NEITHER FAILED TO FURNISH ACCURATE PARTICULARS OF INCOME NOR ITA NO.5781/DEL./2013 4 CONCEALED ANY INCOME. ALL THE ADDITIONS MADE BY ASSESSING OFFICER ARE ON THE BASIS OF DIFFERENCE OF OPINION. 15. THAT THE IMPUGNED ASSESSMENT ORDER IS ARBITRAR Y, ILLEGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES OF CONTEMPORARY JURISPRUDENCE. 2. BRIEFLY STATED THE FACTS OF THIS CASE ARE : ASSE SSING OFFICER ON RECEIVING INFORMATION FROM THE INVESTIGATION WING O F THE REVENUE DEPARTMENT THAT THE ASSESSEE COMPANY HAS TAKEN ACCO MMODATION ENTRY TO THE TUNE OF RS.14,46,785/- FROM M/S. AYUSH I STOCK BROKERS (P) LTD., INITIATED PROCEEDINGS U/S 148 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) BY ISSUING NOTICE O N 27.03.2009. SHRI PRASHANT KHANDELWAL, CA ATTENDED THE PROCEEDIN GS AND FILED DETAILS BUT HAS FAILED TO BROUGHT ON RECORD ANY EVI DENCE FOR SALE AND PURCHASE OF EQUITY SHARES AND CONSEQUENTLY AO D ISBELIEVED THE RECEIPT OF AMOUNT OF RS.14,46,785/- FROM M/S. AYUSH I STOCK BROKERS (P) LTD. AND MADE AN ADDITION THEREOF TO TH E INCOME OF THE ASSESSEE BY COMPLETING THE ASSESSMENT U/S 147/143 ( 3) OF THE ACT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING THE APPEAL BEFORE THE LD. CIT (A) WHO HAS DISMISSED THE APPEAL . FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIB UNAL BY WAY OF FILING THE PRESENT APPEAL. ITA NO.5781/DEL./2013 5 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. LD. CIT (A) DISMISSED THE APPEAL FILED BY THE AS SESSEE BY MAKING THE FOLLOWING OBSERVATIONS :- 6.7 SINCE MORE THAN ENOUGH OPPORTUNITY WAS GIVEN AND THE APPELLANT HAS CHOSEN NOT TO APPEAR OR TO FI LE ANY WRITTEN SUBMISSIONS, THE APPEAL IS BEING DECIDED ON MERITS ON THE BASIS OF THE GROUNDS OF APPEAL AND TH E MATERIAL AVAILABLE ON RECORD. 7. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE GROUNDS OF APPEAL. 8. FROM THE REASONS RECORDED, IT IS VERY CLEAR THAT THE ASSESSEE HAS BEEN INTRODUCING UNACCOUNTED INCOME IN THE SHAPE OF ACCOMMODATION ENTRIES AS DISCUSSED BY THE AO IN THE ASSESSMENT ORDER WHICH IS REPRODUCED IN PARA 4 ABOVE. AFTER CAREFUL CONSIDERATION OF THE FACTS OF THE CASE, THERE IS CLEAR CASE FOR REOPENING OF THE ASSE SSMENT. ACCORDINGLY, VALIDITY OF REASSESSMENT IS UPHELD. 6. BARE PERUSAL OF THE FINDINGS RETURNED BY LD. CIT (A) AND SPECIFIC GROUNDS RAISED BY THE ASSESSEE, PARTICULAR LY GROUNDS NO.8 & 9 SHOW THAT NO ADEQUATE OPPORTUNITY OF BEING HEAR D HAS BEEN PROVIDED TO THE ASSESSEE BY LD. CIT (A) NOR DECIDED THE APPEAL ON MERITS RATHER REITERATED THE FINDINGS RETURNED BY T HE AO. THE ORDER PASSED BY A QUASI-JUDICIAL AUTHORITY BY NOT PROVIDI NG AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE AGGRIEVED PARTY I S NOT SUSTAINABLE ITA NO.5781/DEL./2013 6 IN THE EYES OF LAW AND MORE SO, THE ORDER PASSED BY THE LD. CIT (A) IS CRYPTIC ONE. SO, WE ARE OF THE CONSIDERED VIEW THAT THE MATTER BE RESTORED TO THE LD. CIT (A) TO DECIDE AFRESH ON MER ITS AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. CONSEQUENTLY, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 9 TH DAY OF MARCH, 2017. SD/- SD/- (ANADEE NATH MISSHRA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 9 TH DAY OF MARCH, 2017 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-XIX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.