Kiranwati , Gautam Budh Nagar V. ITO, Ward- 2(1), Noida

ITA 5870/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3771 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV PUNDIR
• Keywords: Principle of natural justice
• Section: 142(1); 143(2); 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, SMC: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.5870/DEL/2019 ASSESSMENT YEAR : 2009-10 SMT. KIRANWATI, W/O-SH. RAJBEER NAGAR, VILL-NAWADA, NEAR DANKOR, TAHSIL SADAR GR. NOIDA, G.B. NAGAR-201001 VS INCOME TAX OFFICER, WARD-2(1), A2D, SECTOR-24, NOIDA PAN-EUUPK1814G APPELLANT RESPONDENT APPELLANT BY SH. RAGHURAJ SINGH, ADV. RESPONDENT BY SH. GAURAV PUNDIR, SR. DR DATE OF HEARING 24.08 .2021 DATE OF PRONOUNCEMENT 11 . 10 .2021 ORDER PER KUL BHARAT, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-I, NOIDA DATED 31.12.2018 PERTAINING TO ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS RAISED FOLLOWING G ROUNDS OF APPEAL:- 1. THAT THE IMPUGNED ASSESSMENT ORDER PASSED BY THE HONBLE CIT (A) IS BAD IN LAW, WRONG ON FACTS A ND ITA NO. 5870/DEL/2019 2 | P A GE AGAINST THE PRINCIPAL OF NATURAL JUSTICES HENCE IS UNSUSTAINABLE. 2. THAT THE IMPUGNED ASSESSMENT ORDER PASSED BY THE HONBLE CIT (A) IS WRONG, HAVING NO BASE AND AGAINST THE CIRCUMSTANCE OF THE CASE. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSING OFFICER HAD ERRED IN ASSESSIN G THE INCOME TAX OF THE APPELLANT AT RS. 10,21,510, PLEASE BE DELETED. 4. THAT THE LD. ASSESSING OFFICER HAD ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN MAKING AN ADDITION ON ACCOUNT OF CASH DEPOSIT BY TH E ASSESSEE OF RS. 14,00,000.00, BEING WHOLLY BASED ON CONJECTURE AND SURMISES AND BEING UNTRUE, THE SAME MUST BE DELETED. 5. THE ADDITION MADE BY THE A.O. IS DEVOID OF ANY MERITS AND IS AWAY FROM THE FACTUAL MATRIX. THE SUBMISSION IS NOT MADE BY THE ASSESSEE. THE CASH RECEIVED AGAINST EARLIER SOLD AGRICULTURE LAND BY ASSSEESES HUSBAND OF RS 19 LAC DT 30/01/2009. THE ASSESSES HUSBAND DOES NOT MAINTAIN ANY BANK ACCOUNT AND THE SAME SALE CONSIDERATION RECEIVED IN CASH MODE WHICH WAS DEPOSITED IN ASSESSEE ACCOUNT. THEREFORE, THERE CANNOT BE ANY TAX LIABILI TY AND THE SAID CASH DEPOSITED EXPLAINED AS U/S 68 OF INCOME TAX- ACT 1961. 6. THAT THE IMPUGNED ASSESSMENT ORDER IS ARBITRARY, ILLEGAL, BAD IN LAW IN VIOLATION OF RUDIMENTARY PRINCIPAL OF CONTEMPORARY JURISPRUDENCE . 7. THAT THE PROVISIONS OF SECTION 271(1) (C) IS NOT JUSTIFY THE CASE OF THE APPLICANT. 8. THAT THE IMPUGNED ASSESSMENT ORDER PASSED BY LD. ASSESSING OFFICER, NOIDA IS A CLEAR CUT CASE OF MISUNDERSTANDING AND WRONG INTERPRETATION OF LAW. 2. IT IS THE SECOND ROUND OF LITIGATION. IN THE EAR LIER ROUND, THE TRIBUNAL WAS PLEASED TO SET-ASIDE THE GROUNDS TO THE LD. CIT(A) ITA NO. 5870/DEL/2019 3 | P A GE TO DECIDE AFRESH, HOWEVER, THE LD. CIT(A) AGAIN DIS MISSED THE APPEAL ON THE TECHNICAL GROUND BY OBSERVING AS UNDE R:- 103. HOWEVER, IN THE INSTANT CASE, THE APPEAL OF THE APPELLANT CANNOT BE ADMITTED BECAUSE OF NON-COMPLIA NCE OF THE MANDATORY PROVISIONS OF SECTION 249(4)(A) OF I.T. ACT, 1961 AND FOR FURTHER NON-COMPLIANCE OF THE PRO VISIONS OF SECTION 249(4)(B) OF I.T. ACT, 1961 AND THEREFOR E THE ISSUE REGARDING MERITS OF THE CASE OR NON-COMPLIANC E OF THE MANDATORY PROCEDURE BY LD.AO ALSO CANNOT BE CONSIDERED IN THE PRESENT APPEAL AS LEGALLY SPEAKIN G THERE IS A CASE OF NON APPEAL BEFORE THIS OFFICE. 3. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY OPP OSED THE FINDINGS OF THE LD. CIT(A) AND SUBMITTED THAT T HE LD. CIT(A) HAS WRITTEN THESIS BUT IGNORED THE DETAILS TO ADJUDI CATE THE ISSUE ON MERIT. HE SUBMITTED THAT THE ISSUE IS WITH REGARD TO THE DEPOSIT OF CASH IN THE ACCOUNT OF THE ASSESSEE AMOU NTING TO RS.14 LAKHS. HE SUBMITTED THAT THE EXPLANATION OF T HE ASSESSEE BEFORE THE LOWER AUTHORITIES WAS THAT THE ASSESSEES HUSBAND SOLD AGRICULTURAL LAND ON 30.01.2009 OF RS.19 LAKHS . SINCE, HER HUSBAND DID NOT MAINTAIN ANY BANK ACCOUNT; THE SALE CONSIDERATION RECEIVED IN CASH WAS DEPOSITED IN ASSE SSEES BANK ACCOUNT. THE ASSESSEE WAS NEITHER OWNER OF THE SALE CONSIDERATION NOR SUCH AMOUNT WAS FROM ANY UNDISCLOS ED SOURCES. HE CONTENDED THAT THE ASSESSEE BEING AN ILLITERATE ITA NO. 5870/DEL/2019 4 | P A GE LADY WAS NOT CONVERSANT TO THE TAX LAWS. THE LD. CO UNSEL FOR THE ASSESSEE POINTED OUT THAT THE ASSESSING OFFICER MAD E ADDITION BY OBSERVING THAT THE ASSESSEE HAS AGAIN FAILED TO MAKE ANY COMPLIANCE AFTER SUFFICIENT OPPORTUNITY WAS PROVIDE D TO THE ASSESSEE BY THE DEPARTMENT. AS THE MATTER BEING TIM E BARING, NOW THERE IS NO OTHER OPTION BUT TO COMPLETE ASSESS MENT EX-PARTE U/S 144/147 OF I.T. ACT, 1961, ON THE BASIS OF FACT S AVAILABLE ON RECORD. HENCE, THE ASSESSING OFFICER PROCEEDED EX-PARTE AGAINST THE ASSESSEE. HE SUBMITTED THAT THE LD. CI T(A) DISMISSED THE APPEAL PURELY RELYING ON THE PROVISIO NS OF SECTION 249(4)(A) OF THE I.T. ACT AND FOR FURTHER NON-COMPL IANCE OF THE PROVISIONS OF SECTION 249(4)(B) OF THE I.T. ACT. IT WAS FURTHER CONTENDED THAT THE ASSESSMENT ORDER IS EX-FACIE ILLEGAL AND BAD IN LAW AS THE LD. CIT(A) HIMSELF HAD RECORDED IN THE IMPUGNED ORDER THAT THE ASSESSING OFFICER FAILED TO ASSUMED PROPER JURISDICTION AS NO NOTICE U/S 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. HE CONTENDED THAT THE ASSESSMENT ORD ER OUGHT TO HAVE BEEN QUASHED ON THIS GROUND ALSO. 4. PER CONTRA, THE LD. DR OPPOSED THE SUBMISSIONS OF THE ASSESSEE AND SUPPORTED THE ORDER OF THE LD. CIT (A). ITA NO. 5870/DEL/2019 5 | P A GE 5. I HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE RECORDS. WE FIND THAT THE LD. CIT(A) HAS GIVEN FIN DING ON FACTS IN PARA 8 AS UNDER:- 8. HOWEVER, IT APPEARS THAT THE LD. ASSESSING OFFI CER HAS ALSO NOT ASSUMED JURISDICTION U/S 143(2) OF I.T . ACT, 1961 BEFORE PROCEEDING TO FRAME THE IMPUGNED ASSESSMENT ORDER AND WHICH IS MANDATORY UNDER THE LAW AND AS PER THE LAW LAID DOWN BY THE JURISDICTIO NAL HIGH COURT BEING THE HONBLE HIGH COURT OF JUDICATU RE AT ALLAHABAD. THE APPELLANT HAS WAIVED HIS RIGHTS FOR GETTING NOTICE U/S 143(2) OF I.T. ACT, 1961 AND HAS NOT PLEADED THAT THE APPEAL OF THE APPELLANT BE DECIDED QUA MERITS OF THE CASE IGNORING THE ISSUE OF NON-COMPLI ANCE OF DUE PROCEDURE BY THE LD. A.O. TO FRAME THE IMPUG NED ASSESSMENT. HOWEVER, THIS ISSUE OF NON-ASSUMPTION O F DUE JURISDICTION BY THE LD. A.O. CAN BE CONSIDERED & DECIDED ONLY IN AN ADMITTED APPEAL & THE ISSUE OF ADMISSION OF AN APPEAL NEEDS TO BE DECIDED BY THIS OFFICE BEFORE TAKING UP & CONSIDERING THE ISSUE OF NON- ISSUANCE OF NOTICE U/S 143(2) OF I.T. ACT, 1961 AND THE CORRECTNESS OR OTHERWISE OF THE IMPUGNED ASSESSMENT ORDER IS TO BE ADJUDICATED BY THIS OFFICE QUA THE MAINTAINABILITY OF THE APPEAL & THE MERITS OF THE C ASE. 6. THE REVENUE HAS NOT REBUTTED THE FINDING THAT N O NOTICE U/S 143(2) WAS ISSUED. I HAVE ALSO GONE THROU GH THE ASSESSMENT ORDER. THE ASSESSING OFFICER HAS SIMPLY STATED THAT THE NOTICE U/S 148 OF THE ACT WAS ISSUED ON 23.03.20 16 AFTER RECORDING THE REASONS PLACED ON RECORD, CONSEQUENTL Y; NOTICE U/S 142(1) WAS ISSUED ON 21.07.2016. FROM THE ASSES SMENT ORDER, IT IS CLEAR THAT NO NOTICE U/S 143(2) WAS IS SUED WHICH IS ITA NO. 5870/DEL/2019 6 | P A GE MANDATORY CONDITION FOR FRAMING THE ASSESSMENT U/S 147 OF THE ACT. THEREFORE, THE ASSESSMENT WAS FRAMED IS WITHOUT AUTHORITY OF LAW. I, THEREFORE, HOLD THAT THE ASSESSMENT IS BAD IN LAW AND THE SAME IS HEREBY QUASHED. AS I HAVE QUASHED THE ASSESSMENT ORDER ON THE GROUND THAT NO NOTICE U/S 143(2) WAS IS SUED, THE OTHER GROUNDS ON MERIT HAVE BECOME OF ACADEMIC IN N ATURE, HENCE NOT ADJUDICATED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 11.10.20 21. SD/- (R.K.PANDA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER F{X~{T COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI