Pushpender, New Delhi V. ITO, War5d-2(4), Noida

ITA 5861/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9769 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 11-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Additional evidence
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.5861/DEL/2018 ASSESSMENT YEAR: 2009-10 PUSHPENDER, C/O S. CHATURVEDI & ASSOCIATES, 305, DEEP SHIKHA, RAJENDRA PLACE, NEW DELHI. PAN: AYLPP1362P VS. ITO, WARD-2(4), NOIDA. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI S.L. ANURAGI, SR. DR DATE OF HEARING : 01.07.2019 DATE OF PRONOUNCEMENT : 02.07.2019 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 31 ST MAY, 2018 OF THE CIT(A)-1, NEW DELHI, RELATING TO ASSESS MENT YEAR 2009-10. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THEREFORE, THIS APPEAL IS BEING DISPOSED OF ON THE BASIS OF TH E MATERIAL AVAILABLE ON RECORD INCLUDING THE WRITTEN SYNOPSIS FILED BY THE ASSESSE E ON THE EARLIER OCCASION AND AFTER HEARING THE LD. DR. ITA NO.5861/DEL/2018 2 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND HAD NOT FILED ANY RETURN OF INCOME. ON THE BASIS OF THE AIR INFO RMATION THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.15,61,000/- IN THE SAVINGS BAN K ACCOUNT MAINTAINED WITH MAHAMEDHA URBAN CO-OPERATIVE BANK LTD. DURING THE F INANCIAL YEAR 2008-09, THE ASSESSING OFFICER ISSUED VERIFICATION LETTER TO THE ASSESSEE. SINCE THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE, THE ASSES SING OFFICER INITIATED PROCEEDINGS U/S 147 OF THE IT ACT. AGAIN, THERE WAS NO COMPLIA NCE FOR WHICH THE ASSESSING OFFICER ISSUED STATUTORY NOTICE U/S 142(1). AGAIN, THERE WAS NON-COMPLIANCE. THEREFORE, THE ASSESSING OFFICER COMPLETED THE ASSE SSMENT U/S 144/147 DETERMINING THE TOTAL INCOME AT RS.15,61,000/-. 4. BEFORE THE CIT(A), THE ASSESSEE CHALLENGED THE V ALIDITY OF THE NOTICE ISSUED U/S 148 ON THE GROUND THAT SUCH NOTICE WAS NEVER SERVED ON THE ASSESSEE AS THE ADDRESS OF THE ASSESSEE WAS INCORRECTLY MENTIONED IN THE SAID NOTICE. CERTAIN ADDITIONAL EVIDENCES WERE ALSO FILED WHICH WERE FORWARDED TO T HE ASSESSING OFFICER FOR A REPORT FROM HIS SIDE. THE ASSESSING OFFICER CONTESTED SUC H ADDITIONAL EVIDENCES FILED. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE, THE LD.C IT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER DIRECTING HIM TO ISSUE FRE SH NOTICE U/S 148 AS PER THE ADDRESS GIVEN IN FORM NO.35 AND ALSO AS PER THE PAN APPLICA TION FORM AS PER LAW. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. ITA NO.5861/DEL/2018 3 6. I HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD AND HEARD THE LD. DR. A PERUSAL OF THE RECORD SHOWS THAT ON THE EARLIER OCCASION TH E ASSESSEE HAD CONTESTED IN HIS WRITTEN SYNOPSIS THE LIMITATION FOR ISSUANCE OF NO TICE U/S 148 WHICH LAPSED ON 31.03.2016 FOR ASSESSMENT YEAR 2009-10. HOWEVER, AS PER SECTION 150(2), THE NOTICE CANNOT BE ISSUED BECAUSE ON THE DATE OF ASSE SSMENT ORDER (ORDER SUBJECT MATTER OF APPEAL BEFORE CIT(A) WAS OF 29.11.2016), ON 29.11.2016 SECTION 149 DOES NOT PERMIT THE ISSUANCE OF NOTICE U/S 148 BECA USE THE TIME LIMITATION HAS ALREADY LAPSED ON 31.3.2016. 7. IT HAS FURTHER BEEN MENTIONED THAT THE CIT(A) HA S TRANSGRESSED THE POWER GIVEN TO HIM U/S 251 BY GIVING DIRECTION TO AO TO I SSUE FRESH NOTICE U/S 148 AND FRAME A FRESH ASSESSMENT. HOWEVER, THE POWER OF CIT(A) FO R SETTING ASIDE THE ASSESSMENT HAVE BEEN WITHDRAWN SINCE 1.6. 2001 . 8. IT IS THE SUBMISSION OF THE LD. DR THAT SINCE TH E APPEAL FILED BY THE ASSESSEE HAS INDIRECTLY BEEN ALLOWED BY THE CIT(A) BY DELETING T HE ADDITION, THEREFORE, THE ASSESSEE SHOULD NOT HAVE ANY GRIEVANCE. IN MY OPINION, THE ADDITION MADE BY THE ASSESSING OFFICER HAS ALREADY BEEN DELETED BY THE CIT(A). HE HAS ONLY GIVEN A DIRECTION TO THE ASSESSING OFFICER TO ISSUE NOTICE U/S 148 AFRESH ON THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO.35. IF THE SAME IS NOT WITHIN THE PRESCRIB ED TIME LIMIT, THE ASSESSEE CAN ALWAYS CHALLENGE THE VALIDITY OF SUCH REOPENING BEF ORE APPROPRIATE FORUM AT APPROPRIATE TIME. HOWEVER, IN MY OPINION, THE PRESE NT APPEAL IS NOT MAINTAINABLE SINCE ITA NO.5861/DEL/2018 4 THE LD.CIT(A) HAS ALREADY DELETED THE ADDITION. TH EREFORE, THIS APPEAL FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS. ACCORDINGLY, THE SAME IS DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS DISMISSED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 0 2.07.2019. SD/- ( R.K. PANDA) ACCOUNTANT MEMFBE R DATED: 02 ND JULY, 2019 DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI