Deepak Ahluwalia, New Delhi V. ADIT, New Delhi

ITA 6130/DEL/2012

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7364 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 08-05-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 10-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 48; 147; 148; 144

Judgement Text

1 , , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI ! ! ! ! . , ) ) ) ) ! ! ! ! BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT & DR. B.R.R. KUMAR, ACCOUNTANT MEMBER * ** * / ITA NO.6130/DEL/2012 + + + + + + + + / ASSESSMENT YEAR 2001-02 DEEPAK AHLUWALIA, 305, DAKHA CHAMBER, 206/38 NAI WALA, KAROL BAGH, NEW DELHI PAN-ALWPA8762C .......... ,- /APPELLANT VS ADIT, CENTRAL CIRCLE 1(1), NEW DELHI . ./,- / RESPONDENT ,-01 / APPELLANT BY : SH. MANOJ KUMAR, CA ./,-01 / RESPONDENT BY : SH. H.K.CHOUDHARY, CIT DR 023 / DATE OF HEARING : 28.01.2020 45 023( / DATE OF PRONOUNCEMENT: 30.01.2020 / ORDER PER SUSHMA CHOWLA, VP THE PRESENT APPEAL FILED BY ASSESSEE IS AGAINST ORD ER OF CIT(A), NEW DELHI DATED 03.09.2012 RELATING TO ASSESSMENT YEAR 2001-02 AGAINST ORDER PASSED UNDER SECTION 147 READ WITH SECTION 144 OF T HE ACT. ITA NO.6130/DEL/2012 2 2. THE LEARNED AR FOR THE ASSESSEE, AT THE OUTSET P OINTED OUT THAT THE FIRST ISSUE WHICH NEEDS TO BE ADJUDICATED IS GROUND OF APPEAL NO. 2, WHICH GOES TO THE ROOT OF JURISDICTION INVOKED BY THE AO. 3. BRIEFLY IN THE FACTS OF THE CASE, NOTICE UNDER S ECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 24.05.2006. THE SAID NOTICE WAS SENT TO THE ADDRESS OF THE ASSESSEE IN NEW ZEALAND AS THE ASSES SEE WAS A NON- RESIDENT. THE REASONS WHICH WERE RECORDED FOR REOPE NING THE ASSESSMENT WERE IN RELATION TO THE SALE OF PROPERTY AT 1/1 SHA NTI NIKETAN, NEW DELHI, ON THE BASIS OF THE SEIZED DOCUMENT THAT THE ASSESS EE HAD RECEIVED CONSIDERATION IN CASH OVER AND ABOVE THE CONSIDERAT ION DECLARED IN THE SALE DEED. THE ASSESSEE IS AGGRIEVED BY VARIOUS FAC ETS OF RECORDING THE REASONS FOR REOPENING THE ASSESSMENT, THE JURISDICT ION OF THE AO IN INVOKING THE SAME AND RECORDING THE REASONS FOR REO PENING THE ASSESSMENT. THE ASSESSEE IS ALSO AGGRIEVED BY NON S ERVICE OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT UPON THE ASSESS EE. OUR ATTENTION WAS DRAWN TO THE LETTER FILED BY THE ASSESSEE BEFORE TH E AO ON 7.2.2008 UNDER WHICH THE ASSESSEE HAD INTIMATED THE ADDRESS TO THE AO. THE LEARNED AR FOR THE ASSESSEE POINTED OUT THAT NO NOTICE UNDER S ECTION 148 OF THE ACT WAS EVER SERVED UPON THE ASSESSEE. 4. THE LEARNED DR FOR THE REVENUE ON THE OTHER HAND PRODUCED THE ASSESSMENT RECORDS AND POINTED OUT THAT NOTICE UNDE R SECTION 148 OF THE ACT WAS ISSUED AT THE ADDRESS OF THE ASSESSEE. HE P LACED ON RECORD THE COPY OF THE NOTICE ISSUED U/S 148 OF THE ACT DATED 24.5.2006. ITA NO.6130/DEL/2012 3 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE LIMITED ISSUE WHICH ARISES IN THE PRESENT APPEAL IS WHETHER THE NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSE SSEE OR NOT. SO, CONSEQUENT THERETO WHETHER SUCH NOTICE WAS SERVED U PON THE ASSESSEE OR NOT. THE ASSESSEE WAS A NON-RESIDENT AND HAD NO SOU RCE OF INCOME IN INDIA, HENCE WAS NOT FILING ANY RETURN OF INCOME IN INDIA. THE AO RECEIVED CERTAIN INFORMATION WITH REGARD TO THE SALE OF PROP ERTY JOINTLY BY THE ASSESSEE WITH OTHER CO-OWNERS IN INDIA. DURING THE COURSE OF SEARCH ON ONE OF THE CO-OWNER, ONE DOCUMENT WAS FOUND AND SEI ZED; ACCORDING TO WHICH THE CASH CONSIDERATION WAS PAID OVER AND ABOV E THE AMOUNT DECLARED IN THE REGISTERED SALE DEED. THE ASSESSING OFFICER HAD ISSUED THE NOTICE UNDER SECTION 148 OF THE ACT DATED 24.5.2006 ON THE FOLLOWING ADDRESS OF THE ASSESSEE:- SHRI. DEEPAK AHLUWALIA, P.O. BOX NO. 6006, II DAWSON STREET, POLYMOUTH, NEW ZEALA ND. 6. THE ASSESSEE CLAIMS THAT HIS CORRECT ADDRESS WAS AS UNDER:- SHRI. DEEPAK AHLUWALIA, P.O. BOX NO. 665, 46 DAWSON STREET, POLYMOUTH, NEW ZEAL AND. 7. THE ASSESSMENT RECORDS WERE PRODUCED BY THE LEAR NED DR FOR THE REVENUE FOR OUR PERUSAL. THE COPY OF THE NOTICE ISS UED UNDER SECTION 148 OF THE ACT ON P.O. BOX NO. 6006 IS AVAILABLE ON R ECORD. THIS IS DATED 24.5.2006. THEREAFTER, ANOTHER LETTER IS ISSUED BY THE AO DATED 7 TH SEPTEMBER, 2007 IN WHICH THE ADDRESS OF THE ASSESSE E IS MENTIONED AT P.O. BOX NO. 665. IN THE SAID LETTER, IT IS MENTI ONED THAT NOTICE UNDER ITA NO.6130/DEL/2012 4 SECTION 148 OF WAS ISSUED ON P.O. BOX NO. 6006 AND THE ASSESSEE WAS REQUIRED TO FURNISH THE RETURN OF INCOME WITHIN 30 DAYS IN THE PRESCRIBED FORM FOR THE ASSESSMENT YEAR 2002-03. THE AO NOTES THAT THE SAID NOTICE HAD NOT BEEN COMPLIED WITH. HE DIRECTS THE ASSESSEE TO FURNISH THE RETURN OF INCOME IN THE PRESCRIBED FORM FOR ASSESSMENT YEA R 2001-02. IT MAY BE MENTIONED HEREIN ITSELF THAT NOTICE UNDER SECTION 1 48 WAS ISSUED FOR ASSESSMENT YEAR 2001-02. 8. THE CORRECT ADDRESS OF THE ASSESSEE WAS P.O. BO X NO. 665. THE AO HAD ADMITTEDLY SENT NOTICE UNDER SECTION 148 AT P. O. BOX NO. 6006 AND THE SAME CANNOT BE SAID TO BE ISSUED / SERVED UPON THE ASSESSEE AS THE CORRECT ADDRESS OF THE ASSESSEE WAS NOT MENTIONED I N THE SAID NOTICE. HENCE, WE HOLD THAT THE INITIATION OF PROCEEDINGS U NDER SECTION 148 OF THE ACT SUFFERS FROM INFIRMITY. 9. ANOTHER ASPECT WHICH NEEDS TO BE KEPT IN MIND IS THAT THE RE- ASSESSMENT PROCEEDINGS HAVE BEEN INITIATED FOR ASSE SSMENT YEAR 2001-02 WHEREAS THE SALE TRANSACTION HAS BEEN UNDERTAKEN ON 16 TH JUNE, 2001 I.E. RELATING ASSESSMENT YEAR 2002-03. THE COPIES OF THE REGISTERED SALE DEEDS ARE AVAILABLE IN THE CASE OF S.P.S. AHLUWALIA VS. A CIT CENTRAL CIRCLE-12 IN ITA NO. 2429/DEL/2012 RELATING TO ASSESSMENT YEAR 2 004-05 AND IN THESE FACTS ALSO THE INITIATION OF RE-ASSESSMENT PROCEEDI NGS FOR ESCAPEMENT OF INCOME ON ACCOUNT OF THE CASH COMPONENT RELATING TO THE SALE OF THE PROPERTY SUFFERS FROM INFIRMITY. HENCE THE INITIATI ON OF RE-ASSESSMENT PROCEEDINGS AND THE CONSEQUENT ORDER PASSED THERE U NDER ARE BOTH BAD AND INVALID IN LAW. ITA NO.6130/DEL/2012 5 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JANUARY 2020. SD/- SD/- (B.R.R.KUMAR) (SUSH MA CHOWLA) '() '() '() '() /ACCOUNTANT MEMBER ! ! ! ! / VICE PRESIDENT / # DATED :30 TH JANUARY, 2020 * AMIT KUMAR * '60.278'729 COPY OF THE ORDER IS FORWARDED TO : 1. ,- / THE APPELLANT 2. ./,- / THE RESPONDENT 3. : ; < / THE CIT(A) 4. = : / THE PR. CIT 5. 6. 7>?.2 / DR, ITAT, DELHI ?$+@9 GUARD FILE. '6 '6 '6 '6 / BY ORDER , /72.2 // TRUE COPY // B)C , ASSISTANT REGISTRAR, ITAT, DELHI