Amit Singhal, New Delhi V. ITO, New Delhi

ITA 6191/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7411 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 18-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 23-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S K SINGHAL
• Keywords: Depreciation; Difference of opinion; Change of opinion; Reassessment proceedings; Capital expenditure
• Section: 143(3); 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-3 NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER ITA NO. 6191/DEL/2015 A.Y. 2007-08 AMIT SINGHAL VS. INCOME-TAX OFFICER, A-108, GUJRANWALA TOWN, WARD 36(5), NEW DELHI. NEW DELHI. PAN: AAJPS 3839 G ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI S.K. SINGHAL ADV. . RESPONDENT BY : SHRI RAJESH KUMAR SR. DR DATE OF HEARING : 18-08-2016 DATE OF ORDER : 22/08-2016. O R D E R PER S.V. MEHROTRA, A.M:- THIS IS ASSESSEES APPEAL AGAINST THE CIT(A)-32, NE W DELHIS ORDER DATED 30.10.2015 IN APPEAL NO. 94/243/2013-14, RE LATING TO A.Y. 2007-08. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, I N THE RELEVANT ASSESSMENT YEAR, FILED HIS RETURN OF INCOME DECLARING TAXABLE INCOME OF RS. 3,98,890/-. ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) VIDE O RDER DATED 16.12.2009 AT AN INCOME OF RS. 4,56,690/-. THE AO ISSUED NOTIC E U/S 148 ON 29.8.2012. THE AO HAS MENTIONED IN THE ASSESSMENT ORDER THAT T HIS NOTICE WAS ISSUED IN ORDER TO EXAMINE THE DEPRECIATION CLAIMED AND AVAIL ED BY THE ASSESSEE IN RESPECT OF ITEMS LIKE MACHINERY, KNEADER AND BOILER . VERIFICATION OF EXPENSES CLAIMED FOR PURCHASE OF CONTROL PANEL & THYRISTORS AND FURTHER IN ORDER TO EXAMINE THE HOUSEHOLD WITHDRAWAL EXPENSES SHOWN UND ER THE HEAD DIRECT 2 EXPENSES, CLAIMED DURING THE YEAR UNDER ASSESSMENT . THE ASSESSMENT WAS COMPLETED AT A TOTAL INCOME OF RS. 17,20,811/- AFTE R MAKING A TOTAL ADDITION OF RS. 13,21,921/-. 2.1. BEFORE LD. CIT(A) THE ASSESSEE HAD, INTER ALIA , CHALLENGED THE PROCEEDINGS INITIATED U/S 148 ON THE GROUND THAT SI NCE THE ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3) WAS SET ASIDE BY THE TRIBUNAL ON 7.8.2012, ANY FURTHER ASSESSMENT BEYOND STATUTORY L IMITATION WAS OF NO CONSEQUENCE AND UNLAWFUL. LD. CIT(A) TOOK NOTE OF T HE GROUNDS OF APPEAL IN THE APPEAL FILED BEFORE ITAT, WHICH HAVE BEEN REPRO DUCED AT PAGE 7 OF HIS ORDER AND CONCLUDED THAT PRESENT ISSUES, NAMELY, DE PRECATION CAPITAL EXPENDITURE IN THE FORM OF PURCHASE OF CONTROL PANE LS AND THYRISTORS AND HOUSE HOLD WITHDRAWAL WERE NOT THE SUBJECT MATTER O F APPEAL EITHER BEFORE CIT(A) OR BEFORE ITAT. HE, THEREFORE, REJECTED THE ASSESSEES CONTENTION THAT ONCE ITAT HAS PASSED THE ORDER, NO REASSESSMENT CAN BE DONE IN THE SAME ASSESSMENT ORDER. 3. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AND HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. WHETHER THE LEARNED CIT(A) WAS JUSTIFIED IN DIS MISSING APPEAL IN THE FACTS AND IN LAW; 2. WHETHER THE CIT(A) WAS JUSTIFIED IN DISMISSING A PPEAL WITHOUT CONSIDERING SUPPORT FROM CITED / VARIOUS CA SE LAWS UPTO HON'BLE SUPREME COURT OF INDIA; 3. WHETHER REASSESSMENT COULD BE VALID TO CIRCUMVEN T SETTING ASIDE OF ORIGINAL ASSESSMENT U/S 143(3) BY HON'BLE ITAT ON 07.08.2012; 3 4. WHETHER CHANGE OF OPINION WAS JUSTIFIED TO REASS ESS UNDER SECTION 148, INITIATING PROCEEDINGS ON 29.08. 2012, AFTER OVER 4 YEARS OF ASSESSMENT YEAR 2007-08; 5. WHETHER PARALLEL PROCEEDINGS DATED 29.08.2012 U/ S 148 BE VALID BEFORE CONCLUDING PROCEEDINGS DATED 23.03. 2012U/S 154; 6. WHETHER THE AUDIT REPORT IN FORM 3CB U/S 44AB DA TED 01/09/2007 AND STATEMENT OF PARTICULARS IN FORM 3CD , PARTICULARLY AT CLAUSE 14 AND 17(B) COULD BE IGNORE D WITHOUT ANY FINDING AGAINST IT, WHATSOEVER? 7. WHETHER RULE OF LAW/ LAW OF PRECEDENCE BE OVERLO OKED, SIMPLY TO REASSESS AND DISMISS APPEAL ARBITRARILY I N PREJUDICED MANNER, WITHOUT APPLICATION OF MIND ON THE FACTS/ S UBMISSIONS, IGNORING EVEN RECENT STRICTURES OF JURISDICTIONAL H IGH COURT AGAINST UNLAWFUL HARASSMENT OF ASSESSES 4. THE ASSESSEE PERSONALLY APPEARED AND REFERRED TO PAGE 34 OF APPEAL SET WHEREIN THE TRIBUNALS ORDER IN ORIGINAL PROCEEDING S IS CONTAINED. HE FURTHER REFERRED TO PAGE 29 OF PB, WHEREIN THE NOTICE DATE D 29.8.2012, ISSUED U/S 148 IS CONTAINED AND POINTED OUT THAT THE NOTICE HA S BEEN ISSUED BEYOND 4 YEARS FROM THE END OF ASSESSMENT YEAR. HE FURTHER P OINTED OUT THAT NO REASONS HAVE BEEN SUPPLIED ALONG WITH THE NOTICE. 5. LD. DR SUBMITTED THAT THE ISSUES RAISED IN THE P RESENT PROCEEDINGS WERE NOT SUBJECT MATTER OF ORIGINAL ASSESSMENT PROC EEDINGS AND, THEREFORE, REASSESSMENT NOTICE WAS VALID. 6. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDL Y THE NOTICE HAS BEEN ISSUED BEYOND FOUR YEARS FROM THE END OF THE RELEVA NT ASSESSMENT YEAR, THEREFORE, IN VIEW OF PROVISO TO SECTION 147, UNLES S THERE WAS FAILURE ON THE 4 PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MA TERIAL FACTS NECESSARY FOR HIS ASSESSMENT, NO REASSESSMENT PROCEEDINGS COULD BE IN ITIATED. FURTHER, I FIND THAT NO REASONS HAVE BEEN SUPPLIED ALONG WITH THE N OTICE IN WHICH MOST OF THE COLUMNS ARE BLANK. UNDER SUCH CIRCUMSTANCES, I AM OF THE OPINION THAT THE REASSESSMENT PROCEEDING INITIATED BY AO WAS BAD IN LAW, MORE PARTICULARLY BECAUSE THE WHOLE OBJECT WAS TO MAKE F RESH INQUIRES, WHICH IS NOT PERMISSIBLE, MORE PARTICULARLY, BEYOND FOUR YEA RS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 22-08-2016. SD/- ( S.V. MEHROTRA ) ACCOUNTANT MEMBER DATED: 22-08-2016. MP: C OPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR