ITO, New Delhi V. Ms. Suman Garg, New Delhi

ITA 5950/DEL/2012

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8844 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 06-08-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 29-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S KOHLI
• Assessee Lawyers: P DAM KANUNJHA
• Keywords: Assessment record
• Section: 142(1); 147; 144

Judgement Text

ITA NO.5950/DEL/2012 ASSTT.YEAR: 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES E NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO. 5950/DEL/2012 ASSTT.YEAR: 2004-05 INCOME TAX OFFICER, VS SUMAN GARG, WARD-26(1), V-212, RAJOU RI GARDEN, D-BLOCK, NEW DELHI. VIKAS BHAWAN, (PAN: AESPG3112R) NEW DELHI. C.O. NO. 162/DEL/2013 (IN ITA NO. 5950/DEL/2012) ASSTT.YEAR: 2004-05 SUMAN GARG, VS INCOME TAX OFF ICER, NEW DELHI. WARD 26(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI G.S. KOHLI, CA RESPONDENT BY: SHRI P. DAM KANUNJHA, SR. DR O R D E R PER CHANDRAMOHAN GARG, J.M. THE ABOVE CAPTIONED APPEAL HAS BEEN FILED BY THE R EVENUE AGAINST THE ORDER OF THE CIT(A)-XXIV, NEW DELHI DATED 17.09.201 2 IN APPEAL NO. ITA NO.5950/DEL/2012 ASSTT.YEAR: 2004-05 2 259/10-11 FOR AY 2004-05. THE ASSESSEE HAS ALSO FI LED CROSS OBJECTION TO THE IMPUGNED ORDER OF THE CIT(A). ITA NO. 5950/D/2012 2. THE REVENUE HAS RAISED FOLLOWING SOLE GROUND IN THIS APPEAL:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CI T(A) HAS ERRED IN- (I) QUASHING THE ORDER ON TECHNICAL GROUND OF AO BY NOT APPRECIATING THE FACT THAT THE ASSESSEE HAD NEITHER DURING THE ASSESSMENT PROCEEDINGS WITH THE ITO GOBINDGARH NOR BEFORE THE AO CONCERNED HAD CHALLENGED THE PROCEEDINGS U/S 147/148 OF THE I.T. ACT, 1961. 3. APROPOS AFOREMENTIONED GROUND, WE HAVE HEARD ARG UMENTS OF BOTH THE SIDES. LD. DR SUBMITTED THAT THE CIT(A) HAS ER RED IN QUASHING THE ASSESSMENT ORDER DATED 27.12.2010 PASSED U/S 144/14 7 OF THE INCOME TAX ACT. LD. DR FURTHER CONTENDED THAT THE CIT(A) WAS NOT JUSTIFIED IN IGNORING THE FACT THAT THE ASSESSEE, NEITHER DURING THE ASSE SSMENT PROCEEDINGS WITH THE ITO, MANDI GOBINDGARH NOR BEFORE THE AO CONCERN ED, HAD CHALLENGED THE PROCEEDINGS U/S 147/148 OF THE ACT. LD. DR FIN ALLY PRAYED THAT THE IMPUGNED ORDER OF THE CIT(A) MAY BE SET ASIDE BY RE STORING THAT OF THE AO. 4. LD. AR REPLIED THAT THE FIRST ASSESSMENT U/S 144 /147 WAS FRAMED BY ITO WARD 26(1), NEW DELHI DATED 30.11.2009 FOR AY 2 004-05, MAKING AN ADDITION OF RS.2,50,000/- BEING ACCOMMODATION ENTRY RECEIVED BY THE APPELLANT. THE AR FURTHER SUBMITTED THAT THE REASO NS FOR ISSUE OF NOTICE U/S ITA NO.5950/DEL/2012 ASSTT.YEAR: 2004-05 3 148 WERE RECORDED BY THE ITO, MANDI GOBINDGARH WHO ISSUED NOTICE ON 23.4.2010 AFTER DUE APPROVAL. THE AR FURTHER POINT ED OUT THAT THE ASSESSEE WROTE A LETTER TO ITO, MANDHI GOBINDGARH DATED 14.5 .2010 POINTING OUT TO HIM THAT SHE WAS A REGULAR ASSESSEE OF ITO WARD 26( 1), NEW DELHI AND REQUESTED TO SHIFT THE CASE TO ITO WARD 26(1), NEW DELHI WHO HAD JURISDICTION OVER THE APPELLANT. LD. AR HAS FURTHE R DRAWN OUR ATTENTION TOWARDS OPERATIVE PART OF THE IMPUGNED ORDER AND SU BMITTED THAT NO NEW NOTICE U/S 144(8) OF THE ACT WAS ISSUED BY ITO WARD 26(1), NEW DELHI AND NO REASONS WERE RECORDED U/S 147 OF THE ACT AND THE AO STRAIGHTWAY ISSUED NOTICES U/S 142(1) AND 143(2) OF THE ACT AND PROCEE DED WITH THE ASSESSMENT WHICH WAS FINALISED ON 27.12.2010. LD. AR SUBMITTED THAT THE ASSESSMENT WAS FRAMED BY ITO WITHOUT ACQUIRING JURI SDICTION BY ISSUANCE OF NOTICE U/S 148 OF THE ACT WHICH WAS AN INCURABLE DEFECT AND, THEREFORE, THE CIT(A) WAS QUITE JUSTIFIED IN QUASHING THE NOTI CE U/S 148 OF THE ACT. 5. ON CAREFUL PERUSAL OF ABOVE SUBMISSIONS OF BOTH THE SIDES AND FROM CAREFUL PERUSAL OF THE IMPUGNED ORDER, WE NOTE THAT THE CIT(A) HAS ALLOWED APPEAL OF THE ASSESSEE QUASHING NOTICE U/S 148 OF T HE ACT WITH FOLLOWING CONCLUSION:- 4.2 IN THE PRESENT CASE, THE FIRST ASSESSMENT U/S. 144/147 WAS FRAMED BY ITO WARD 26(1), NEW DELHI ON 30.11.2009 FOR A.Y. 2004-05, MAKING AN ADDITION OF RS.2,50,000/- BEING ACCOMMODATION ENTRY RECEIVED BY THE APPELLANT. THEREAFTER, THE REASONS FOR ISSUE OF NOT ICE U/S. ITA NO.5950/DEL/2012 ASSTT.YEAR: 2004-05 4 148 WERE RECORDED BY ITO, MANDI GOBINDGARH WHO ISSU ED THE NOTICE ON 23.04.2010 AFTER APPROVAL ISSUED BY A DDL. CLT, RANGE MANDI -GOBINDGARH. THEREAFTER, THE ASSESSEE W ROTE A LETTER TO ITO, MANDI GOBINDGARH DATED 14.05.2010, P OINTING OUT TO HIM THAT SHE WAS A REGULAR ASSESSEE OF ITO, WARD 26(1), NEW DELHI AND REQUESTED HIM TO SHIFT THE ABO VE CASE TO ITO, WARD 26(1), NEW DELHI WHO HAD JURISDICTION OVER THE APPELLANT. ACCORDINGLY, THE CASE WAS TRANSFERRE D BY ITO, MANDI GOBINDGARH TO ITO WARD 26(1), NEW DELHI VIDE LETTER NO. ITO/WARD I/MGG/2010-11/13 DATED 13.08.20 10. I HAVE CAREFULLY PERUSED THE ASSESSMENT RECORDS OF THE CASE AND FOUND THAT NO NEW NOTICE U/S. 148 WAS ISSUED BY ITO WARD 26(1), NEW DELHI. HE ALSO DID NOT RECORD ANY R EASONS OF HIS OWN. THE AO STRAIGHT-AWAY ISSUED NOTICE U/S 142(1) AND U/S. 143(2) OF THE ACT AND PROCEEDED WITH THE ASSESSMENT. THE ASSESSMENT WAS FINALIZED ON 27.12.2 010 FOR A.Y. 2004-05 BY ITO WARD 26(1), NEW DELHI. 4.3 THUS, IT IS SEEN THAT THE FACTS OF THE INSTANT CASE ARE EXACTLY SIMILAR TO THOSE OF RAJENDER PRASAD GUPTA (SUPRA)' AND NASEMAN FARMS PVT. LTD. (SUPRA). NOTICE U/S. 14 8 WAS ISSUED BY ITO, MANDI GOBINDGARH, WHO DID NOT HAVE JURISDICTION OVER THE CASE. NO NOTICE U/S 148 WAS I SSUED BY THE JURISDICTIONAL ITO, WARD 26(1), NEW DELHI, WHO HAD ALREADY COMPLETED THE ASSESSMENT ONCE U/S. 144/147 OF THE ACT FOR A.Y. 2004-05 ON 30.11.2009. THUS, THE ASSES SMENT WAS FRAMED BY THE JURISDICTIONAL ITO WITHOUT ACQUIR ING JURISDICTION BY ISSUE OF NOTICE U/S. 148. THIS IS A N INCURABLE DEFECT AND THEREFORE, THE ASSESSMENT FRAMED BY THE AO WITHOUT ISSUE OF PROPER NOTICE U/S. 148 IS VOID AB- INITIO AND IS THEREFORE, QUASHED. 6. IN VIEW OF ABOVE OBSERVATIONS, FINDINGS AND CONC LUSION OF THE CIT(A), WE OBSERVE THAT THE CIT(A) QUASHED NOTICE U/S 148 O F THE ACT ISSUED BY ITO, MANDI GOBINDGARH BY HOLDING THAT THE ASSESSMEN T WAS FRAMED BY JURISDICTIONAL ITO, WARD 26(1), NEW DELHI WITHOUT A CQUIRING JURISDICTION BY ISSUANCE OF NOTICE U/S 148 OF THE ACT WHICH IS AN I NCURABLE DEFECT. LD. AR COULD NOT PLACE ANY MATERIAL OR FACT BEFORE US TO H OLD THAT THE ASSESSMENT ITA NO.5950/DEL/2012 ASSTT.YEAR: 2004-05 5 WAS FRAMED BY THE JURISDICTIONAL ITO AFTER ACQUIRIN G VALID JURISDICTION BY ISSUANCE OF NOTICE U/S 148, THUS, WE ARE UNABLE TO SEE ANY AMBIGUITY, PERVERSITY OR ANY OTHER VALID REASON TO INTERFERE W ITH THE IMPUGNED ORDER AND WE UPHOLD THE SAME. ACCORDINGLY, SOLE GROUND O F THE REVENUE BEING DEVOID OF MERITS IS DISMISSED. C.O. 162/DEL/2013 OF THE ASSESSEE 7. SINCE BY THE EARLIER PART OF THIS ORDER, WE HAVE DISMISSED THE APPEAL OF THE REVENUE AGAINST THE ORDER OF THE CIT(A) WHIC H QUASHED NOTICE U/S 148 OF THE ACT, THEREFORE, C.O. OF THE ASSESSEE DOE S NOT SURVIVE FOR DETAILED ADJUDICATION ON MERITS AND WE DISMISS THE SAME AS I NFRUCTUOUS IN VIEW OF ABOVE CONCLUSION, AS RECORDED ABOVE, DISMISSING THE APPEAL OF THE REVENUE. ACCORDINGLY, CO OF THE ASSESSEE IS ALSO DISMISSED A S INFRUCTUOUS. 8. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.1.2015. SD/- SD/- (G.D. AGRAWAL) (CHANDRAMOHAN GARG ) VICE PRESIDENT JUDICIAL MEMBER DT. 27TH JANUARY 2015 GS ITA NO.5950/DEL/2012 ASSTT.YEAR: 2004-05 6 COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER AS STT. REGISTRAR