Kishore Ajwani, New Delhi V. ITO, Ward- 2(1), Noida

ITA 6452/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9088 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Principle of natural justice; Competent authority; Set aside
• Section: 234B; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6452/DEL/2018 ASSESSMENT YEAR: 2008-09 KISHORE AJWANI C/O M/S RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-1, NEW DELHI. PAN NO. ANLPA8328H VS ITO WARD 2(1) NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SHRI SOMIL AGGARWAL, ADV. REVENUE BY SHRI S.L. ANURAGI, SR. DR ORDER THE ASSESSEE FILED THE PRESENT APPEAL AGAINST THE I MPUGNED ORDER DATED 29.06.2018 PASSED BY THE LD. CIT(A) ON THE FO LLOWING GROUNDS: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT ADMITTING THE APPEAL OF ASSESSEE AND THAT TOO WITHO UT ANY BASIS, MATERIAL AND EVIDENCES AVAILABLE ON RECORD A ND FURTHER ERRED IN WRONGLY ASSUMING THAT THE ASSESSEE HAD NOT FILED THE RETURN WHEREAS ASSESSEE IS REGULAR IN COME TAX ASSESSEE AND HAS FILED RETURNS FOR ALL YEARS INCLUD ING THE IMPUGNED YEAR. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) WRONGLY DECIDED THE APPEAL EX-PART E AND THAT TOO BY MAKING FALSE AND INCORRECT ALLEGATIONS AND FURTHER ERRED IN LAW AND ON FACTS IGNORING AND DISR EGARDING THE REQUEST FOR ADJOURNMENT PETITION DATED 26.06.20 18 WHICH WAS DULY SUBMITTED IN HIS OFFICE, THEREFORE, THE ACTION 2 ITA NO . 6452/DEL/2018 OF LD. CIT(A) IN PASSING THE IMPUGNED ORDER IS HIGH LY UNFAIR, UNJUSTIFIED AND IS PASSED WITHOUT FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN M AKING FOLLOWING APPARENT/GLARING ERRORS WHICH NEEDS TO BE RECTIFIED: LD. CIT(A) STATED IN THE ORDER THAT ASSESSEE HAS NO T FILED THE RETURN U/S 139(1), 139(4) NOR U/S 148 WHEREAS THE FACT IS THAT ASSESSEE HAS REGULARLY ASSESSED IN DELHI AND ISSUANCE OF NOTICE U/S 148 AN D COMPLETING THE REASSESSMENT ORDER BY THE NON- JURISDICTIONAL ASSESSING OFFICER WHICH IS ILLEGAL. IN PARA 3 OF THE IMPUGNED ORDER LD. CIT(A) STATED T HAT DISPUTE REGARDING CASH DEPOSITS OF RS. 12,00,000/- WHEREAS THIS IS NOT THE DISPUTE AT ALL AS IS EVIDEN T FROM THE ASSESSMENT ORDER. THAT NO COMPLIANCE OF NOTICES WAS ISSUED WHEREAS ONLY ONE NOTICE WAS ISSUED ON 12.06.2018 FIXING THE CASE FOR 26.06.2018. ON THIS DATE REQUEST FOR ADJOURNMENT WAS FILED WHICH WAS NOT CONSIDERED. IN TAKING THE ASSESSED INCOME AT RS. 36,63,300/- INSTEAD OF RS. 36,50,300/- AS IS EVIDENT FROM PLAIN READING OF ASSESSMENT ORDER. 4. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACT ION OF LD. CIT(A) IN PASSING THE IMPUGNED ORDER IS ILLEGAL , BAD IN LAW, HAS BEEN MADE ON THE BASIS OF PRESUMPTIONS, SURMISES AND CONJECTURES AND THE SAME IS NOT SUSTAI NABLE IN THE EYES OF LAW. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT DECIDING THE APPEAL OF THE ASSESSEE ON THE BASIS OF GROUNDS OF APPEAL RAISED IN APPEAL MEMO. 6. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT QUASHING THE IMPUGNED REASSESSMENT ORDER ON THE FOLLOWING GROUNDS: THAT THE ASSUMPTION OF JURISDICTION IN PASSING THE IMPUGNED REASSESSMENT ORDER U/S 144/147 IS BAD IN 3 ITA NO . 6452/DEL/2018 LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. THAT THE AO DID NOT HAVE THE JURISDICTION OVER THE ASSESSEE. THAT REASSESSMENT ORDER WAS WRONGLY PASSED EX- PARTE. THAT NO NOTICE U/S 148 WAS SERVED UPON THE ASSESSEE. THAT REASONS WERE WRONGLY RECORDED BY LD. AO AND THAT TOO WITHOUT INDEPENDENT AND JUDICIOUS MIND. THAT ASSUMPTION OF JURISDICTION IS ALSO BAD FOR THE REASON THAT THE APPROVAL ACCORDED BY THE COMPETENT AUTHORITY IS IN A MECHANICAL MANNER AND IS ALSO WITHOUT INDEPENDENT APPLICATION OF MIND. THAT COPY OF REASONS/APPROVAL WAS NOT PROVIDED TO ASSESSEE AND THUS MANDATE OF LAW WAS NOT FOLLOWED BEFORE FRAMING THE REASSESSMENT ORDER. THAT IMPUGNED REASSESSMENT ORDER WAS PASSED WITHOUT COMPLYING WITH OTHER MANDATORY CONDITIONS AS PER LAW. 7. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT DELETING THE ADDITION OF RS. 36,50,300/- MADE BY LD . AO ON ACCOUNT OF INVESTMENT IN PURCHASE OF PROPERTY, MORE SO WHEN PROPERTY WAS PURCHASED ON THE BASIS OF SECURED LOAN FROM ICICI BANK. 8. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT REVERSING THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234A, 234B AND 234C OF THE INCOME TAX ACT, 1961. 9. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJU DICE TO EACH OTHER. 4 ITA NO . 6452/DEL/2018 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE DRAW MY ATTENTION TOWARDS IMPUGNED ORDER DATED 29.06.2018 S TATED THAT LD. FIRST APPELLATE AUTHORITY HAS PASSED THE IMPUGNED O RDER AGAINST THE ASSESSEE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. HE REQUESTED THAT THE ISSUE IN DISPUTE M AY BE SET ASIDE TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE SAM E AFRESH AS PER LAW AFTER PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSES SEE. 4. ON THE CONTRARY, LD. DR RELIED UPON BY THE ORDER S PASSED BY THE REVENUE AUTHORITIES, BUT DID NOT STRONGLY OPPOSE TH E REQUEST OF LD. COUNSEL FOR THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES, PERUSED THE RELEV ANT RECORD AVAILABLE WITH ME INCLUDING THE ORDERS PASSED BY TH E REVENUE AUTHORITIES AND I AM OF THE VIEW THAT THE LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESS EE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THIS IS CO NTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, IN THE INTEREST OF JUSTICE, ISSUES IN DISPUTE ARE SET ASIDE TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH AS PER LAW AFTER PROVIDING SUFFICIENT OPPORT UNITY TO THE ASSESSEE. 5 ITA NO . 6452/DEL/2018 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 10/07/2019 *KAVITA ARORA 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 09.07.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 09.07.2019/ 10.07.2019 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 10.07.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 10.07.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 10.07.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 10.07.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 10.0 7.2019 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 6 ITA NO . 6452/DEL/2018