Deepa Chauhan, Ghaziabad V. ITO, Ward-1(2), Ghaziabad

ITA 6441/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7709 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 08-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Condonation of delay; Set aside
• Section: 271(1)(c); 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6441/DEL/2018 (A.Y. 2014-15) DEEPA CHAUHAN, C/O C.S. ANAND & CO., 104, PANKAJ TOWER, 10-LSC, SAVITA VIHAR, NEW DELHI 92 (PAN : AFIPC8922J) VS. ITO, WARD 1(2), GHAZIABAD ASSESSEE BY SH. C.S. ANAND, ADV. REVENUE BY SH. S.L. ANURAGI, SR. DR. ORDER ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUGNE D ORDER DATED 27.3.2018 PASSED BY LD. CIT(A), GHAZIABAD ON THE FO LLOWING GROUNDS:- 1. THAT ON THE PECULIAR FACTS OF THE CASE AND UNDE R THE LAW, THE ID. CIT(A) GHAZIABAD HAD ERRED IN HOLD ING THAT 'THERE IS NO NEED TO PASS AN ORDER U/S 127'. THE ITO, WARD-35(3) NEW DELHI HAD TRANSFERRED THE ASSESSMENT FOLDER TO THE ITO, WARD-1 (2) GHAZIABAD ON HIS OWN, WITHOUT SUPPORT OF THE ORDER U/S 127 WHICH WAS REQUIRED TO BE PASSED BY THE LD. PCIT, DELHI-12, NEW DELHI. 2. THAT ON THE PECULIAR FACTS OF THE CASE AND UNDER THE LAW, THE ID. CIT(A) GHAZIABAD HAS ERRED IN HOLD ING THAT THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE APROPOS JURISDICTION, ARE NOT MAINTAINABLE. ON GETTING THE NOTICE DT. 22.09.2015 ISSUED BY THE ITO, WARD-1(2) GHAZIABAD U/S 143(2) IN THE NAME OF DEEPAK CHAUHAN-PAN: AIMPK3941L, THE ASSESSEE HAD INSTRUCTED CA VINESH MAHESHWARI TO MEET THE ITO, WARD-1 (2) GHAZIABAD AND APPRISE HIM THAT THE SAID NOTICE DID NOT BELONG TO HER. 2 WHEN CA VINESH MAHESHWARI HAD APPRISED SUCH FACTS, THE ITO, WARD-1(2) GHAZIABAD HAD THEN & THERE VERIFIED THAT PAN:AIMPK3941L BELONGED TO TAJINDER KAUR AND THEN ASSURED HIM THAT HE SHALL BE CLOSING THE MATTER. 3. THAT THE ASSESSMENT ORDER PASSED BY THE LD. ITO WARD 1(2) GHAZIABAD IS LIABLE TO BE ANNULLED, BECAU SE NO VALID NOTICE U/S 143(2) IN THE NAME OF THE ASSES SEE WAS REACHED INTO THE HANDS OF THE ASSESSEE. 4. THAT THE ASSESSMENT ORDER PASSED BY THE ID. ITO WARD 1(2) GHAZIABAD IS LIABLE TO BE ANNULLED, BECAU SE THE ID. ITO WARD 1(2) GHAZIABAD HAD NOT SPECIFIED A S TO WHETHER HE IS PASSING THE ASSESSMENT ORDER U/S 144 OR U/S 143(3). THE LD. CIT(A) HAD NOT ADJUDICATED THIS GROUND OF APPEAL. 5. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE ADDITION OF RS. 37,36,681/- MADE BY THE ID. ITA WARD 1(2) GHAZIABAD DESERVES TO BE DELETED FIRSTLY BECAUSE NO PARTICULAR PROVISION OF IT ACT 1961 WAS MENTIONED BY THE LD. ITO, WARD-1(2) GHAZIABAD, AND SECONDLY BECAUSE IT WAS NOT THE MONEY OF THE ASSESS EE. NOTE: THE ASSESSEE CRAVES LEAVE TO AMEND/ MODIFY AFOREMENTIONED GROUNDS OF APPEAL AND/OR TO RAISE ADDITIONAL GROUND(S) OF APPEAL, AT ANY TIME DURING THE COURSE OF APPELLATE PROCEEDINGS. 2. 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 CONVENIENCE. 3. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE HAS REITERATED THE CONTENTS OF THE APPLICATION FOR CONDONATION OF DELAY, WHICH ARE REPRODUCED AS UNDER:- SUB: APPLICATION FOR 'CONDONATION OF DELAY'. 3 IT IS RESPECTFULLY SUBMITTED THAT THE ASSESSEE HAD FILED AN APPEAL AGAINST THE ASSESSMENT ORDER DT. 28.12.20 16 [PASSED BY THE ID. ITO, WARD- 1(2), GHAZIABAD] IN T HE OFFICE OF THE ID. CIT(A)- GHAZIABAD ON 25.01.2017. THE APPELLATE PROCEEDINGS WERE ATTENDED BY THE ASSESSEE'S COUNSEL, WHO HAD NOT ONLY FILED A SHEET CONTAINING THE REVISED GROUNDS OF APPEAL BUT ALSO M ADE ELABORATE SUBMISSIONS AS WELL AS REJOINDER W.R.T. T HE ID. A.O.'S REMAND REPORT. THAT ON RECEIVING A LETTER DT. 30.05.2018 FROM THE ITO, WARD-1(2) GHAZIABAD CONTAINING SUBJECT 'REMIND ER SHOW CAUSE NOTICE U/S 271(1)(C) OF THE !T ACT 1961 - A.Y. 2014-15-REGARDING', THE ASSESSEE HAD NOTICED T HAT THERE WAS A REFERENCE OF THE APPELLATE ORDER DT. 27.03.2018. THEREAFTER VIDE LETTER DT. 08.06.2018 ( FILED ON 12.06.2018), THE ASSESSEE HAD REQUESTED THE ID. C!T(A) GHAZIABAD TO SERVE THE SAID APPELLATE ORDER UPON HER. THAT ON THE INSTRUCTIONS OF THE ID. C!T(A) GHAZIABAD, THE ASSESSEE HAD DEPOSITED RS. 500/- ON 04.07.2018. THEREAFTER VIDE LETTER DT. 05.07.2018, THE ASSESSEE HAD PROVIDED THE PROOF OF PAYMENT OF RS. 500/- AND ONCE AGAIN REQUESTED THE ID. CIT(A) GHAZIABAD TO SUPPLY THE SAID APPELLATE ORDER. THAT AFTER TAKING THE AUTHORIZATION LETTER OF THE ASSESSEE IN FAVOUR OF SH. KAMAL KANT, THE OFFICE OF THE ID. CIT(A) GHAZIABAD HAD HANDED OVER THE APPELLATE ORDER (WHICH WAS LYING IN ORIGINAL IN THE APPEAL FO LDER MAINTAINED BY THEM) TO THE SAID SH. KAMAL KANT (FOR & ON BEHALF OF THE ASSESSEE) ON 30.07.2018. 4 THAT SINCE THE ASSESSEE WAS NOT HAVING THE PROOF OF DATE OF SERVICE OF THE ORDER OF THE ID CIT(A) GHAZIABAD, THE ASSESSEE HAD MOVED A LETTER IN THE OFFICE OF THE ID.CIT(A) GHAZIABAD ON 18.09.2018 (CO PY ENCLOSED) REQUESTING THE ID CIT(A) GHAZIABAD TO PRO VIDE HER PROOF THAT THE APPELLATE ORDER WAS HANDED OVER ON 30.07.2018. DESPITE REPEATED VISITS TO THE OFFICE O F THE ID CIT(A) GHAZIABAD FOR OBTAINING SUCH PROOF, THE ASSESSEE COULD NOT OBTAIN THE SAME. THAT TO AVOID ANY FURTHER DELAY IN FILING OF APPEAL BEFORE THE HON'BLE ITAT, NEW DELHI, THE ASSESSEE IS HEREBY FILING THE APPEAL NOW. IN THIS PROCESS IN ADVERTENT DELAY OF FEW DAYS HAS OCCURRED. THAT THE ASSESSEE IS HEREBY MOVING THIS FORMAL APPLICATION SEEKING CONDONATION OF DELAY IN FILLING THE APPEAL. IN VIEW OF THE ABOVE STATED FACTS, CIRCUMSTANCES AND THE SUBMISSIONS, THIS HON'BLE BENCH IS REQUESTE D TO KINDLY CONDONE THE INADVERTENT DELAY OF FEW DAYS. SUBMITTED. 3.1 FURTHER, LD. COUNSEL FOR THE ASSESSEE HAS FILED A LETTER DATED 8.4.2019 OF THE ASSESSEE SEEKING PERMISSION FOR RA ISING AN ADDITIONAL GROUND OF APPEAL, WHICH READ AS UNDER:- SUB: LETTER SEEKING PERMISSION FOR RAISING AN ADDI TIONAL GROUND OF APPEAL IT IS RESPECTFULLY SUBMITTED THAT AGAINST THE ORDER DT. 27.03.2018, PASSED BY THE LD CIT(A) GHAZIABAD IN HE R CASE FOR A.Y. 2014-15, THE ASSESSEE HAD FILED AN APPEAL ON PRESCRIBED FORM 36 BEFORE THIS ESTIMATED INSTITUTIO N ON 08.10.2018. VIDE FORM 36 READ WITH ITS ENCLOSURE, B EING THE 5 SHEET CONTAINING THE GROUNDS OF APPEAL, THE ASSESSE E HAD RAISED 5 GROUNDS OF APPEAL. WHILE PREPARING THE APPEAL, IT HAS BEEN RECENTLY NO TICED THAT THE ID CIT(A) HAD NOT ADJUDICATED THE REVISED GROUN DS OF APPEAL (WHICH WERE RAISED BY THE ASSESSEE VIDE LETT ER DT. 13.11.2017 (COPY ENCLOSED). A PERUSAL OF TOP PARA O N PAGE 4 OF THE IMPUGNED ORDER REVEALS THAT THE ID CIT(A) HA D RECORDED AS UNDER:- 'DURING THE COURSE OF APPELLATE PROCEEDINGS APPELLANT REVISED THE GROUNDS WHICH WERE NOT DULY SIGNED BY THE APPELLANT VIDE DT. 13.11.2017 THUS REVISED GROUNDS ARE NOT BEING ADJUDICATED'. IN THIS CONTEXT, IT IS WORTH POINTING OUT HERE THAT (I) THE ID. CIT(A) HAD HERSELF SENT THE LETTER CONTAINING THE R EVISED GROUNDS OF APPEAL TO THE LD A.O. FOR HIS COMMENTS; (II) THE ASSESSEE HAD MADE SUBMISSIONS IN THE LIGHT OF THE R EVISED GROUNDS OF APPEAL; AND (III) THE ID A. O. HAD SUBMI TTED HIS REPORT ON THE REVISED GROUNDS OF APPEAL AND THE WRI TTEN SUBMISSIONS MADE BY THE ASSESSEE. IT IS RESPECTFULLY STATED THAT WHILE PREPARING THE GROUNDS OF APPEAL AS PER FORM 36, SUCH VITAL FACT HAD INADVERT ENTLY GONE UNNOTICED BY THE ASSESSEE. THE ASSESSEE IS HEREBY S EEKING PERMISSION OF THIS HON'BLE COURT TO RAISE AN ADDITI ONAL GROUNDS OF APPEAL, AS UNDER:- THAT ON THE FACTS OF THE CASE, THE ID CIT(A) HAS ER RED IN NOT ADJUDICATING THE REVISED GROUNDS OF APPEAL, ON THE INCORRECT FINDING OF FACT THAT THE REVISED GROUNDS OF APPEAL WERE NOT SIGNED BY THE ASSESSEE THIS HON'BLE COURTS IS REQUESTED TO KINDLY ADMIT THIS ADDITIONAL GROUNDS OF APPEAL. THIS HONBLE COURTS IS REQUESTED TO KINDLY ADMIT TH IS ADDITIONAL GROUNDS OF APPEAL. 3.2 IN VIEW OF ABOVE, HE REQUESTED TO ADMIT THE AFO RESAID ADDITIONAL GROUND AND ALSO REQUESTED TO DIRECT THE LD. CIT(A) TO DECIDE THE REVISED GROUNDS OF APPEAL FIRST WHICH WERE LEGAL IN NATURE, RAISED BEFORE THE LD. CIT(A) VIDE SIGNED LETTER DATED 13.11.2017, HOWEVE R, THE SAME WERE NOT ADJUDICATED BY HIM IN HIS APPELLATE ORDER. THEREFO RE, HE REQUESTED THAT THE SAID REVISED GROUNDS IN DISPUTE MAY BE SET ASI DE TO THE FILE OF THE LD. 6 CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAME AFRES H, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . IN SUPPORT OF HIS CONTENTION, THE ASSESSEE HAS ALSO FILED AN AFFIDAVI T. 4. ON THE CONTRARY, LD. DR HAS NOT RAISED ANY SERIO US OBJECTION ON THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE. HE ALS O RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL; IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY; LETTER DATED 13.11.2017 ADDRESSED TO THE LD. CIT(A) SEEKING MODIFICATION OF GROUNDS OF APPEAL AND THE LETTER DATED 8.4.2019 SEEKING PERMISSION FOR R AISING AN ADDITIONAL GROUND OF APPEAL AND THE AFFIDAVIT OF THE ASSESSEE. I AM OF THE CONSIDERED VIEW THAT IN VIEW OF THE DECISION OF THE HONBLE SU PREME COURT OF INDIA IN THE CASE OF NTPC LIMITED 229 ITR 383, THE ADDITIO NAL GROUND RAISED BY THE ASSESSEE IS PURELY LEGAL GROUND AND DID NOT REQUIRE FRESH FACTS WHICH IS TO BE INVESTIGATED AND GOES TO THE ROOT OF THE MATTER. IN THE INTEREST OF JUSTICE, I ADMIT THE FOLLOWING ADDITIONAL GROUND AND SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME IN ACCORDANCE WITH LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THAT ON THE FACTS OF THE CASE, THE LD CIT(A) HAS ERRED IN NOT ADJUDICATING THE REVISED GROUNDS OF APPEAL, ON THE INCORRECT FINDING OF FACT THAT THE REVISED GROU NDS OF APPEAL WERE NOT SIGNED BY THE ASSESSEE. THIS HON'B LE COURTS IS REQUESTED TO KINDLY ADMIT THIS ADDITIONAL GROUNDS OF APPEAL. 5.1 I FURTHER FIND THAT WHILE DECIDING THE APPEAL, LD. CIT(A) HAS NOT ADJUDICATED THE REVISED GROUNDS OF APPEAL WHICH WER E RAISED BY THE ASSESSEE VIDE LETTER DATED 13.11.2017, A COPY THERE OF WAS ALSO PRODUCED DURING THE HEARING, WHICH ARE REPRODUCED AS UNDER:- BEFORE THE COMMISSIONER INCOME TAX (APPEAL), GHAZI ABAD IN RE: DEEPA CHAUHAN 7 C/O ARUNKETAN & ASSOCIATES 101 CSC DDA MARKET, PUSHPANJALI, DELHI 110 092 PAN: AFIPC8922J A.Y.: 2014-15 REF: APPEAL AGAINST ASSESSMENT ORDER DATED 28.12.2016 PASSED U/S. 144/143(3). SUB:- APPLICATION SEEKING MODIFICATION OF GROUNDS OF APPEAL. MADAM, IT IS RESPECTFULLY SUBMITTED THAT THE ASSESSEE HAD FILED AN APPEAL AGAINST THE ASSESSMENT ORDER DATED 28.12.2016, WHICH WAS PA SSED U/S 144/143(3) BY THE ID. ITO WARD 1(2) GHAZIABAD. AT T HE TIME OF FILING APPEAL ON FORM NO. 35, THE ASSESSEE HAD RAISED FEW GROUNDS OF APPEAL ON HER OWN. THE ASSESSEE HAD LATERON COME IN CONTACT W ITH AN EXPERIENCED PROFESSIONAL. WITH WHOM THE MATTER RELATING TO APPE AL WAS DISCUSSED. AS PER HIS ADVICE, THE GROUNDS OF APPEAL RAISED ORIGIN ALLY NEEDS TO BE REVISED. ACCORDINGLY, THE ASSESSEE IS HEREBY SEEKIN G YOUR HONOUR'S PERMISSION TO REVISE THOSE GROUNDS OF APPEAL AS UND ER: REVISED GROUNDS OF APPEAL 1. THAT THE ASSESSMENT ORDER PASSED BY THE ID. ITO WARD 1(2) GHAZIABAD IS LIABLE TO BE ANNULLED, BECAUSE NO VALI D NOTICE U/S 143(2) IN THE NAME OF THE ASSESSEE WAS ISSUED AND SERVED UPON THE ASSESSEE, WITHIN THE PRESCRIBED TIME LIMIT. 2. THAT THE ASSESSMENT ORDER PASSED BY THE LD. ITO WARD 1(2) GHAZIABAD IS LIABLE TO BE ANNULLED BECAUSE THE LD. ITO WARD 1(2) GHAZIABAD HAD ILLEGALLY ASSUMED JURISDICTION TO MA KE ASSESSMENT IN THE CASE OF THE ASSESSEE FOR AY 2014-15, IN THE ABS ENCE OF AN ORDER U/S 127 (WHICH WAS REQUIRED TO BE PASSES BY THE ID. PRO CIT DELHI-12, NEW DELHI). 3. THAT THE ASSESSMENT ORDER PASSED BY THE ID. ITO WARD 1(2) GHAZIABAD IS LIABLE TO BE QUASHED, BECAUSE WHILE PA SSING THE ASSESSMENT ORDER THE ID. ITO WARD 1(2) GHAZIABAD HA D NOT SPECIFIED THE PARTICULAR SECTION OF THE IT ACT, 1961. WITHOUT PREJUDICE 8 4. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE ADDITION OF RS. 37,36,681/- MADE BY THE ID. ITO WARD 1(2) GHAZIABAD DESERVES TO BE DELETED. IN ANY CASE, THE ADDITION MADE AT RS. 37,3 6,681/- IS HIGHLY EXCESSIVE. 5.2 AFTER GOING THROUGH THE REVISED GROUNDS OF APPE AL DATED 13.11.2017, AS AFORESAID, FILED BY THE ASSESSEE BE FORE THE LD. CIT(A), I FIND THAT IT HAS BEEN SIGNED BY THE ASSESSEE, BUT T HE LD. CIT(A) HAS WRONGLY REJECTED THE SAME ON A TECHNICAL GROUND AND DID NOT ADJUDICATE THE SAME. THEREFORE, IN THE INTEREST OF JUSTICE, I AM ACCEPTING THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES BY ISSUING THE DIRECTIONS TO THE LD. CIT(A) TO DECIDE THE AFORESAID ADDITIONAL GROUND AS WELL AS REVISED GROUNDS OF APPEAL RAISED BEFORE THE LD. CIT(A) VIDE LETTER DATED 13.11.2017, AFTER GIVING ADEQUATE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 23 RD DAY OF JULY, 2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED THE 23 RD DAY OF JULY, 2019 SRB COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A), NEW DELHI. 5. CIT(ITAT), NEW DELHI AR, ITAT