ITO, Bhiwani V. Adarsh Shiksha Samiti, Bhiwani

ITA 600/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 6989 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2000-2001
• Appeal Filed On: 18-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KISHORE B SENIOR
• Assessee Lawyers: R P BASIA
• Keywords: Set aside
• Section: 147; 148

Judgement Text

IN THE INCOME TA X AP PELLA TE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE H ON'BLE SENIOR VICE P RESIDENT, SHRI R.P. GARG AN D HON'BLE JUDICIAL MEMBER, SHRI A.D. JAIN ITA NOS.599, 600 & 601/DEL./2009 ( ASSESSMENT YEARS : 1999-2000, 2000-01 & 2001-02 ) IT O, WARD 1, VS. ADARSH S HIKSHA SAMITI, BHIWANI. CIRCULAR ROAD, BHIWANI. (P AN : AAABTA0020D) (APP EL LANT ) (RES PONDENT ) ASSE SSE E BY : S HRI R.P. BASIA, CA REVENU E BY : SHRI KISHORE B., SENIOR DR O R D E R GARG, SENIOR VP : T HESE THREE APPEALS FILED BY THE R EVENUE A RE AGAINST THE O RDER OF THE CIT (APPEALS) FOR T HE ASSES SM EN T Y EARS 1999 -2000, 2000-01 AND 2001-02. 2. THE CO MM ON GROUND RAISED IN THESE APPEALS, EXCEPT THE FIGURE OF ADDITION, IS AS UNDER : ON THE FACTS AND IN T HE CIRCUM STANCE S OF THE CASE, THE L D. CI T (A) HAS ERRED IN DELETING THE ADDITION OF RS.10,71,560/- B Y HOLDING THAT COPY OF REASONS RECORDED WHILE INITIATION PROCEEDINGS U/S 147 OF THE ACT WAS NOT SUPPLIED TO THE ASSE SSEE WHEREAS THE FACTS OF THE SA ME WAS APP RISED TO THE AUTHO RISED REPRESENTATIVE OF THE ASSES SEE VIDE O RDER SHEET DATED 18.07.2006. 2 I TA NO.2403 & 1561/DEL./2008 I TA NO.1216/DEL./2008 3. THESE TH REE ASSE SS ME NT S WERE REOPENED BY THE ASSE SSING OFFICER B Y INVOKING THE PROVISIONS OF SECTION 147 READ WITH SECTION 148 ON 29.3.2006 AND STATED TO BE AFTER R ECORDING THE REASONS AND TAKING PRIO R APPROVAL OF THE ADDL.CIT, BHIWANI RANGE, BHIWANI. BEFORE THE CIT (APPEALS), T HE ASSES SEE SUB MITTED THAT THE REASONS HAVE NOT BEEN COM MU NICAT ED T O THE ASSESS EE AND, THEREFORE, THE ASSESS ME NT IS BAD IN LAW. T HE CI T ( APPEALS), AFTER REFERRING TO THE SUP RE ME COURT DECISION IN THE CASE OF GKN DRIVESHAFTS ( INDIA) LIMITED VS. I TO 259 I TR 19 (SC), HELD THE ACTION OF THE ASSES SING OFFICER AS VOID AB INITIO. 4. WE HAVE HEARD THE PARTIES AND CONSIDERED THE R IVAL CONTENTIONS. I N THE CASE OF GKN DRIVESHAFTS L TD. (SUPRA ), THE SUPREM E COURT HAS HELD THAT WHEN A NOTICE UNDE R SECTION 148 OF THE ACT IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICEE IS TO FILE THE R ETURN AND, IF HE SO DESIRES, TO SEEK REASONS FOR ISSUING THE NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TI ME. ON RECEIPT OF REASONS, THE NOTICEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAM E BY PASSING A SPEAKING ORDER. I N THESE CIRCUM STANCE S, T HE M ATTER SHOULD HAVE BEEN SET ASIDE BY THE CIT (APPEALS) WITH A DI RECTION TO THE ASSE SSING OFFICER T O CO MM UN ICATE THE REASONS FOR REOPENING OF THE ASSE SS ME NT S AND IF THE ASSES SEE FILES OBJECTION TO THE SAM E, THE ASSESSING OFFICER SHOULD HAVE CONSIDERED THE CLAI M OF THE ASSE SSE E AND DISPOSED OF THE M ATTER ACCORDINGLY INSTEAD OF VACATING THE O RDER OF ASSE SSING OFFICER AND HOLDING THE SA ME AS VOID AB INI TIO. IN VIEW OF THIS POSITION, WE SET ASIDE THE ORDER OF THE CIT ( APPEALS) AND RESTORE THE MATT ER BACK TO THE FILE OF THE ASSE SSING OFFICER T O MA KE THE ASSE SS ME NT S AFRESH, AFTER CO MM UNI CATING THE 3 I TA NO.2403 & 1561/DEL./2008 I TA NO.1216/DEL./2008 REASONS FOR REOPENING TO THE ASSES SEE AND IF HE FILES OBJECTIONS THERETO, THE ASSE SSING OFFICER SHOULD DEAL WITH THE SA ME AND DISPOSE THE M IN ACCORDANCE WITH LAW. 5. IN THE RESULT, ALL THE THREE APPEALS OF THE R EVENUE A RE ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF APRIL 2009. ( A.D. JAIN) ( R.P. GARG) JU DICIAL ME MB ER SENIOR VICE P RESIDENT DATED THE 22 N D DA Y OF AP RIL 2009/ TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A), ROHTAK. 5.CIT (I TAT), NEW DELHI. AR, I TA T NEW DE LHI.