MITHLESH, DADRI V. ITO, WARD- 2(2), NOIDA

ITA 6150/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9342 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 26-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Non compliance; Set aside
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NOS. 6149 & 6150/DEL/2018 ASSESSMENT YEAR: 2008-09 SH. MITHLESH KUMAR PIYUSH & CO., CA, C-5, LGF, LAJPAT NAGAR-3, NEW DELHI. PAN NO. CSSPM7368F VS ITO WARD 2(2) NOIDA APPELLANT RESPONDENT ASSESSEE BY SH. ARVIND KUMAR, ADV. SH. VIRENDRA KUMAR GOEL, FCA REVENUE BY SHRI S.L. ANURAGI, SR. DR ORDER THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(APPEALS)-1, NOIDA DATED 24.02.2017 FOR THE A Y 2008-09, ORDER DATED 29.12.2017 FOR AY 2008-09. ITA NO. 6150/DEL/2018 : 2. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE ORDERS OF THE LOWER AUTHORITIES AND PERUSED THE MATERIAL AVAI LABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSMENT WAS FRAMED U/S 147 READ WITH SECTION 144 OF THE ACT ON 03.03.2016 ASSESSING TOTA L INCOME AT RS. DATE OF HEARING 02.04.2019 DATE OF PRONOUNCEMENT 04.04.2019 2 ITA NO. 6149 & 6 150/DEL/2018 SH. MITHLESH 4,15,000/-. THIS ORDER WAS PASSED IN PURSUANCE TO NOTICE ISSUED ON 13.03.2015 U/S 148 OF THE ACT. 3. ON APPEAL, CIT(A) DISMISSED THE APPEAL OF THE AS SESSEE FOR NON COMPLIANCE WITHOUT ANY DISCUSSION ON THE MERITS OF THE GROUNDS OF APPEAL RAISED BEFORE HIM. 4. THE AR OF THE ASSESSEE SUBMITTED THAT THE NOTICE OF HEARING ISSUED BY THE CIT(A) WAS NOT RECEIVED BY THE ASSESS EE. THEREFORE, COMPLIANCE COULD NOT BE MADE. 5. BOTH THE PARTIES BEFORE US AGREED THAT THE MATTE R SHOULD BE RESTORED TO THE FILE OF THE CIT(A) FOR ALLOWING ONE MORE OPPORTUNITY TO THE ASSESSEE. IN MY CONSIDERED OPINION, IT SHAL L ALSO BE IN THE INTEREST OF JUSTICE. THEREFORE, THE IMPUGNED ORDER OF THE CIT(A) IS SET ASIDE AND THE APPEAL IS RESTORED BACK TO THE FI LE OF CIT(A) FOR ADJUDICATION ON MERITS AFTER ALLOWING BOTH THE PART IES REASONABLE OPPORTUNITY OF HEARING. THUS, THIS APPEAL OF THE A SSESSEE IS TREATED AS ALLOWED AS ABOVE FOR STATISTICAL PURPOSE S. 6. I NOW PROCEED TO ADJUDICATE THE APPEAL IN ITA NO . 6149/DEL/2018. 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RE CORD. THE IMPUGNED ORDER OF ASSESSMENT WAS PASSED U/S 144 REA D WITH SECTION 147 BY THE AO IN PURSUANCE TO NOTICE DATED 18.3.2015 ISSUED U/S 148 OF THE ACT. 3 ITA NO. 6149 & 6 150/DEL/2018 SH. MITHLESH 8. I FIND THAT IN THE INSTANT CASE ALREADY NOTICE U /S 148 WAS ISSUED BY THE VERY SAME AO ON 13.03.2015 WHICH CULM INATED IN THE ORDER OF ASSESSMENT ON 3.3.2016. THUS, ON 18.3 .2015 AN ASSESSMENT PROCEEDING WAS PENDING BEFORE THE SAME A O. THE DR AGREED BEFORE US THAT ON 13.3.2015 WHEN 148 NOTICE WAS ISSUED IN THE INSTANT CASE ALREADY AN ASSESSMENT PROCEEDING I NITIATED ON THE BASIS OF 148 NOTICE DATED 18.3.2015 WAS PENDING BEF ORE THE AO. THEREFORE, NOTICE DATED 18.3.2015 WAS BAD IN LAW. CONSEQUENTLY, THE IMPUGNED ORDER OF THE ASSESSMENT DATED 3.3.2016 DETERMINING THE TOTAL INCOME AT RS. 39,15,000/- IS BAD IN LAW A ND VOID AB INITIO . THERE CANNOT BE TWO PARALLEL ASSESSMENT AGAINST THE SAME ASSESSEE FOR THE SAME ASSESSMENT YEAR. I, THEREFOR E, QUASH THE IMPUGNED ASSESSMENT ORDER AND ALLOW THE APPEAL OF T HE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. 10. IN THE RESULT, THE APPEAL IN ITA NO. 6150/D/201 8 IS ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL IN ITA NO. 6149/D/2018 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/04/2019 SD/- (N.S. SAINI) ACCOUNTANT MEMBER DATED: 04.04.2019 *KAVITA ARORA 4 ITA NO. 6149 & 6 150/DEL/2018 SH. MITHLESH COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 04/04/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04/04/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 04/04 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 05/04 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 05/04 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 05/0 4 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER