Anupama Gupta, New Delhi V. ITO WARD - 1(1), Ghaziabad

ITA 6093/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0720 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 17-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice; Additional evidence; Corroborative evidences; Tax effect; Reason to believe; Reassessment proceedings; TDS; Set aside
• Section: 250; 48; 147; 69; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: SMC-2 NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.6093/DEL/2019 ASSESSMENT YEAR: 2009-10 SMT. ANUPAMA GUPTA, A-52, 2 ND FLOOR, GURUNANAK PURA, LAXMI NAGAR, NEW DELHI VS. ITO, WARD-1(1), GHAZIABAD PAN :AHFPG5333C (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST ORDER DATED 06/05/2019 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-GHAZIABAD [IN SHORT THE LD. C IT(A)] FOR ASSESSMENT YEAR 2009-10 RAISING FOLLOWING GROUNDS: APPELLANT BY SH. VINESH KUMAR MAHESHWARI, FCA RESPONDENT BY SH. R.K. GUPTA, SR.DR DATE OF HEARING 30.06.2021 DATE OF PRONOUNCEMENT 09.07.2021 2 ITA NO.6093/DEL/2019 S. NO GROUNDS OF APPEAL TAX EFFECT RELATING TO EACH GROUND OF APPEAL (IN RS.) 1. GENERAL & PRINCIPLE OF NATURAL JUSTICE 7,45,513 A. THAT THE APPELLATE ORDER DATED 06.05.2019 PASSED BY HONBLE COMMISSIONER OF INCOME- TAX APPEALS (CIT (A)) U/S 250 OF THE ACT IS BAD IN LAW AND VOID AB-INITIO . B. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD AO &HONBLECIT(A) GROSSLY ERRED IN MAKIN G, UPHOLDING THE ADDITION MADE UNDER SECTION 69 OF THE ACT OF RS.L 1,10,000 AND LATER ON ENHANCING THE SAME TO RS. 16,58,525 WITHOUT GIVING OPPORTUNITY OF BEING HEARD AND WITHOUT CONSIDERING THE ORIGINAL RETURN OF INCOME A LREADY FILED ON 18TH MARCH 2010. C. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. AO RESTRICT THE ASSESSEE FROM PRESENTING HER STAND AT ASSESSMENT PROCEEDINGS BY SENDING ALL NOTICES TO INCORRECT ADDRESSES & LATER ON WHEN HON HIE CIT(A) FORWARDED ADDITIONAL EVIDENCE FOR VERIFICATION, HONBLE CIT(A) DIRECTED LD. AO TO SEND REMAND REPORT WITHOU T DISCUSSING & CALLING ASSESSEE TO PRESENT HER STAND, THUS NO OPPORTUNITY OF BEING HEARD WAS EVER GIVEN TO THE ASSESSEE WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 2. ASSESSMENT ORDER PASSED WITHOUT JURISDICTION A. THAT HONBLE CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE BY UPHOLDING TH E ACTION OF LD AO OF PASSING ASSESSMENT ORDER U/S 147 R.W.S. 144 IN MUCH HURRY, WITHOUT APPLICATION OF MI ND & MOREOVER WITHOUT HAVING JURISDICTION OF THE ASSESSEE IN HIS WARD. THEREFORE, THE ASSESSMENT ORDER PASSED U/ S 147 R.W.S 144 IS INVALID, ILLEGAL, VOID-AB- INITIO, BAD IN LAW. 3. NON-FULFILLMENT OF JURISDICTIONAL CONDITIONS U/S 148 TO 150 A. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD CIT- A ERRED IN SUSTAINING THE REOPENING ACTION OF LD AO U/S 148 MADE IN VIOLATION OF MANDAT ORY JURISDICTIONAL CONDITIONS STIPULATED UNDER THE ACT. B. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, LD CIT(A) FAILED TO APPRECIATE THAT BOT H INITIATION OF PROCEEDINGS AND FRAMING OF ASSESSMENT FRAMED U/S 147 R.W.S. 144 ARE WITHOUT SATISFYING TH E PRE CONDITIONS FOR INVOKING THE PROVISIONS OF SECTION 1 48 OF THE ACT AND THUS ENTIRE REASSESSMENT PROCEEDINGS ARE 3 ITA NO.6093/DEL/2019 INVALID AND UNTENABLE. C. THAT LD. AO AND SUBSEQUENTLY HONBLE CIT (A) HAVE ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN NOT APPRECIATING THE FACT THAT NEITHER REASONS F OR ISSUE OF NOTICE UNDER SECTION 148 HAD BEEN PROVIDED NOR NOTICE U/S 148 HAD EVER BEEN SERVED TO THE ASSESSEE. THEREFORE ISSUE OF NOTICE UNDER SECTION 148 IS BAD IN LAW AND ASSESSMENT ORDER PASSED U/S 147 R.W.S 144 IS LIABLE TO BE QUASHED. 4. NO REASONS TO BELIEVE, ASSESSMENT ORDER FRAMED MERE LY ON SUSPICION A. THAT LD. AO AND SUBSEQUENTLY HONBLE CIT (A) HAVE ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN NOT APPRECIATING THE FACT THAT ASSESSMENT OR REASSESSMENT PROCEEDINGS UNDER SECTION 147 COULD NO T BE RESORTED TO UNLESS THERE WAS REASON TO BELIEVE, RATHER THAN SUSPECT, THAT INCOME HAD ESCAPED ASSESSMENT. THUS, REASSESSMENT ORDER UNDER SECTION 147 OUGHT TO BE SET ASIDE. 5. THE LD AO ALLEGED THAT INVESTMENT IN THE IMMOVABLE PROPERTY CONSTITUTED UNDISCLOSED INCOME A. THAT HONBLECIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE BY UPHOLDING TH E ACTION OF LD AO OF INVOKING REASSESSMENT PROCEEDING S UNDER SECTION 147 OF THE ACT MERELY ON THE BASIS OF FALLACIOUS ASSUMPTION THAT INVESTMENT IN THE IMMOVA B LE PROPERTY CONSTITUTED UNDISCLOSED INCOME AND OVERLOO KED THE FACT THAT THE SOURCE OF PURCHASE OF THE PROPERT Y NEED NOT BE THE INCOME OF THE ASSESSEE. THEREFORE, REASSESSMENT ORDER UNDER SECTION 147 OUGHT TO BE SE T ASIDE. 6. NO BACK MATERIAL WAS EVER CONFRONTED TO ASSESSEE A. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, HONBLE CIT- A ERRED IN SUSTAINING THE ORDER PASSED BY LD AO U/S 147 R.W.S. 144 WITHOUT APPRECIATING THAT NO BACK MATERIAL/VALUABLE/PRECISE INFORMATION FROM RELIABLE & CREDIBLE SOURCE WERE NEVER CONFRONTED TO ASSESSEE THUS INVALIDATING ENTIRE REOPENING. B. THAT LD. CIT (A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN MAKING SEVERAL FACTUAL LY INCORRECT STATEMENTS/ BASELESS ASSERTIONS WITHOUT 4 ITA NO.6093/DEL/2019 AFFORDING ANY SUPPORTING EVIDENCE. 7. ASSESSEES SUBMISSION AND ADDITIONAL EVIDENCE UNDER RULE 46A WERE NOT APPRECIATED/CONSIDERED A. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, HONBLE CIT- A ERRED IN SUSTAINING THE ORDER PASSED BY LD AO U/S 147 R.W.S. 144 AND ENHANCING TH E ADDITION MADE BY LD AO AS NONE OF THE ASSESSEES SUBMISSION AND ADDITIONAL EVIDENCE SUBMITTED DURING APPELLATE PROCEEDINGS UNDER RULE 46A WERE APPRECIAT ED WHILE ADJUDICATING THE APPEAL. 9. THE APPELLANT CRAVES LEAVES TO AMEND, MODIFY AND/OR ALTER GROUNDS AND/OR TO ADDUCE AND RELY UPON SUCH FURTHER EVIDENCE AND/OR DOCUMENTS AS MAY BE REQUIRED AT ANY TIME BEFORE AND DURING THE TIME OF HEARING. TOTAL TAX EFFECT 7,45,513 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT ON RECEIP T OF INFORMATION IN ANNUAL INFORMATION RETURN (AIR) FROM RESPECTIVE AUTHORITY OF ASSESSEE HAVING PURCHASED IMMOVABLE PR OPERTY FOR A CONSIDERATION OF 39 LAKH, THE ASSESSMENT IN THE CASE OF THE ASSESSEE WAS REOPENED BY WAY OF ISSUE OF NOTICE DAT ED 10/03/2016 UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). DESPITE REMINDERS AND SUBSEQUENT NOTICES, NO COMPLIANCE WAS MADE BY THE ASSESSEE OF THE NOTICES ISSUED AND THEREFORE, THE ASSESSING OFFICER COMPLETED THE REAS SESSMENT UNDER SECTION 147 OF THE ACT READ WITH SECTION 144 (I.E. BEST JUDGMENT ASSESSMENT) ON 15/11/2016 AFTER MAKING ADD ITION OF 11,10,000/-. AGGRIEVED, THE ASSESSEE FILED APPEAL B EFORE THE LEARNED CIT(A) AND FILED ADDITIONAL EVIDENCES IN TE RMS OF RULE 46A OF INCOME TAX RULES, 1962 (IN SHORT THE RULES ). THE LD. CIT(A) FORWARDED THE ADDITIONAL EVIDENCES TO THE LE ARNED 5 ITA NO.6093/DEL/2019 ASSESSING OFFICER AND AFTER OBTAINING A REMAND REPO RT FROM HIM, SHE ENHANCED TOTAL INCOME OF THE ASSESSEE TO 16,58,525/-. AGGRIEVED, WITH THE IMPUGNED ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE INCOME-TAX APPELLATE TRIBUNAL (IN SHORT THE TRIBUNAL) RAISING THE GROUNDS AS REPRODUCED ABOVE. 3. BEFORE US, THE PARTIES APPEARED THROUGH VIDEO CONFE RENCING FACILITY. THE ASSESSEE ALSO FILED A PAPER-BOOK IN PHYSICAL FORMAT CONTAINING PAGES 1 TO 143. 4. BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE SUB MITTED THAT THE LD. CIT(A) HAS SUSTAINED THE ADDITION AS W ELL AS ENHANCED THE INCOME ON THE BASIS OF THE COMMENT OF THE LEARNED ASSESSING OFFICER IN THE REMAND REPORT. IN THE REPO RT, THE LEARNED ASSESSING OFFICER DID NOT EXAMINE THE BANK STATEMEN T OF THE ASSESSEE THROUGH WHICH PAYMENT FOR THE PURCHASE OF THE PROPERTY HAS BEEN MADE. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS WILLING TO SUBMIT BANK STATEME NT AND OTHER EVIDENCE IN SUPPORT OF SOURCE OF INVESTMENT IN THE PROPERTY UNDER REFERENCE. ACCORDINGLY, HE SUBMITTED THAT MATTER MA Y BE RESTORED BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER F OR VERIFICATION OF EVIDENCE OF SOURCE OF INVESTMENT. 5. THE LEARNED DR, ON THE OTHER HAND, RELIED ON THE O RDER OF THE LOWER AUTHORITIES, HOWEVER, DID NOT OBJECT FOR RESTORING THE MATTER TO THE ASSESSING OFFICER FOR VERIFICATION OF EVIDENCE IN SUPPORT OF SOURCE OF INVESTMENT. 6. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE. THE ASSESSING OFFICER HAS MADE ADDITION FOR UNEXPLAINED INVESTMENT IN A PROPERTY BY THE ASSESSE E AT 6 ITA NO.6093/DEL/2019 11,10,000/- WHICH HAS BEEN FURTHER ENHANCED BY THE LEARNED CIT(A) TO 16,58,525/-. THE CONTENTION OF THE ASSESSEE THAT PROPERTY WAS PURCHASED JOINTLY BY THE ASSESSEE ALON G WITH HER HUSBAND FOR RS.30,43,000/-, OUT OF HOUSING LOAN OF 25,48,300/- FROM AXIS BANK LTD. THE LEARNED CIT(A) HAS ENHANCED THE ADDITION ON THE BASIS OF THE REMAND REPORT OF THE A SSESSING OFFICER ON THE ADDITIONAL EVIDENCES SUBMITTED. IN P ARA 4(D) OF THE REMAND REPORT, THE LEARNED ASSESSING OFFICER HAS RE PORTED THAT THE ASSESSEE DID NOT SUBMIT ANY BANK STATEMENT AND DOCUMENTS IN SUPPORT OF HER CONTENTION THAT INVESTMENT WAS MA DE DURING ASSESSMENT YEAR 2007-08. IN PARA 4(F) OF THE SAID R EMAND REPORT, THE ASSESSING OFFICER HAS ALSO NOTICED THAT NO EVID ENCE OF INVESTMENT OF 2,73,000/- TOWARDS THE STAMP DUTY AND 10,050/- TOWARDS OTHER CHARGES WERE FILED BEFORE HI M. NOW BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE HAS SUBMITT ED THAT THE ASSESSEE IS WILLING TO FILE ALL THE DOCUMENTARY EVI DENCE BEFORE THE ASSESSING OFFICER FOR HIS EXAMINATION AND VERIFICAT ION. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF THE SUBSTANTIAL JUSTICE, WE ARE OF THE OPINION THAT ASS ESSEE SHOULD BE PROVIDED ONE MORE OPPORTUNITY FOR FILING THE RELEVA NT DOCUMENTS BEFORE THE ASSESSING OFFICER FOR ADJUDICATION OF TH E ISSUE IN DISPUTE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING AFRESH WITH LIBERTY TO THE ASSESSEE TO FILE NECESSARY DOCUMENTARY EVIDENCE IN SUPPORT O F ITS CLAIM OF SOURCE OF INVESTMENT IN THE CONCERNED PROPERTY. THE GROUNDS NO. 7 OF THE APPEAL OF THE ASSESSEE IS ACCORDINGLY ALLO WED FOR 7 ITA NO.6093/DEL/2019 STATISTICAL PURPOSES. SINCE THE MATTER HAS ALREADY BEEN RESTORED, WE ARE NOT ADJUDICATING OTHER GROUNDS, WHICH ARE RE NDERED INFRUCTUOUS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH JULY, 2021 SD/- SD/- (KUL BHARAT) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 9 TH JULY, 2021. RK/- (DTDS) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI