Ishanam Malviya, Noida V. ITO, Ward-1(5), Noida

ITA 6386/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2985 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 17-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K JIWANI
• Keywords: Reopening of assessment; Opportunity of being heard; Period of limitation; Time period of passing order
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6386/DEL/2017 ASSESSMENT YEAR: 2009-10 ISHANAM MALVIYA, VS. ITO, WARD-1(5), B-86, SECTOR-83, NOIDA NOIDA-201305 UTTAR PADESH (PAN: ANCPM2909H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PRATAP GUPTA, CA REVENUE BY : SH. V.K. JIWANI, SR. DR ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 30.03.2017 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-I, NOIDA RELEVANT TO ASSESSMENT YEAR 200 9-10. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THE LD. CIT(A) IS NOT JUSTIFIED IN LAW AND FACT S AND CIRCUMSTANCES OF THE CASE IN DISMISSING THE APPEAL FILED BY THE APPELLANT BEING DEFECTIVE AND NOT BEIN G PROSECUTED BY THE APPELLANT, WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE AND ISSUING AND SERVING ANY NOTICE OF HEARING OF APPEAL TO THE APPELLANT AND THUS ORDER OF LD CIT(A) IS DESERVES T O BE SET ASIDE. 2. WITHOUT PREJUDICE TO GROUND OF APPEAL NO. 1, EVE N OTHERWISE LD CIT(A) IS NOT JUSTIFIED IN LAW AND FAC TS AND CIRCUMSTANCES OF THE CASE IN PASSING THE ORDER BEFORE THE DATE OF HEARING WITHOUT GIVING ANY 2 OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND THUS ORDER OF LD CIT (A) DESERVES TO BE QUASHED CONFIRMING THE REOPENING OF ASSESSMENT MADE BY ASSESSING OFFICER, UNDER SECTION 147 OF THE, L. T. ACT. 3. WITHOUT PREJUDICE TO GROUND OF APPEAL NO. 1 AND 2 LD CIT(A), WITHOUT APPRECIATING THE CORRECT FACTS O F THE CASE IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN DISMISSING THE APPEAL OF APPELLANT FOR NON PROSECUTION AND NOT DECIDING THE APPEAL ON THE MERITS OF THE CASE. 4. THAT LD CIT(A), WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE I. T. ACT WITHOUT COMPLYING WITH THE PROVISION OF SECTION 147 TO 151 OF THE I. T. ACT. 5. THAT LD CIT(A), WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN HOLDING THE ASSESSMENT ORDER UNDER SECTION 144/147 OF THE I. T. ACT AS VALID IN THE ABSENCE OF ANY VALID SERV ICE OF NOTICE UNDER SECTION 148 OF THE I.T. ACT UPON TH E ASSESSEE WITHIN THE LIMITATION PERIOD. 6. THAT LD CIT(A), WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN HOLDING THE ASSESSMENT ORDER UNDER SECTION 144/147 OF THE I. T. ACT AS VALID WITHOUT PROVIDING THE COPY OF REASONS RECORDED FOR REOPENING OF ASSESSMENT AND THEREFORE ORDER SO PASSED BY LD. ASSESSING OFFICER SHOULD BE QUASHED. 3 7. THAT LD CIT(A), WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN HOLDING THE ASSESSMENT ORDER UNDER SECTION 144/147 OF THE I.T. ACT AS VALID WITHOUT ISSUING ANY NOTICE UNDER SECTION 143(2) AS PER PROVISO OF SECTION 143(2) AND THEREFORE ORDER SO PASSED SHOULD BE QUASHED. 8. THAT ID CIT(A), WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN HOLDING ORDER PASSED BY LD ASSESSING OFFICER UNDER SECTION 144/147 OF THE I.T. ACT AS VALID WITHOUT COMPLYING WITH THE PROVISION OF SECTION 144 AND THEREFORE ORDER SO PASSED NEEDS TO BE QUASHED. 9. THAT LD CIT(A), WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ASSESSMENT' MADE BY LD ASSESSING OFFICER AT THE TOTAL INCOME OF RS. 37,66,000/- IGNORING THE RETURN OF INCOME FILED BY APPELLANT BY MAKING THE ADDITION OF RS. 37,66,000/- ON ACCOUNT OF PURCHASE CONSIDERATION OF IMMOVABLE PROPERTY PAID BY APPELLANT FROM ALLEGED UNDISCLOSED SOURCES. 10. ASSESSEE HAS EVERY RIGHT TO MAKE, ADD, DELETE , MODIFY OR ALTER ANY GR6UNDS OF APPEAL AT THE TIME OF HEARING. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. DURING THE HEARING, LD. A.R. OF THE ASSESSEE, HA S STATED THAT AO HAS PASSED THE EXPARTE ORDER DATED 29.12.2006 U/ S. 144/147 OF THE INCOME TAX ACT, 1961 AND LD. CIT(A) ALSO PASSE D THE EXPARTE 4 ORDER DATED 30.3.2017 WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM BEFORE THE AU THORITIES BELOW. HE HAS REQUESTED THAT ASSESSEE HAS ALL THE NECESSAR Y EVIDENCES AND CAN PRODUCE BEFORE THE AO, IF THIS BENCH GIVE AN OP PORTUNINTY TO THE ASSESSEE FOR PRODUCING ALL THE NECESSARY DOCUMENTS BEFORE THE AO. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I HAVE ALSO GONE THROUGH THE ORDER PASSED BY THE REVE NUE AUTHORITIES AS WELL AS THE CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. I FIND FORCE IN THE ARGUMENTS OF THE LD. CO UNSEL OF THE ASSESSEE THAT AO HAS COMPLETED THE ASSESSMENT U/S. 144/147 OF THE INCOME TAX ACT, 1961 VIDE EXPARTE ORDER DATED 29.12 .2006 U/S. 144/147 OF THE INCOME TAX ACT, 1961 AND SIMILARLY , LD. CIT(A) ALSO PASSED THE EXPARTE ORDER DATED 30.3.2017 AND BOTH T HE LOWER AUTHORITIES HAVE NOT PROVIDED SUFFICIENT OPPORTUNIT Y TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM. I FURTHER FIND THAT L D. CIT(A) HAS PASSED THE IMPUGNED ORDER WHICH IS A NON-SPEAKING ORDER A ND WITHOUT CONSIDERING THE MERITS OF THE CASE WHICH IS NOT SU STAINABLE IN THE EYES OF LAW. THEREFORE, IN THE INTEREST OF JUSTICE, THE ISSUES IN DISPUTE ARE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE A FRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER ON 02.05.2018 AT 11.00 AM AND FILE ALL THE NECESSARY DOCUMENTS TO SUBSTANTIATE HIS CASE AND FULLY COOPERATE WITH THE AO IN THE 5 PROCEEDINGS. SINCE THIS ORDER HAS BEEN PRONOUNCED I N THE OPEN COURT, THERE IS NO NEED TO SEND THE NOTICE TO THE PARTIES. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 13-03-2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 13-03-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.