Khushal, New Delhi V. ITO, New Delhi

ITA 607/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3261 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBANI CHAUDHURI
• Assessee Lawyers: HARDIPENDER SI NGH
• Keywords: Opportunity of being heard; Validity of assessment
• Section: 143(3); 142(1); 133(6); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.607/DEL/2016 ASSESSMENT YEAR 2009-10 KHUSHAL 16/2001, 2 ND FLOOR, GALI NO.3, P.L. ROAD, BAPA NAGAR, KAROL BAGH, NEW DELHI. PAN: AVYPK 9337M VS. ITO, WARD-33(2), NEW DELHI (APPELLANT) (RESPONDENT) REVENUE BY : MS. BEDOBANI CHAUDHURI, SR.D.R. ASSESSEE(S) BY : SHRI HARDIPENDER SINGH, ADV. / DATE OF HEARING : 27/04/2017 / DATE OF PRONOUNCEMENT: 28/04/2017 ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O F CIT(A)-17 NEW DELHI VIDE ORDER DATED 22.12.2015 FOR THE ASSESSMEN T YEAR 2009-10. THE ASSESSEE HAS RAISED AS MANY AS 6 GROUNDS OF APPEA L AND AT THE OUTSET THE ID. COUNSEL FOR THE ASSESSEE ARGUED GROUND NO. 1 AN D 2 BEING THE LEGA L GROUNDS WHICH ARE REPRODUCED AS UNDER: I. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WHERE THE NOTICE U/S 148 OF THE INCOME TAX ACT , 1961, WAS NOT SERVED UPON THE APPELLANT, THE ASSESSING OFFICE R WAS JUSTIFIED IN TAKING PROCEEDINGS AGAINST THE ASSESSE. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT ADJUDI CATED THIS ISSUE AND PASSED HIS ORDER, WHICH IS AGAINST LAW. H E HAS NOT EVEN ACKNOWLEDGED SECTION 147 UNDER WHICH THE IMPUG NED ASSESSMENT ORDER WAS PASSED ALONGWITH SECTION 143(3 ) OF THE ACT, IN HIS APPEAL ORDER. WHETHER ON THE FACTS AND I N THE CIRCUMSTANCES OF THE CASE AND IN LAW, LTD. ASSESSING OFFICER WAS JUSTIFIED IN CARRYI NG OUT ASSESSMENT PROCEEDINGS U/S 143(2) AND PASSING THE A SSESSMENT ORDER U/S 143(3) OF THE ACT, AS THE APPELLANT HAD N EVER FILED INCOME TAX RETURN FOR THE SAID ASSESSMENT YEAR. ITA NO.607/DEL/2016 2 2. THE BRIEF FACTS OF THE CASE AS STATED BY THE ID. COUNSEL FOR THE ASSESSEE ARE AS PER AO'S ORDER WHICH IS REPRODUCED HEREIN BELOW: 'AS PER AIR INFORMATION ASSESSE HAS DEPOSITED CASH OF RS . 47,13,135/- DURING FY 2008-09 IN HIS SAVING BANK ACCOUNT. NO RE TURN WAS FILED BY THE ASSESSEE FOR AY 2009-10. NOTICE U/S 133(6) WAS ISSU ED ON 30.01 . 2012 FIXING THE CASE FOR HEARING ON 10.2.2012. THE AR OF THE ASSESSEE HAS FILED REPLY DATED 22.2.2012 STATING THAT ASSESSEE WAS PET TY WALKING BROKER/COMMISSION GENT WORKING AT GAFFAR MARKET, KA ROL BAGH, NEW DELHI HAVING NO PERMANENT BUSINESS PLACE THERE AND EARNED APPROXIMATELY RS.5,000/- TO RS.6,000/- PER MONTH AS BROKERAGE/COM MISSION FROM VARIOUS PARTIES WHO COME FROM OUTSIDE DELHI TO PURC HASE THE VARIOUS ITEMS. IN THE MONTH OF NOV. 2008 ONE PERSON NAMED R AM NARESH YADAV CONTACTED THE ASSESSEE AND OFFERED HIM RS.12,000/- PER MONTH ON THE CONDITION THAT HE WILL OPERATE ASSESSEE'S BANK ACCO UNT AND WILL KEEP THE CHEQUE BOOKS HIMSELF TO BE USED BY HIM EXCLUSIVELY. ASSESSEE AGREED TO ' IT AND RECEIVED RS.72,000/- APPROXIMATELY FROM RAM NARESH YADAV AND COMMISSION OF RS.60,000/- DURING THE YEAR 2008-09. AS ASSESSEE FAILED TO FILE ANY DETAILS OF THE PERSON WHO USED HIS BANK AC COUNT AND ANY OTHER DOCUMENTS, CASE WAS RE-OPENED U/S 148 OF THE IT ACT AFTER RECORD I NG REASONS. SUBSEQUENTLY , NOTICE U/S 148 WAS I SSUED ON 6 . 3 . 2013 BUT NO R EP L Y RECEIVED FROM THE ASSESSEE NOR ANY RETURN FILED. NO TICE U/S 143(2 ) AND 142(1) WAS ISSUED ON 23.8.2013 FIXING THE CASE FOR HEAR I NG ON 3.9.2013 ALONGWITH QUESTIONNAIRE. NOTICE U/S 143(2), WAS ISS UED FIXING THE CASE FOR HEARING ON 13.03.2014, BUT RECEIVED BACK UNSERVED . AR OF THE ASSESSEE HAS FILED REPLY ON DATED 24.03.2014 S PER QUESTIONN AIRE ISSUED ON 23.8.2013, STATING THAT ASSESSEE HAS NO BANK ACCOUN T AND THE TAX ALREADY PAID THE TAX DUE ON ESTIMATED BASIS 23.8.2013, STAT ING THAT ASSESSEE HAS NO BANK ACCOUNT AND THE TAX ALREADY PAID THE TAX DU E ON ESTIMATED BASIS. ASSESSEE HAS REPLIED VIDE LETTER DATED 27.9.2013 AN D ENCLOSED EARLIER REPLY IN WHICH HE HAD SUBMITTED THAT SOME OTHER PER SON HAD USED HIS BANK ACCOUNT. ASSESSEE VIDE HIS LETTER 24.10.2013 H AS SUBMITTED REPLY ALONGWITH COMPUTATION OF INCOME AND SUBMITTED THAT THOUGH THE ASSESSE IS UNAWARE OF THE BANK TRANSACTION UNDER THE CIRCUM STANCES TO BE PEACE AND TO AVOID MENTAL TENSION AMOUNT IS SURRENDERED V OLUNTARILY TO BE ASSESSE U/S 44AF OF THE IT ACT, AND OFFERED RS.2,35 ,656J- @5 % OF THE I NCOME OF GROSS RECEIPTS AND PAID TAX THEREON. ASSESSEE ' S CONTENTION HAS BEEN CONSIDERED BUT NOT ACCEPTABLE . ASSESSEE HAD EARLIER SUBMITTED THAT SOME OTHER PERSON HAS USED H IS BANK ACCOUNT AND ALL THE CASH DEPOSITS ARE DONE BY HIM A ND HE USED TO RECEIVE SOME COMMISSION ONLY IN RETURN OF THAT. NOW ASSESSE IS CLAIMING THIS AMOUNT AS HIS GROSS, RECEIPTS WHICH IS NOT ACCEPTAB LE. ASSESSEE HAS CONTRADICTED HIS OWN STATEMENT AND MOREOVER HIS DEC LARING INCOME U/S 44AF IS AFTER THOUGHT SINCE HE HAS NOT FILED HIS RE TURN. HENCE ITA NO.607/DEL/2016 3 RS . 47,13,135/- IS CONSIDERED AS UNDISCLOSED I NCOME OF THE ASSESSE. ' 3. BEFORE THE ID. CIT(A), THE ASSESSEE RAISED THE I SSUE THAT NOT I CE U/S 148 OF THE ACT AND NOTICE U/S 143(2) OF THE ACT WAS BAD IN LAW, ESPEC I ALLY NOTICE U/S 148 WAS NEVER SERVED ON THE ASSESSEE AND NOTICE U/S 143(2) OF THE ACT WAS BARRED BY L I MITAT I ON . TH I S I SSUE WAS NEVER DECIDED BY THE ID. CIT(A), THOUGH THE ASSESSEE RAISED THE ADDITIONAL G ROUND OF APPEAL BEFORE ME IN THIS REGARD WHICH ARE REPRODUCED HEREINBELOW: 1. WHETHER ON THE FACTS AND I N CIRCUMSTANCES OF THE CASE AND IN LAW ID. COMMISSIONER OF INCOME TAX (APPLEALS) HAS E RRED IN UPHOLDING THE VALIDITY OF ASSESSMENT FRAMED UNDER S ECTION 147/143(3) OF THE INCOME TAX ACT, 1961, WHICH ORDER IS BAD IN LAW AND BE QUASHED FOR THE REASON THAT NO INCOME TAX RETURN WAS FILED AND FOR PROCEEDINGS UNDER SECTIONS 143(2) FILING OF THE RETURN IS SINCE QUA NON. 2. BECAUSE THERE BEING NO SERVICE OF NOTICE UNDER SECT ION 148, NO INCOME TAX RETURN WAS FILED BY THE APPELLANT; TH E ENTIRE ASSESSMENT FRAMED UNDER SECTION 148 IS BAD IN LAW A ND BE QUASHED. 4. THE SAID ADDITIONAL GROUNDS HAVE BEEN ADMITTED IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF NTPC 229 IT R 383 SINCE THE ISSUE GOES DEEP INTO THE ROOT OF THE MATTER. 5. THE ID. DR HOWEVER CONCEDED THAT THE ISSUE HAS N OT BEEN DECIDED BY THE I D. CIT(A) , THOUGH THE SAID ISSUE WAS RAISED BEFORE THE ID. CIT (A), IS A MATTER OF RECORD. 6. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT ISSUE WA S RAISED BEFORE THE ID. CIT(A) W.R.T. NON SERVICE OF NOTICE U/S 148 OF THE ACT AND NOTICE U/S 143(2) IS BARRED BY LIMITAT I ON. THEREFORE IN THE I NTEREST OF JUSTICE, THE MATTER IS SET ASIDE TO THE FILE OF THE ID. CIT(A) T O DECIDE THE ISSUE WITH REGARD TO THE NOT I CE U/S 148 AND 143(2) OF THE ACT WHO WILL DECIDE TH E SAME DENOVO BUT BY AFFORDING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ITA NO.607/DEL/2016 4 ASSESSEE . THUS GRO U ND NO.1 AND 2 ARE ALLOWED FOR STATISTICAL PURPOSES. 7. AS REGARD THE G R OUNDS ON MER I T , THE ASSESSEE IS CHANGING THE STAND FROM TIME TO TIME THAT HIS I NCOME I S BELOW TAXABLE LIMIT FIRSTLY, HIS INCOME IS ABOVE TAXABLE LIMITS AND HE HAS PAID THE TAXES BUT NOT FILED THE RETURN AND HIS TURNOVER IS ABOVE RS. 40/- LACS SECONDLY, H E WAS GETTING COMMISSION ONLY DURING THE YEAR AND SOMEBODY ELSE H AS USED HIS BANK ACCOUNT ON COMMISSION BASIS THIRDLY AND SO ON. THE ID. CIT(A) IS DIRECTED TO OBTAIN THE ADDRESS OF THE PERSON WHO HAS USED THE SAID ACCOUNT AND SUMMON THE SAID PERSON AND EXAMINE THE VERACITY OF THE STAND TAKEN BY THE ASSESSEE AND ALSO SUMMON THE ASSESSEE TO EXAMIN E THE STAND TAKEN BY THE ASSESSEE. THUS THE ISSUES ON MERIT ARE ALSO SET ASIDE TO THE FILE OF THE AD I . E. GROUND NO.3 TO 6 ARE DIRECTED TO BE DECIDED DENO VO BY THE ID. CIT(A) AS PER THE DIRECTIONS HEREINABOVE BUT BY PRO VIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS GR OUNDS NO.3 TO 6 ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IN ITA NO.607/DEL/2016 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 28 TH APRIL, 2017 SD/- (B.P. JAIN) ACCOUNTANT MEMBER DATED: 28/04/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS) 5.DR: ITAT ASSTT. REGISTRAR, ITAT, NEW DELHI