Ms. Manpreet Kaur, Budhlada V. The Income-tax Officer, MANSA

ITA 680/ASR/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2477 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 10-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR KANCHAN GARG
• Assessee Lawyers: J K GUPTA
• Keywords: Gift
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.680(ASR)/2014 ASSESSMENT YEAR:2005-06 PAN: MANPREET KAUR VS. INCOME TAX OFFICER, D/O SH. GURDEV SINGH, WARD 1(4), WARD NO.8, NEAR ITI, BUDHLADA. MANSA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. J.K.GUPTA, ADVOCATE RESPONDENT BY:DR. KANCHAN GARG, DR DATE OF HEARING: 18/11/2015 DATE OF PRONOUNCEMENT: 12/01/2016 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2005-06, TAKING THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A), ERRED IN PASSING A NON SPEA KING ORDER THROWING ALL THE CANONS OF JUSTICE TO WIND. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A), ERRED IN UPHOLDING THE RETU RN FILED BY AN UNAUTHORIZED PERSON WITHOUT PAN IS VALID THAT TO O IN RESPONSE TO NOTICE U/S 148 OF THE INCOME TAX ACT, 1 961 WITHOUT MENTIONING THE DATE OF SERVICE OF NOTICE AN D ON WHOM SERVICE WAS EFFECTED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A), ERRED IN UPHOLDING THE SERV ICE OF NOTICE ISSUED U/S 148 ON 22.03.2012 BY THE AO WHO WAS NOT HAVING THE JURISDICTION OVER THE ASSESSEE WHEN THE ASSESSEE IS IN AUSTRALIA SINCE 2008. THE ASSESSEE HAS NOT GI VEN ANY POWER OF ATTORNEY TO ANY PERSON TO DEAL WITH HER IN COME TAX CASES. MY FATHER HAS NOT ATTACHED THE POWER OF ATTO RNEY WITH ITA NO.680(ASR)/2014 ASSESSMENT YEAR: 2005-06 2 THE RETURN OF INCOME AS PER THE PROVISIONS OF SECTI ON 140(A) OF THE ACT. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A), ERRED IN UPHOLDING THE SERV ICE OF NOTICE ISSUED U/S 142(1) AND 143(2) OF THE ACT WHEN THE AS SESSEE IS IN AUSTRALIA AND UPHOLDING THE RE-ASSESSMENT. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A), ERRED IN GIVING A FINDING T HAT FIXED DEPOSITS SHOULD BE TAKEN AS INVESTMENT FOR WHICH NO BENEFIT CAN BE ALLOWED WITHOUT POINTING OUT WHEN THE FDR W AS PURCHASED. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A), ERRED IN GIVING A FINDING F OR PEAK INVESTMENT THAT NO CHART HAS BEEN GIVEN BY THE ASSE SSEE AS THE SAME WAS GIVEN IN POINT NUMBER 8 OF THE WRITTEN ARGUMENTS. 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A), ERRED IN GIVING THE BENEFIT S OF THE CREDIT OF GIFTS RECEIVED FROM THE RELATIVES AND FATHER OF THE ASSESSEE. 2. GROUND NO.1 IS GENERAL. 3. APROPOS GROUND NO.2, THE LD. COUNSEL FOR THE ASS ESSEE HAS SUBMITTED THAT SINCE NO NOTICE U/S 148 OF THE ACT WAS EVER SERVED ON THE ASSESSEE, ANY SUCH NOTICE IN ALL PROCEEDINGS SUBSEQ UENT THERETO, INCLUDING THE ASSESSMENT ORDER AND THE CIT(A)S ORD ER ARE BAD IN LAW. 4. ON THE OTHER HAND, THE LD. DR HAS SOUGHT TO PLAC E RELIANCE ON THE IMPUGNED ORDER IN THIS REGARD. 5. ON HEARING THE PARTIES ON THIS ISSUE, IT IS SEEN THAT BY WAY OF GROUND NO.5 BEFORE THE LD. CIT(A), THE ASSESSEE CON TENDED AS FOLLOWS: THAT LEARNED AO HAS NOT SERVED THE NOTICE U/S 148 O F THE INCOME TAX ACT, 1961 UPON ME AS I AM IN AUSTRALIA SINCE 20 08. I HAVE NOT GIVEN POWER OF ATTORNEY TO ANYONE IN INDIA TO DEAL MY INCOME TAX CASES. SO, THE RE-ASSESSMENT IS LIABLE TO BE QUASHE D. ITA NO.680(ASR)/2014 ASSESSMENT YEAR: 2005-06 3 6. THUS, THE ASSESSEE SPECIFICALLY STATED BEFORE TH E LD. CIT(A), THAT NO NOTICE U/S 148 OF THE ACT HAD BEEN SERVED ON THE AS SESSEE. HOWEVER, THE LD. CIT(A) DEALT WITH THE ISSUE BY OBSERVING AS FOL LOWS: SINCE THE RETURN OF INCOME HAS BEEN FILED BY SH. GU RDEV SINGH ON BEHALF OF THE APPELLANT IN RESPONSE TO NOTICE U/S 1 48 AND HE ATTENDED THE ASSESSMENT PROCEEDINGS ON BEHALF OF TH E APPELLANT, THE PROCEEDINGS INITIATED U/S 147/148 AND SERVICE OF NO TICES AND ALSO THE ASSESSMENT ORDER IS HELD AS VALID. HENCE, GROUN DS OF APPEAL NO. 2 TO 6 ARE DISMISSED. 7. FROM THE ABOVE, IT IS EVIDENT THAT THE LD. CIT(A ) HAS ACKNOWLEDGED, THOUGH INDIRECTLY THE FACT THAT THE NOTICE U/S 148 WAS NOT SERVED ON THE ASSESSEE. IN THIS REGARD, EVEN THE AO IN PARA-1 OF THE ASSESSMENT ORDER, OBSERVED THAT NOTICE U/S 148 OF THE I.T. ACT, 1961 WAS ISSUED BY THE ACIT, CIRCLE-1, BATHINDA ON 22.03.2012 HOWEVER, THE AO DID NOT TALK OF THE SERVICE OF THE SAID NOTICE ON THE ASSES SEE. 8. BOTH THE TAXING AUTHORITIES HAD MERELY GONE BY T HE FACT THAT THE RETURN OF INCOME WAS FILED IN RESPONSE TO THE NOTIC E U/S 148 OF THE I.T.ACT, 1961 BY THE ASSESSEES FATHER AND THE ASSE SSEES FATHER ATTENDED THE ASSESSMENT PROCEEDINGS ON BEHALF OF THE ASSESSE E. 9. NOW, IT IS WELL SETTLED THAT IT IS THE SERVICE OF NOTICE U/S 148 OF THE ACT THAT CONFERS JURISDICTION OVER THE AO TO RE-AS SESS THE COMPLETED ASSESSMENT. THUS, SERVICE OF NOTICE U/S 148 OF THE ACT IS A SINE QUA NON FOR THE AO TO MAKE THE REASSESSMENT. IN THE ABSENCE OF SUCH ASSESSMENT, THE NOTICE IS INVALID AND ALL PURSUANT ACTION THERETO, INCLUDING ASSESSMENT ORDER/FIRST APPELLATE ORDER, I S ALSO INVALID. NO AMOUNT OF ACQUIESCENCE CAN CONFER JURISDICTION, AS IS TRITE. THUS, NEITHER THE FILING OF THE ASSESSEES RETURN OF INCOME BY HE R FATHER IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, NOR HIS ATTENDANCE IN THE ASSESSMENT ITA NO.680(ASR)/2014 ASSESSMENT YEAR: 2005-06 4 PROCEEDINGS ON BEHALF OF THE ASSESSEE CAN VALIDATE THE NOTICE. THE SAME IS ACCORDINGLY CANCELLED. AS SUCH, ALL PROCEEDINGS PURSUANT THERETO, INCLUDING THE ASSESSMENT ORDER, AS WELL AS THE IMPU GNED ORDER, ARE ALSO CANCELLED. 10. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/01/2016 SD/- (A.D. JAIN) JUDICIAL MEMBER DATED: 12/01/2016 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE:MANPREET KAUR, BUDHLADA. 2. THE ITO WRD 1(4), MANSA 3. THE CIT(A), BATHINDA 4. THE CIT, BATHINDA. 5. THE SR. DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.