Suman Jha, Delhi V. ITO, New Delhi

ITA 6005/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6698 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 20-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 04-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH CHAND DUBEY
• Assessee Lawyers: NAVEEN JHA
• Keywords: Opportunity of being heard; Revised return
• Section: 56(2); 139(5); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6005/DEL/2015 ASSESSMENT YEAR: 2011-12 SUMAN JHA, VS. INCOME TAX OFFICER, S/O SH. SURESH JHA, WARD 56(2) A-146, STREET NO. 3, NEW DELHI NORTH VINOD NAGAR, DELHI 110092 (PAN: AHIPJ4336R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. NAVEEN JHA, ADV. DEPARTMENT BY : SH. UMESH CHAND DUBEY, SR . DR DATE OF HEARING : 22-09-2016 DATE OF ORDER : 25-10-2016 ORDER PER H.S. SIDHU, J.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 6.8.2015 OF THE LD. CIT(A)-19, NEW DELHI RELATIN G TO ASSESSMENT YEAR 2011-12. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDE R:- I, SUMAN JHA, IS AN INDIVIDUAL CARRYING BUSINESS OF CIVIL CONSTRUCTION IN MY INDIVIDUAL CAPACITY. MY CASE ASSES SED UNDER SECTION 148 OF THE INCOME TAX ACT, 1961. DEMAND CALCULATED BY A.A. IS PREJUDICIAL TO ME. A.O. DO NOT ACCEPT MY REQUEST DATED 14/03/2013 TO ACCEPT AND PROCESS ONLINE RETURN FILLED ON 26/09/2012. CONTENTION OF TH E A.O. WAS ASSESSEE FILED RETURN MANUALLY ON 14/03/201 2 2 AND ANOTHER RETURN THROUGH E FILLING ON 26/09/2012 A ND BOTH RETURN MENTIONED 'ORIGINAL' IN THE COLUMN, WHETH ER ORIGINAL OR REVISED RETURN? DURING ASSESSMENT A.O. HA S REJECTED THE RETURN SO FILED E-RETURN ON 26109/2012 AN D REQUEST ON DATED 14/03/2013 TO CONTINUE E-RETURN AND WITHDRAW MANUAL RETURN WHICH HAD GOT FILLED BY MISTAKE ON PART OF ASSESSEE, ALSO EJECTED. EVEN A.I. IGNORE TH E PROVISION OF SECTION 44AB OF INCOME TAX ACT, 1961. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSING OFFICER (OR THE COMMISSIONER OF INCOME-TAX (APPEALS)' WHERE AN APPEAL IS FILED BEFORE THE TRIBUNAL AGAINST THE ORD ER OF COMMISSIONER (APPEALS)) ERRED IN ORDER NO 13, 2014-2015 WITHOUT APPRECIATING THE FACT'. A PRAYER SHOULD BE MADE FOR EITHER ACCEPT E-RETURN FI LLED OR ALLOW ME TO FILE AFRESH RETURN OF ASSESSMENT YEAR 2011-12. HOPING FOR YOUR KIND ACCEPTANCE. DELETION OR ADDITION/DISALLOWANCE AFTER TAKING RELEVA NT GROUND AS UNDER: I AM NOT AGREEING WITH THE COMPUTATION OF INCOME MADE BY ASSESSING OFFICER. DURING THE ASSESSMENT, SEC 44AB OF INCOME TAX ACT HAS NOT BEEN CONSIDERED BY ASSESSING OFFICER DEMAND CALCULATED BY A.O. IS PREJUDICIAL TO ME AND, IF APPEAL IS NOT ALLOWED TO BE PROCEEDED IT AMOUNTING TO AGAINST THE LAW. I HAVE VALID REASON FOR MAKING APPEAL. 3 I AM GENUINE IN THE EYE OF LAW AND FOLLOWED VALID PROCEDURE FOR COMPUTATION OF INCOME. HOPE ABOVE GROUND OF APPEAL IS VALID FOR TAKING THE MATTER IN APPEAL. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESS EE HAS STATED THAT AO HAS PASSED THE ASSESSMENT ORDER U/S. 144 OF THE INCOME TAX ACT, 1961, WHICH IS AGAINST THE PRINCIPLES OF NATUR AL JUSTICE, AS NO ADEQUATE OPPORTUNITY OF BEING HEARD WAS ALLOWED TO THE ASSESSEE BY THE AO. HE FURTHER STATED THAT LD. CIT(A) HAS PASS ED A NON-SPEAKING ORDER. THEREFORE, HE REQUESTED THAT THE ADDITION IN DISPUTE MAY BE DELETED. 5. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECO RDS, ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD. CIT( A), I FIND THAT THE AO WHILE COMPLETING THE ASSESSMENT U/S. 144/148 OF THE I.T. ACT, 1961 VIDE HIS ORDER DATED 18.3.2014 HAS OBSE RVED AS UNDER:- IN VIEW OF THE ABOVE FACTS THAT THE CASE IS GOING T O BE BARRED BY LIMITATION. IN THE ABSENCE OF ANY REPLY AND NON-COOPERATIVE ATTITUDE ON THE PART OF THE ASSESSEE, I AM SATISFIED THAT THE ASSESSEE HAS NO EXPLANATION TO FURNISH AND ASSESSEE IS DELIBERATELY AVOIDING THE ASSESSMENT PROCEEDINGS. THEREFORE, I AM LEFT WITH NO OTHER ALTERNATIVE EXCEPT TO COMPLETE THE ASSESSMENT EX- PARTE U/S. 144 OF THE I.T. ACT, 1961 ON THE BASIS OF 4 MATERIAL AVAILABLE ON RECORD AND TO THE BEST OF MY JUDGMENTS. 6.1 I ALSO FIND THAT LD. CIT(A) HAS GIVEN HIS FINDIN G IN THE IMPUGNED ORDER 6.8.2015 VIDE PARA NO. 7 OF HIS ORDE R AS UNDER:- 7. THE SUBMISSIONS MADE BY THE APPELLANT HAVE BEEN CAREFULLY CONSIDERED. IT IS A FACT THAT THE FIRST RETURN WAS FILED ON 14.3.2012 WITH RESPECT TO ASSESSMENT YEAR 2011-12 I.E., IT WAS A RETURN FILED U/S. 139(4) OF THE ACT. THE ONLINE RETURN WAS FILED BY 26.9.2012. THIS RETURN ALSO BEEN FILED AS THE ORIGINAL RETURN AND NOT A REVISED RETURN. THE HONBLE SUPREME COURT IN THE CASE OF KUMAR JAGDISH CHAND SINHA VS. CIT 222 ITR 67 HAS HELD THAT THE RETURN FILED U/S. 139(4) OF THE ACT CANNOT BE REVISED U/S. 139(5) OF THE ACT. THEREFORE, RETURN FILED ONLINE ON 26.9.2012 CANNOT BE TREATED AS REVISED RETURN TO BE SUBSTITUTED FOR THE ORIGINAL RETURN FILED. THE SAME IS NON-EST AND CANNOT BE CONSIDERED FOR THE PURPOSE OF ASSESSMENT. 6.2 IN VIEW OF THE ABOVE, I FIND THAT AO IN HIS ORDER HAS OBSERVED THAT THE CASE IS GOING TO BE BARRED BY LIMITATION. IN THE ABSE NCE OF ANY REPLY AND NON-COOPERATIVE ATTITUDE ON THE PART OF TH E ASSESSEE, AO WAS SATISFIED THAT THE ASSESSEE HAS NO EXPLANATION T O FURNISH AND ASSESSEE IS DELIBERATELY AVOIDING THE ASSESSMENT PROCEEDINGS. THEREFORE, HE LEFT WITH NO OTHER ALTERNATIVE EXCEPT TO CO MPLETE THE 5 ASSESSMENT EX-PARTE U/S. 144 OF THE I.T. ACT, 1961 ON TH E BASIS OF MATERIAL AVAILABLE ON RECORD AND TO THE BEST OF HIS J UDGMENTS. HOWEVER, THE LD. CIT(A) HAS OBSERVED THAT IT IS A FA CT THAT THE FIRST RETURN WAS FILED ON 14.3.2012 WITH RESPECT TO ASSESSMEN T YEAR 2011-12 I.E., ASSESSEE FILED RETURN U/S. 139(4) OF THE ACT. THE ONLINE RETURN WAS FILED BY 26.9.2012. THIS RETURN A LSO BEEN FILED AS THE ORIGINAL RETURN AND NOT A REVISED RETURN. THE HONBLE SUPREME COURT IN THE CASE OF KUMAR JAGDISH CHAND S INHA VS. CIT 222 ITR 67 HAS HELD THAT THE RETURN FILED U/S. 139(4) OF THE ACT CANNOT BE REVISED U/S. 139(5) OF THE ACT. THEREFORE, R ETURN FILED ONLINE ON 26.9.2012 CANNOT BE TREATED AS REVISED R ETURN TO BE SUBSTITUTED FOR THE ORIGINAL RETURN FILED. THE SAME WA S NON-EST AND CANNOT BE CONSIDERED FOR THE PURPOSE OF ASSESSMENT. I N MY CONSIDERED OPINION, THE LD. CIT(A) HAS PASSED A NON -SPEAKING ORDER AND THE AO HAS PASSED AN EXPARTE ORDER. IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED VIEW THAT IN THE INTEREST OF JUS TICE, ONE MORE OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO SUBST ANTIATE HIS CLAIM BEFORE THE AO. ACCORDINGLY, I REMIT BACK THE ISSUE S IN DISPUTE TO THE FILE OF THE AO TO CONSIDER THE SAME AFRESH, UNDER T HE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. HOWEVER, THE ASSESSEE IS ALSO DIRECTED TO PRODUCE ALL THE EVIDEN CES/ DOCUMENTS 6 BEFORE THE AO TO SUBSTANTIATE HIS CLAIM AND FULLY C OOPERATE WITH THE AO DURING THE PROCEEDINGS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STA NDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 25/10/2016. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 25/10/2016 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR