Ganesh Pandey, Kanpur V. Income Tax Officer-1(5), Kanpur

ITA 684/LKW/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1496 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALKA SINIGH
• Keywords: Reopening of assessment; Valuation report; Assessment record
• Section: 148; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT ITA NO. 684/LKW/2017 ASSESSMENT YEAR: 2010 - 11 SHRI GANESH PANDEY 68/150, LOKMAN MOHAL KANPUR V. INCOME TAX OFFICER 1(5) KANPUR T AN /PAN : ANHPP 3995K (APP ELL ANT) (RESPONDENT) ITA NO. 685/LKW/2017 ASSESSMENT YEAR: 2010 - 11 SHRI KAILASH NATH PANDEY 68/150, LOKMAN MOHAL KANPUR V. INCOME TAX OFFICER 1( 2 ) KANPUR T AN /PAN : ACZPP6466A (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI RAKESH GARG , ADVOCATE RESPONDENT BY: SMT. ALKA SINIGH, D.R. DATE OF HEARING: 14 0 3 201 9 DATE OF PRONOUNCEMENT: 15 0 3 201 9 O R D E R THESE ARE TWO DIFFERENT ASSESSEES APPEALS FOR ASSESSMENT YEAR 2010 - 11 INVOLVING COMMON ISSUES. THE ISSUE BEING COMMON, BOTH THE SE APPEALS ARE BEING DISPOSED OF BY THIS COMPOSITE ORDER. THE FACTS, FOR CONVENIENCE, ARE BEING TAKEN FROM ITA NO.684/LKW/2017. THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED: - 1. THE LEARNED AO HAS PASSED THE ORDER AGAINST THE FACTS AND LAW. 2. THE LE ARNED AO HAS NOT PROVIDED THE COPY OF THE REASONS RECORDED FOR TAKING UP THE CASE FOR ASSESSMENT UNDER SECTION 147. ITA NO.684 & 685/LKW/ 2017 PAGE 2 OF 5 3. THE VALUATION REPORT OF THE PROPERTY HAS BEEN DONE ARBITRARILY WITHOUT CONSIDERING THE RELEVANT MATERIAL FACTS. 4. THE LEARNED AO DURING ASSESSMENT PROCEEDING HAS NOT TAKEN INTO ACCOUNT THE PURCHASE OF NEW RESIDENTIAL PROPERTY BY THE ASSESSEE FOR PURPOSE OF CLAIMING EXEMPTION UNDER SECTION 54 OF THE I . T ACT. 5. THE LEARNED AO HAD NOT PROVIDED THE REASONABLE OPPORTUNITY TO THE ASSESSEE TO EX AMINE THE STATEMENT RECORDED ON THE BASIC OF WHICH THE LEARNED AO HAD REJECTED THE CLAIM OF THE ASSESSEE FOR CLAIMING EXEMPTION UNDER SECTION 54. 6. THE WITHOUT PREJUDICE TO THE AFORESAID THE ORDER OF THE AO HAS BEEN WRONGLY PASSED AGAINST THE FACTS AND NA TURAL JUSTICE. 2 . THE GROUNDS NOS. 1 & 6 ARE GENERAL IN NATURE. 3 . APROPOS GROUND NO.2, THE ASSESSEE TOOK FOLLOWING GROUND NO.2 BEFORE THE LD. CIT(A): 2. THE LD. AO HAS NOT PROVIDED THE COPY OF THE REASONS RECORDED FOR TAKING UP THE CASE FOR ASSESSMENT UNDER SECTION 147. 4 . THE LD. CIT(A) HELD AS UNDER: A.O HAS NOT PROVIDED THE COPY OF THE REASONS RECORDED FOR TAKING UP THE CASE FOR ASSESSMENT UNDER SECTION 147. IT IS SEEN THAT THIS TECHNICAL OBJECTION HAS BEEN TAKEN FOR THE SAKE OF TAKING OBJECTION. I HAVE GO NE THROUGH THE ASSESSMENT RECORDS NOWHERE HAS THE ASSESSE S ASKED FOR REASONS FOR REOPENING DURING ENTIRE PROCEEDINGS. THE AO HIS PART CONFRONTED THE ASSESSE E ON THE CAUSE OF REOPENING OF ASSESSMENT WHICH WAS REASSESSMENT AS PER PROVISIONS OF SETION5 0C . THE R E BEING NO MERIT IN TH E GROUND, THE SAME IS DISMISSED. 5 . THE LD. A.R. OF THE ASSESSEE HAS CONTENDED THAT THE REASONS RECORDED BY THE A.O FOR BELIEF OF ESCAPEMENT OF INCOME HAVE BEEN PROVIDED TO THE ASSESSEE DURING THE PENDENCY OF THE PRESENT APPEAL ITA NO.684 & 685/LKW/ 2017 PAGE 3 OF 5 BEFORE THIS BENCH. AS PER FIRST PARA OF THE ASSESSMENT ORDER, THE REASONS RECORDED BY THE A.O HAVE ONLY NOW BEEN PROVIDED TO THE ASSESSEE DURING THE PENDENCY OF THE APPEAL BEFORE US. 6 . IN GKN DRIVESHAFTS PVT. LTD. VS. ITO AND OTHERS , 259 ITR 19 (SC) (RELIED ON BY THE LD. A.R. OF THE ASSESSEE), ON RECEIPT OF THE REASONS RECORDED BY THE ASSESSING OFFICER FOR FORMING A BELIEF OF ESCAPEMENT OF INCOME, THE NOTICEE IS ENTITLED TO FILE OBJECTIONS TO THE ISSUANCE OF THE NOTICE FOR REASSESSMENT, WHICH OBJECTIONS THE ASSE SSING OFFICER IS BOUND TO DEPOSE OF BY PASSING A SPEAKING ORDER BEFORE PROCEEDING WITH THE ASSESSMENT. 7 . IN GENERAL MOTORS INDIA (P) LTD. VS. DCIT , 354 ITR 244 (GUJ.), IT HAS BEEN HELD THAT WHERE NO ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER DECIDING T HE OBJECTIONS FILED BY THE ASSESSEE AGAINST NOTICE ISSUED UNDER SECTION 148 OF THE ACT, OR WHERE SUCH OBJECTIONS HAVE BEEN DECIDED ALONG WITH THE ASSESSMENT ORDER, THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT DESERVES TO BE QUASHED. THEIR LORDSHIPS FURT HER OBSERVED AS FOLLOWS: - THE ASSESSING OFFICER IS MANDATED TO DECIDE THE OBJECTION TO THE NOTICE UNDER SECTION 148 AND SUPPLY OR COMMUNICATE IT TO THE ASSESSEE. THE ASSESSEE GETS AN OPPORTUNITY TO CHALLENGE THE ORDER IN A WRIT PETITION. THEREAFTER, THE ASSESSING OFFICER MAY PASS THE REASSESSMENT ORDER. WE HOLD THAT IT WAS NOT OPEN TO THE ASSESSING OFFICER TO DECIDE THE OBJECTION TO NOTICE UNDER SECTION 148 BY A COMPOSITE ASSESSMENT ORDER. THE ASSESSING OFFICER WAS REQUIRED TO FIRST DECIDE THE OBJECTIO N OF THE ASSESSEE FILED UNDER SECTION 148 AND SERVE A COPY OF THE ORDER ON ASSESSEE. AND AFTER GIVING SOME REASONABLE TIME TO THE ASSESSEE FOR CHALLENGING HIS ORDER, IT WAS OPEN TO HIM TO PASS AN ASSESSMENT ORDER. THIS WAS NOT DONE BY THE ASSESSING OFFIC ER, THEREFORE, THE ORDER ON THE OBJECTION TO THE NOTICE UNDER SECTION 148 AND THE ASSESSMENT ITA NO.684 & 685/LKW/ 2017 PAGE 4 OF 5 ORDER PASSED UNDER THE ACT DESERVES TO BE QUASHED.: ( STRESS SUPPLIED). 8 . NO DECISION CONTRARY TO EITHER GKN DRIVESHAFTS (SUPRA), OR GENERAL MOTORS (SUPRA) HAS BE EN CITED BEFORE THIS BENCH. 9 . IN THE PRESENT CASE, THE LD. CIT(A) HAS OBSERVED, AS QUOTED HEREINABOVE, THAT THE ASSESSEE HAD NOT ASKED FOR THE REASONS FOR REOPENING. THIS, EVIDENTLY, IS IN DIRECT OPPOSITION TO GKN DRIVESHAFTS (SUPRA) AND GENERAL MOTORS (SUPRA). HOWEVER, THE REASONS RECORDED BY THE A.O HAVE BEEN PROVIDED TO THE ASSESSEE DURING THE PENDENCY OF THE PRESENT APPEAL, ABOUT WHICH FACT, THE PARTIES ARE AD IDEM. 10 . IN VIEW OF THIS SITUATION, IN THE INTEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO REM IT THIS MATTER TO THE FILE OF THE A.O, TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, PARTICULARLY IN THE LIGHT OF THE MANDATE OF THE HON'BLE SUPREME COURT ORDER IN GKN DRIVESHAFTS (SUPRA) AND GENERAL MOTORS (SUPRA). 11 . THE A.O SHALL PROVIDE DUE AND ADEQU ATE OPPORTUNITY TO THE ASSESSEE TO RAISE OBJECTIONS, IF ANY, INTENDED TO BE FILED, AGAINST THE REASONS RECORDED BY THE A.O FOR THE BELIEF OF ESCAPEMENT OF INCOME. SUCH OBJECTIONS, IF RAISED BY THE ASSESSEE, SHALL BE DECIDED BY PASSING A SEPARATE ORDER. T HEREAFTER, AFTER GIVING REASONABLE TIME TO THE ASSESSEE FOR CHALLENGING THE SAID ORDER, IT WILL REMAIN OPEN TO THE A.O TO PASS AN ASSESSMENT ORDER. THE ASSESSEE, NO DOUBT, SHALL CO - OPERATE IN THE FRESH PROCEEDINGS BEFORE THE ASSESSING OFFICER. ALL PLEAS AVAILABLE UNDER THE LAW SHALL REMAIN SO AVAILABLE TO THE ASSESSEE. ORDERED ACCORDINGLY. 12 . AS NOTED AT THE BEGINNING OF THIS ORDER, THE FACTS, MUTATIS MUTANDIS, ARE THE SAME IN ITA NO.685/LKW/2017. THEREFORE, OUR ABOVE OBSERVATIONS WITH REGARD TO ITA NO.684 /LKW/2017 SHALL APPLY EQUALLY TO ITA NO.685/LKW/2017 AND THE MATTER IN ITA NO.685/LKW/2017 IS ALSO ITA NO.684 & 685/LKW/ 2017 PAGE 5 OF 5 REMITTED TO THE FILE OF THE A.O WITH SIMILAR DIRECTIONS AS MADE FOR ITA NO.684/LKW/2017. 13 . IN THE RESULT, FOR STATISTICAL PURPOSE S , BOTH THE APPEALS ARE ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 15 / 0 3 /201 9 . SD/ - [ A. D. JAIN ] VICE PRESIDENT DATED: 15/ 03/ 201 9 JJ: 1503 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR