Shri Raj Kumar Suneja, New Delhi V. ITO, New Delhi

ITA 5867/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77737 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-06-2017
• Assessment Year: 1999-2000
• Appeal Filed On: 22-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Assessee Lawyers: VIRENDER CHAUHAN
• Keywords: Opportunity of being heard; Accommodation entries
• Section: 147; 148

Judgement Text

ITA NOS. 5867 &586 8/DEL/12 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NOS.-5867/DEL/2012 (ASSESSMENT YEAR-1999-2000) RAJ KUMAR SUNEJA C/O M/S ARUN VIRANDER & CO., CA 5C/9, 11ND FLOOR, OPP. LIBERTY CINEMA, NEW ROHTAK ROAD NEW DELHI PAN: AARPS7402F (APPELLANT) VS ITO WARD 30 (3) NEW DELHI (RESPONDENT) I.T.A .NOS.-5868/DEL/2012 (ASSESSMENT YEAR-1999-2000) RAJIV KUMAR SUNEJA C/O M/S ARUN VIRANDER & CO., CA 5C/9, 11ND FLOOR, OPP. LIBERTY CINEMA, NEW ROHTAK ROAD NEW DELHI PAN: AARPS7399P (APPELLANT) VS ITO WARD 30 (3) NEW DELHI (RESPONDENT) APPELLANT BY: SH. VIRENDER CHAUHAN, C.A RESPONDENT BY: SH. GAGAN SOOD, SR. DR ORDER PER DIVA SINGH, JM BOTH THESE APPEALS ARE BEING DECIDED BY A COMMON OR DER FOR THE SAKE OF CONVENIENCE. THE TWO APPEALS HAVE BEEN FILED BY TW O DIFFERENT ASSESSEES AGAINST SEPARATE ORDERS DATED 16/10/2012 OF CIT(A) XXV, NEW DELHI PERTAINING TO 1999- ITA NOS. 5867 &586 8/DEL/12 2 2000 ASSESSMENT YEAR WHEREIN THE SOLE ISSUE ARGUED WAS GROUND NO. 1 IN BOTH THE APPEALS WHICH IS IDENTICAL. THE SAME IS REPRODUCED HEREUNDER FOR READY REFERENCE:- THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW, THE HONBLE CIT(A) HAS GROSSLY ERRED WHILE NOT DISPOSING-OFF GROUNDS OF AP PEAL AT S. NOS. 3,4,5,6,7,8,11, & 12. THEREFORE, THE ORDERS PASSED AS SUCH MAY BE LIABLE TO BE SET-ASIDE. 2. REFERRING TO THE FACTS AS RECORDED IN THE CASE O F RAJEEV KUMAR SUNEJA, IT IS SEEN THAT THE AO FORMED THE BELIEF THAT THE ASSESS EE WAS ENGAGED IN OBTAINING BOGUS ENTRIES WORTH RS.1,34,895/- FROM M/S BATRA IN VESTMENTS. AS A RESULT OF WHICH HE MADE THE ADDITION OF THE SAID AMOUNT VIDE ORDER U/S 143/147. THE ASSESSMENT ORDER WAS CHALLENGED IN APPEAL BEFORE TH E CIT(A) WHO CONSIDERING THE GROUNDS RAISED BEFORE HIM WAS OF THE OPINION THAT T HEY WERE GENERAL AND NON- SPECIFIC. FOR READY-REFERENCE WE REPRODUCE PARA 4 HEREUNDER:- 4. THE ASSESSEE HAS TAKEN AS MANY AS 9 GROUNDS OF APPEAL WHICH ARE NON-SPECIFIC AND GENERAL IN NATURE. THE ASSESSEE HAS FILED THE FRESH GROUND OF APPEAL WHICH ARE 14 IN NUMBERS WHICH ARE ALSO AGAIN NON-SPECIFIC AND GENER AL IN NATURE. A PERUSAL OF THE GROUND OF APPEALS SHOWS THAT THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST THE REOPENING PROCEEDINGS AND THE ADDITION MADE BY THE AO, WHICH ARE ADJUDICATED ACCORDINGLY. 3. IT IS SEEN THAT BEFORE THE CIT(A) THE FOLLOWING SPECIFIC GROUNDS HAD BEEN RAISED AS REVISED GROUNDS:- 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. AO HAS GROSSLY ERRED IN LAW AND ON FACTS IN FRAMING THE IM PUGNED ASSESSMENT U/S 143(3)/147 AND THAT TOO WITHOUT SERVING MANDATORY N OTICE U/S. 148 WITHIN THE STATUTORY ALLOWABLE PERIOD. THEREFORE, THE ASSESSM ENT COMPLETED AS SUCH MAY BE HELD AB-INITIO INVALID. 4. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS GROSSLY ERRED WHILE MAKING ADDITIONS WITHOUT CONSIDERING TH E MATERIAL ON RECORD; THEREFORE, THE ADDITIONS MADE AS SUCH FOR GROUNDS OF APPEALS N O. 1 MAY BE LIABLE TO BE DELETED. 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS GROSSLY ERRED WHILE MAKING ADDITIONS WITHOUT GIVING SAN OPP ORTUNITY OF BEING HEARD, THEREFORE, THE ADDITIONS MADE AS SUCH AS PER GROUND S OF APPEALS NO. 1 MAY BE LIABLE TO BE DELETED. 6. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS GROSSLY ERRED WHILE MAKING ADDITIONS WITHOUT PROVIDING THE MATERIAL TO APPELLANT COLLECTED ON ITA NOS. 5867 &586 8/DEL/12 3 THE BACK OF IT, THEREFORE, THE ADDITIONS MADE AS SU CH AS PER GROUNDS OF APPEALS NO. 1 MAY BE LIABLE TO BE DELETED. 7. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS GROSSLY ERRED WHILE MAKING ADDITIONS WITHOUT PROVIDING THE OPPORTUNITY OF CROSS-EXAMINATION OF THE PARTIES WHO WERE EXAMINED BY THE LD. AO ON T HE BACK OF IT, THEREFORE, THE ADDITIONS MADE AS SUCH AS PER GROUNDS OF APPEALS NO . 1 MAY BE LIABLE TO BE DELETED. 8. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS GROSSLY ERRED WHILE MAKING ADDITIONS WITHOUT FINDING ANY MA TERIAL AGAINST THE APPELLANT IN THE BOOKS OF ACCOUNTS EXAMINED BY HIM AND WITHOUT A SSIGNING COGENT REASONS, THEREFORE, THE ADDITIONS MADE AS SUCH AS PER GROUND S OF APPEALS NO. 1 MAY BE LIABLE TO BE DELETED. 11. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS GROSSLY ERRED WHILE INVOKING SECTION 147 WITHOUT FIRST HAVI NG DISPOSED OFF THE CASE UNDER SECTIONS 143(1)/143(3) ETC. AS THE SAME FACT COULD NOT FIND A MENTIONED IN THE ASSESSMENT ORDERS. AS SUCH THE ORDERS PASSED MAY BE LIABLE TO BE QUASHED AND ADDITIONS MADE AS SUCH AS PER GROUNDS OF APPEALS NO . 1 MAY BE LIABLE TO BE DELETED. 12. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS GROSSLY ERRED WHILE INVOKING SECTION 147 WITHOUT FIRST HAVI NG STATUTORY REQUIREMENT OF SECTION 151(2) REGARDING THE SATISFACTION OF THE HONBLE JO INT COMMISSIONER OF INCOME TAX, AS THE SAME IS ABSENT IN THE FILE HAVING NO COMMENT AND SEAL OF THE HONBLE OFFICER. AS SUCH THE ORDERS PASSED MAY BE LIABLE TO BE QUASH ED AND ADDITIONS MADE AS SUCH AS PER GROUNDS OF APPEALS NO. 1 MAY BE LIABLE TO BE DE LETED. 4. ON A PERUSAL OF THE IMPUGNED ORDER IT IS SEEN TH AT VARIOUS LEGAL PROPOSITIONS HAVE BEEN DISCUSSED BY THE CIT(A), HOWEVER, THE SPE CIFIC CHALLENGE POSED TO THE JURISDICTION OF THE AO VIDE THE ABOVEMENTIONED GROU NDS RAISED BEFORE THE CIT(A) BY WAY OF REVISED ADDITIONAL GROUNDS HAVE NOT BEEN ADJUDICATED UPON. IN THESE PECULIAR FACTS AND CIRCUMSTANCES, CONSIDERING THE G ROUND AGITATED AND THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH IT IS C ONSIDERED APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH THE D IRECTION TO DECIDE THE SAID GROUNDS RAISED BEFORE HIM BY WAY OF A SPEAKING ORDE R IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEI NG HEARD. 5. IT IS SEEN THAT THE ONLY DIFFERENCE IN THE CASE OF RAJ KUMAR SUNEJA IS THAT HEREIN THE ASSESSING OFFICER MADE AN ADDITION OF RS .1,35,625/- CONSIDERED AS ITA NOS. 5867 &586 8/DEL/12 4 BOGUS ACCOMMODATION ENTRIES FROM M/S BATRA INVESTME NT VIDE HIS ORDER U/S 143(3)/147 WHEREIN ALSO BEFORE THE CIT(A) BY WAY OF THE SPECIFIC GROUNDS SIMILAR GROUNDS WERE RAISED WHICH IT WAS ARGUED HAVE NOT BE EN DECIDED BY THE CIT(A) AND AN IDENTICAL REQUEST THAT THE ISSUE MAY BE REST ORED. THIS REQUEST ON CONSIDERATION WAS NOT OPPOSED BY THE DEPARTMENT IN THE PRESENT PROCEEDINGS ALSO. ACCORDINGLY ON A PERUSAL OF THE IMPUGNED ORDER THE CLAIM IS FOUND TO BE CORRECT. THUS ON ACCOUNT OF THESE PECULIAR FACTS AND CIRCUMS TANCES, IN BOTH THE APPEALS CONSIDERING THE ARGUMENTS ADVANCED BY THE RESPECTIV E PARTIES THE ISSUES AGITATED IN THE GROUND NO.1 BEFORE THIS FORUM IS RESTORED BACK TO THE CIT(A) WITH THE DIRECTION TO DECIDE THE SAME BY WAY OF SPEAKING ORD ER IN ACCORDANCE WITH LAW, AFTER GIVING THE ASSESSEE, A REASONABLE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES AT THE TIME OF HEARING ITSELF. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 TH OF MAY 2014. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED:30 /05/2014 *R. NAHEED* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI