ITO, Ward-1(1), `Ghaziabad V. Anil Kumar, Ghaziabad

ITA 6827/DEL/2019

AI Insights

The case involves an appeal by the Income Tax Department against an order of the CIT(A), Noida, which had allowed the appeal of the assessee, Sh. Anil Kumar, by deleting additions made by the Assessing Officer regarding unexplained investments. The primary contention by the Department was the lack of jurisdiction of CIT(A), Noida, as the appeal should have been decided by the jurisdictional CIT(A), Ghaziabad. The Tribunal agreed with the Department's contention regarding jurisdiction and remanded the case for a fresh decision by the correct authority.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 108668 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-05-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 15-08-2019
• Other Referred Cases: Udit Kalra vs ITO, Ward-50(1), Sanjay Bimalchand Jain vs. Pr.CIT-1, Nagpur, Smt. Tharakumari vs. ITO, Sh. Sanat Kumar vs. ACIT, Circle-36(1), New Delhi
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Penny stocks; Set aside
• Section: 69; 10; 143(3)

Judgement Text

1 ITA No. 6827/Del/2019 ITO Vs. Sh. Anil Kumar, Ghaziabad IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH: ‘A’ NEW DELHI ] BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER I.T.A. No. 6827/DEL/2019 (A. Y 2015-16) ITO Room No. 204, CGO-1, Hapur Chungi, Ghaziabad, Uttar Pradesh ( APPELLANT ) Vs. Anil Kumar RDC, 131, Raj Nagar, Ghaziabad Uttar Pradesh PAN:AAACJ8030A ( RESPONDENT ) ORDER PER YOGESH KUMAR U.S., JM This appeal is filed by the Revenue against the order dated 31/12/2018 passed by the Office of the Commissioner of Income Tax Appeals-1 (hereinafter referred to ‘CIT(A)’)- Noida, for assessment year 2015-16. Assessee by : Shri Pushkar Pandey, Adv Department by: Shri Kanv Bali, Sr. DR Date of Hearing 30.05.2023 Date of Pronouncement 31.05.2023 2 ITA No. 6827/Del/2019 ITO Vs. Sh. Anil Kumar, Ghaziabad 2. The assessee has raised the following grounds of appeal:- “ 1. Ld. CIT (A)-l, Noida has erred in law and on facts by deciding the appeal of the assessee without having jurisdiction over the case as the assessee in this case filed the uppe.a.1 with the CIT (A)-l, Noida whereas the same should have been filed with and decided by the jurisdictional CIT (A), Ghaziabad. Moreover, although the date of the appellate order is 31.12.2018, the same has been received in this office on 18.06.2019, after the compulsory retirement u/s FR 56(j) of Sh. S.K. Srivastava, the then CIT (A)-l, Noida and has also been uploaded on the ITBA after an inordinate delay of time. Therefore, order of Ld. CIT (A)-I, Noida is illegal, bad in law and in violation of CBDT’s notification no. 66/2014 dated 13.11.2014 r.w. order no. G- 03/2014-15 dated 15.11.2014 of Ld. Pr. CCIT (CCA), Kanpur, assigning jurisdiction to C1T(A), Ghaziabad and other ClT(A) of UP (West & Uttrakhand). 2. Without prejudice to the above, the Ld. CIT (A)-l, Noida has erred in law and fact in deleting the addition of Rs. 3,65,50,629/- on account of unexplained investment u/s 69 of the 1. T. Act, without considering the facts brought on record. Reliance is placed on judgment of Hon’ble Delhi High Court in the case of Udit Kalra vs ITO, Ward-50(1) in ITA No. 220/2019 & CM No. 10774/2019 dated 08.03.2019 and of Hon’ble Bombay High Court (Nagpur Bench) in the case of Sanjay Bimalchand Jain vs. Pr.CIT-1, Nagpur (Income Tax Appeal No. 18 of 2017). 3. Without prejudice to ground, no. 1 above, the Ld. CIT (A)-l, Noida has overlooked the fact that the name of M/s. CCL International Ltd. figured in the list of penny scrips as per reports of the Investigation Wing of the Department at Kolkata and that Hon’ble Madras High Court have upheld the disallowance of exemption u/s 10 (38) in the case of Smt. Tharakumari vs. ITO (tax case appeal no. 128 of 2019 and C.M.P. No. 3 ITA No. 6827/Del/2019 ITO Vs. Sh. Anil Kumar, Ghaziabad 3353 of 2019) where the shares of a company, in respect of which long term capital gain was claimed by the assessee as exempt, appeared in the Data Base of the Income Tax Department as penny stocks in tax evasion racket. Hon’ble IT AT Delhi have in their recent judgment in the case of Sh. Sanat Kumar vs. ACIT, Circle-36(1), New Delhi (ITA no. 1881/Del/2018), Hon’ble ITAT ‘E-Bench’, Delhi also stated that “ ...................no doubt assessee has meticulously completed the paper work by routing his entire investment through banking channel but the results thereof are altogether beyond human probabilities. ” 4. Appellant craves leave to modify/amend or add any one or more grounds of appeal.” 3. Brief facts of the case are that, the assessment order came to be passed on 29/12/2017 u/s 143(3) of the Act by computing the income of the assessee at Rs. 3,71,15,329/- as against declared income of Rs. 5,64,700/-. Aggrieved by the assessment order dated 29/12/2017, the assessee preferred an appeal before the CIT(A)- Noida, though the Jurisdictional CIT(A) was Ghaziabad. The said appeal filed by the assessee has been taken up by the Commissioner of Income Tax (Appeals-Noida) and vide order dated 31/12/2018 allowed the Appeal filed by the assessee by deleting the additions made by the A.O. 4. Aggrieved by the order impugned dated 31/12/2018, the Department preferred the present Appeal on the grounds mentioned above. 5. The Ld. DR submitted that the CIT(A) -1 Noida erred in deciding the Appeal of the assessee without having jurisdiction as the assessee had filed 4 ITA No. 6827/Del/2019 ITO Vs. Sh. Anil Kumar, Ghaziabad the Appeal with CIT(A)- Noida whereas the Appeal should have been filed before jurisdictional CIT(A)- Ghaziabad. Further brought to our notice that the Officer who passed the order had no jurisdiction to adjudicate the Appeal filed by the assessee, therefore submitted that the Appeal requires to be adjudicated by the proper authority who is having the jurisdiction. Thus, sought for remanding the matter to the file of CIT (A)-Ghaziabad. 6. Per contra, the Ld. AR was filed a written submission contended that the Appeal filed by the Department is devoid of merit which requires to be dismissed. 7. We have heard both the parties and perused the material available on record. It is not in dispute that the assessment order has been passed by the A.O. Ward-1 (1), Ghaziabad, UP any order passed by the Assessing Officer Ward-1 (1), Ghaziabad, UP is subject to Appeal before the Jurisdictional CIT(A) i.e. CIT(A)- Ghaziabad. Since the present appeal has been decided and allowed by the CIT(A)- Noida, which is beyond the jurisdiction of the Officer who has passed the order, without expressing any view on the merit of the case, we are of the opinion that the order impugned dated 31/12/2018 passed by the Commissioner of Income Tax-Appeals, Noida is liable to be set aside and the matter is deserves to be remanded to the file of CIT(A), Ghaziazbad to decide the Appeal filed by the assessee afresh in accordance with law after providing opportunity of being heard to the assessee. Ordered Accordingly. 5 ITA No. 6827/Del/2019 ITO Vs. Sh. Anil Kumar, Ghaziabad 8. In the result, the Appeal filed by the Revenue is allowed for statistical purpose. Order pronounced in the open court on : 31/05/2023. Sd/- Sd/- ( ANIL CHATURVEDI ) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 31/05/2023 *R.N, Sr. PS* Copy forwarded to :- 1. Appellant 2. Respondent 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI