Mrs. Amarjeet Kaur Bawa, New Delhi V. ITO, New Delhi

ITA 683/DEL/2013

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1651 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-12-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 04-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 147; 148; 144

Judgement Text

ITA NO. 683/DEL/2013 AMARJEET KAUR BAWA 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-683/DEL/2013 (ASSESSMENT YEAR: 2003-04) AMARJEET KAUR BAWA 28/72, PUNJABI BAGH, NEW DELHI. VS. ITO WARD 25(3), D BLOCK, VIKAS BHAWAN, I.P. ESTATE, NEW DELHI. PAN NO. AFPPB7598Q APPELLANT RESPONDENT ASSESSEE BY NONE REVENUE BY SHRI KANV BALI, SR. DR DATE OF HEARING: 02.12.2020 DATE OF PRONOUNCEMENT : 10 .12.2020 ORDER PER K. NARASIMHA CHARY, JM AGGRIEVED BY THE ORDER DATED 9/2/2011 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXIV, NEW DELH I (LD. CIT(A)), FOR THE ASSESSMENT YEAR 2003-04, MRS AMARJEET KAUR BAWA (T HE ASSESSEE) FILED THIS APPEAL CHALLENGING THE FINDING OF THE LD. CIT(A) TH AT THE NOTICE UNDER SECTION 147/148 OF THE INCOME TAX ACT, 1961 (THE ACT) WAS DULY SERVED ON THE ASSESSEE AT HER ADDRESS 5/48,, WEST PUNJABI BAGH, NEW DELHI. 2. BRIEF FACTS OF THE CASE ARE THAT A NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 26/3/2010 AFTER RECORDING THE REASONS THEREOF ON THE BASIS OF THE INFORMATION RECEIVED FROM THE INVESTIG ATION WING IN THE FORM OF CD IN RESPECT OF ENTRY PROVIDERS IN THE FORM OF BOGUS GIF T/LOANS/SHARE APPLICATION MONEY/CAPITAL GAIN, ET CETERA BY CHEQUE/DDS IN LIEU OF THE CASH RECEIVED FROM ITA NO. 683/DEL/2013 AMARJEET KAUR BAWA 2 INTENDING BENEFICIARIES AND THE ASSESSEE WAS ALSO O NE OF THE BENEFICIARIES AS PER THE LIST OF BENEFICIARIES PROVIDED BY THE INVESTIGA TION WING. ACCORDING TO THE REVENUE THE ASSESSEE HAD DEPOSITED AN AMOUNT OF RUP EES 2.5 LAKHS TWICE IN HER BANK ACCOUNT ON 24/2/2003 AND 26/2/2003, RESPECTIVE LY WHICH WAS RECEIVED FROM SHRI KAMLESH MALIK ROOTED THROUGH HIS BANK ACCOUNT MAINTAINED WITH STATE BANK OF BIKANER AND JAIPUR. LEARNED ASSESSING OFFICER R ECORDED THAT THE ASSESSEE DID NOT RESPOND TO THE NOTICES ISSUED AND SECTION 148 O F THE ACT AND ALSO TO THE NOTICE UNDER SECTION 142 (1) OF THE ACT, LEADING TO THE AS SESSMENT OF HER INCOME UNDER SECTION 144 READ WITH SECTION 147 OF THE ACT BY ORD ER DATED 20/12/2010, BY MAKING AN ADDITION OF RS. 5.1 LAKHS TO THE INCOME O F THE ASSESSEE 3. AGGRIEVED BY SUCH AN ASSESSMENT, ASSESSEE PREFER RED APPEAL BEFORE THE LD. CIT(A) ON SEVERAL GROUNDS, INCLUDING THE CHALLENGE TO THE SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT AND ALSO FURTHER, STATING TH AT THE ASSESSMENT ORDER WAS PASSED ANTE-DATED. ASSESSEE ALSO CHALLENGED THE AD DITION ON MERITS. LD. CIT(A) BY WAY OF THE IMPUGNED ORDER CONFIRMED THE ASSESSMENT AND HELD THAT THE ALLEGATIONS OF THE ASSESSEE ARE FAR FROM TRUTH AND CIRCUMSTANCES OF THE CASE ARE NOT SUPPORTING THE PLEA OF THE ASSESSEE THAT THE NO TICE UNDER SECTION 148 OF THE ACT WAS NOT SERVED ON THE ASSESSEE. LD. CIT(A) ALS O JUSTIFIED THE ADDITION OF RS. 5 LAKHS AND THE COMMISSION AMOUNT OF RS. 10, 000/-. 4. AGGRIEVED BY THE IMPUGNED ORDER, ASSESSEE PREFER RED THIS APPEAL,BUT THE CHALLENGE IS CONFINED ONLY TO THE NON-SERVICE OF NO TICE UNDER SECTION 147/148 OF THE ACT. 5. WHEN THE MATTER IS CALLED, NEITHER THE ASSESSEE NOR ANY PERSON ON BEHALF OF THE ASSESSEE ENTERED APPEARANCE. IT COULD BE SEEN FROM THE RECORD THAT FOR NON- PROSECUTION OF THE APPEAL BY THE ASSESSEE, IT WAS D ISMISSED EX PARTE BY ORDER DATED 14/12/2016, BUT SUBSEQUENTLY, AT THE REQUEST OF THE ASSESSEE, SUCH AN EX PARTE ORDER WAS RECALLED ON 31/7/2019 IN MA NUMBER 198 / DEL/ 2017. SUBSEQUENTLY, SEVERAL NOTICES WERE ISSUED TO THE AD DRESS FURNISHED BY THE ITA NO. 683/DEL/2013 AMARJEET KAUR BAWA 3 ASSESSEE, BUT THERE IS NO REPRESENTATION FROM THE A SSESSEE. IF THE ASSESSEE IS STAYING IN SUCH ADDRESS, THERE WOULD BE NO REASON F OR NONSERVICE OF THE SAME. IF THE ASSESSEE IS NOT AVAILABLE IN SUCH ADDRESS, FOR ANY REASON, IT IS FOR THE ASSESSEE TO MAKE NECESSARY ARRANGEMENTS WITH THE POSTAL DEPA RTMENT EITHER TO DELIVER THE MAIL TO ANY AUTHORISED PERSON ON BEHALF OF THE ASSE SSEE, OR TO MAKE ARRANGEMENT WITH THE POSTAL DEPARTMENT TO REDIRECT THE MAIL TO ANY NEW OR TEMPORARY ADDRESS OF THE ASSESSEE OR TO RETAIN THE MAIL TILL THE ASSE SSEE COMES BACK AND CLAIMS THE SAME. WHEN THE NEW AND OLD ADDRESS OF THE ASSESSEE ARE IN THE SAME LOCALITY, IT CANNOT BE BELIEVED THAT THE ASSESSEE DOES NOT MAKE SUCH ARRANGEMENT WITH THE POSTAL DEPARTMENT. IF THE ASSESSEE DOES NOT MAKE AN Y SUCH ARRANGEMENT, THE REASON FOR THE NON-SERVICE OF NOTICE WOULD BE ATTRI BUTABLE TO THE ASSESSEE ALONE, AND IT IS NOT OPEN FOR THE ASSESSEE TO COMPLY AND A GAINST THE SAME. WE, THEREFORE, DO NOT FIND ANY JUSTIFICATION TO ADJOURN THE MATTER . WE, THEREFORE, PROCEED TO DECIDE THE APPEAL BASING ON THE MATERIAL AVAILABLE ON RECORD, AFTER HEARING THE LEARNED DR. 6. GRIEVANCE OF THE ASSESSEE IS THAT THERE IS NO DU E AND PROPER SERVICE OF NOTICE ISSUED AND SECTION 147/148 OF THE ACT. ON V ERIFICATION OF THE RECORD, LD. CIT(A) FOUND THAT NOTICE UNDER SECTION 148 OF THE A CT WAS DULY ISSUED TO THE ASSESSEE ON 26/3/2010 BY SPEED POST BEARING NUMBER ED 890 828520 O IN TO HER ADDRESS AT 5/48, WEST PUNJABI BAGH, NEW DELHI, WHIC H ADDRESS WAS PROVIDED BY THE. DIT (INV). THERE IS NO DISPUTE THAT THE ASSE SSEE STAYED AT SUCH ADDRESS FOR SOME POINT OF TIME. THOUGH THE ASSESSEE CONTENDED THAT THE SAID PREMISES WAS SOLD OUT AND THE ASSESSEE MOVED OUT OF THE SAME DUR ING THE YEAR 2007-08 AND THEREAFTER FILED THE RETURN OF INCOME FROM THE NEW ADDRESS, NAMELY, 28/72, WEST PUNJABI BAGH, NEW DELHI, NO EVIDENCE IN SUPPORT THE REOF IS FORTHCOMING. ACCORDING TO THE LD. CIT(A), THERE IS NO SPECIFIC I NFORMATION TO THE DEPARTMENT AS TO THE CHANGE OF ADDRESS. ITA NO. 683/DEL/2013 AMARJEET KAUR BAWA 4 7. IT COULD FURTHER BE SEEN FROM THE RECORD THAT TH ERE IS NO DISPUTE THAT WHEN THE ASSESSMENT ORDER WAS PASSED ON 20/12/2010, AND DISPATCHED TO THE ADDRESS OF THE ASSESSEE AT 5/48, WEST PUNJABI BAGH ON 27/12 /2010, THE SAME WAS RETURNED WITH THE ENDORSEMENT LEFT MADE BY THE POSTAL SERV ANT ON 28/12/2010. BASING ON THIS LEARNED DR SUBMITTED THAT WHEN THE NOTICE C OULD NOT BE SERVED, AS ON 28/12/2010, THE POSTAL ENVELOPE WAS RETURNED BY THE POSTAL DEPARTMENT WITH SUITABLE ENDORSEMENT AND THIS IS CONSPICUOUSLY ABSE NT WHEN THE NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 26/3/2010 WHIC H INDICATES THAT AS ON 26/3/2010, THE ASSESSEE WAS VERY MUCH PRESENT IN TH E SAID ADDRESS OR RECEIVED SUCH MAIL ADDRESSED TO THE OLD ADDRESS, AND THAT IS REASON WHY THE POSTAL ENVELOPE WAS NOT RETURNED BY THE POSTAL DEPARTMENT. LEARNED DR FURTHER SUBMITTED THAT THERE IS NO EVIDENCE AS TO WHEN EXAC TLY THE ASSESSEE MOVED OUT OF THE PROPERTY AND MERELY BECAUSE THE RETURN WAS FILE D FROM THE NEW ADDRESS OF 28/72, WEST VIRGINIA BE BAGH, IT CANNOT BE SAID THA T THE ASSESSEE WAS NOT AVAILABLE AT 5/48, WEST PUNJABI BAGH OR BECAUSE THE ASSESSEE WAS LIVING IN THE SAME LOCALITY THE POSTAL SERVANT MUST HAVE DELIVERED THE MAIL TO THE OLD ADDRESS AT THE NEW ADDRESS, AND THE FACT THAT THE POSTAL ENVELOPE WAS NOT RETURNED INDICATES THAT THE ASSESSEE ACCEPTED THE SAME. WHEN THE NOTICE COULD NOT BE SERVED IN THE OLD ADDRESS, THE POSTAL AND ENVELOPE WAS RETURNED. 8. SINCE THE PRESUMPTION AS TO THE SERVICE OF NOTIC E WHEN THE NOTICE WAS ISSUED TO PROPER ADDRESS BY REGISTERED MAIL WITH PO STAGE PREPAID IS IN FAVOUR OF THE DEPARTMENT, IT IS FOR THE ASSESSEE TO REBUT THE SAME WITH COGENT EVIDENCE. IT IS ALWAYS OPEN FOR THE ASSESSEE TO VERIFY WITH THE POS TAL AUTHORITIES WITH REFERENCE TO THE SPEED POST NUMBER AND SUBMIT THE EVIDENCE OF NO NSERVICE TO HIM, WHICH THE ASSESSEE DID NOT DO. IN THE CIRCUMSTANCES, MERE ST ATEMENT OF THE ASSESSEE THAT THERE IS NO SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT CANNOT REBUT THE PRESUMPTION. WE, THEREFORE, DO NOT SEE ANY REASON TO REJECT THE REASONING AND FINDING OF THE LD. CIT(A). CONSEQUENTLY, WE DISMIS S THE GROUNDS OF APPEAL. ITA NO. 683/DEL/2013 AMARJEET KAUR BAWA 5 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/12/2020. SD/- SD/- (ANIL CHATURVEDI) (K. NARSIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10.12.2020 *KAVITA ARORA, SR. PS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI