Geetanjali Infraprojects Pvt Ltd, New Delhi V. ITO WARD - 10(1), New Delhi

ITA 6919/DEL/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6210 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 19-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 147; 148; 143(2)

Judgement Text

1 ITA No. 6919/Del/2019 Geetanjali infra Projects Pvt. Ltd. Vs. ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC”: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA No. _6919/DEL/2019 [Assessment Year: 2010-11 Geetanjali Infra projects Pvt. Ltd. C/o M/s Sumer Garg & Co., CAs, E-501A, GDITL Northex Tower, A-09, Netaji Subhash Place, Pitampura, Delhi-110034 PAN- AADCG2531N Vs Income-tax Officer, Ward-10(1), New Delhi. APPELLANT RESPONDENT Appellant by Sh. S.C. Garg, CA Respondent by Sh. Om Prakash, Sr. DR Date of hearing 10.08.2022 Date of pronouncement 17.08.2022 O R D E R PER KUL BHARAT, JM: This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals)-35, New Delhi, dated 21.06.2019, pertaining to the assessment year 2010-11. The assessee has raised following grounds of appeal: “1. The Ld. AO erred in law and on facts in assuming the jurisdiction u/s 148 of the Income Tax Act to make reassessment in the facts and circumstances of the case and the Ld. CIT(Appeals) erred in law and on facts in confirming the action of the Ld. AO. The Ld. AO did not fulfill the requisite conditions to initiate proceedings u/s 147/148 and framing the assessment u/s 143(3)/147. 2 ITA No. 6919/Del/2019 Geetanjali infra Projects Pvt. Ltd. Vs. ITO 2. The Ld. AO erred in law and on facts in framing the assessment u/s 143 (3)/147 of the Income Tax Act in the facts & circumstances of the case and the Ld. CIT(Appeals) erred in law and on facts in confirming the action of the Ld. AO. Notice u/s 143 (2) of the I.T. Act was neither issued nor served on the assessee. Objections filed by the assessee to the initiation of proceedings u/s 147 were not disposed of by a speaking order. The Ld. CIT(A) erred in not examining assessment records for verification of facts. 3. The Ld. AO erred in making and the Ld. CIT(Appeals) in confirming in law and on facts the addition of Rs.783620/- in the facts and circumstances of the case. 4. The Ld. AO erred in making and the Ld. CIT(Appeals) in confirming in law and on facts the addition of Rs.783620/- considering imaginary income on the total receipts credited in the bank account without placing any substantive material on record in the facts and circumstances of the case. 5. The Ld. AO erred in law and on facts in making the addition of Rs.783620/- on the basis of a new source assumed by him while no addition has been made in respect of income allegedly believed to have escaped assessment as per reasons recorded u/s 147 and the Ld. CIT(Appeals) erred in confirming the action of Ld. AO in the facts and circumstances of the case. 6. The Ld. AO erred in law and on facts in considering material for making assessment without confronting the same to the assessee during assessment proceedings. As such, the principles of natural justice were not followed. Further, relevant evidence furnished by the assessee was ignored and material not germane to the case was relied upon to take adverse inference against the assessee. No verifications were made and Ld. AO jumped on the conclusion as per predetermined notions. The Ld. CIT(A) erred in law and on facts in confirming the action of Ld. AO without herself making any enquiries as required by law. 7. The appellant craves leave to add to, amend, alter or delete all or any of the grounds of appeal.” 2. Fact giving rise to the present appeal are that in this case the assessee filed its return of income on 22.3.2011 declaring income of Rs. 25,220/-. Subsequently 3 ITA No. 6919/Del/2019 Geetanjali infra Projects Pvt. Ltd. Vs. ITO case of the assessee was reopened and notice u/s 148 of the Income-tax Act, 1961(in short “the Act”) was issued on 31.3.2017. In response to the statutory notice, authorized representative of the assessee appeared and stated that return filed originally may be treated as return filed in response to the notice u/s 148 of the Act. Thereafter, the Assessing officer proceeded to frame assessment u/s 143(3) read with Section 147 of the Act and assessed the assessee’s income at Rs. 8,08,840/-, thereby making addition of Rs. 7,83,620/- being undisclosed commission income. Aggrieved against this the assessee preferred appeal before the learned CIT(Appeals). Who after considering the submissions dismissed the appeal. Now the assessee is in appeal before this Tribunal. 3. At the outset learned counsel for the assessee submitted that the Assessing officer did not comply with the mandatory provisions of law. He contended that the Assessing officer failed to issue notice u/s 143(2) of the Act. He submitted that the Assessing Officer has recorded wrong facts regarding issuance of notice u/s 143(2) of the Act. He further submitted that even if it is presumed that a notice was issued looking to the reasons recorded by the assessing authority, it can be clearly inferred that the facts relating to some other case have been recorded in the reasons recorded by the Assessing Officer. He drew my attention to the reasons recorded by the Assessing officer and also pointed out the bank account statement enclosed 4 ITA No. 6919/Del/2019 Geetanjali infra Projects Pvt. Ltd. Vs. ITO in the paper book to demonstrate that there was no such party, namely, Trishul Vinimay Pvt. Ltd. a/c. no. 909020040702216. Learned counsel pointed out that assessee had received a sum of Rs. 25,00,000/- but not from the aforementioned party i.e. Trishul Vinimay Pvt. Ltd. He submitted that in view of the incorrect recording of facts, it goes to demonstrate that there was no application of mind by the assessing authority. He has mechanically recorded the reasons, which is without verifying the facts. Therefore, in view of the judicial precedents in the cases of Oriental Bank of Commerce Vs. Addl. CIT WP(C) 2594/2013 dated 11.08.2014 (Del.); CIT Vs. Jet Airways (I) Ltd. (2011) 331 ITR 236 (Bom.); CIT Vs. Shri Ram Singh (2008) 306 ITR 343 (Raj.); Ranbaxy Laboratories Ltd. Vs. CIT (2011) 60 DTR 77 (Del.) dated 3.6.2011; Reliance Electricals and metals Pvt. Ltd. Vs. ITO – ITA no. 2069/Kol/2017 dated 13.4.2018; and Krishan Kumar Vs. ITO – ITA no. 3985/Del/2017 dated 15.12.2017, the impugned assessment order deserves to be quashed. 4. Learned DR opposed the submissions and supported the orders of the authorities below. 5. Heard the rival contentions, perused the material available on record and gone through the orders of authorities below. At the outset learned counsel for the assessee pointed out that the Assessing officer failed to issue notice u/s 143(2) of 5 ITA No. 6919/Del/2019 Geetanjali infra Projects Pvt. Ltd. Vs. ITO the Act, even the facts recorded in the reasons do not pertain to the assessee, hence there is complete non-application of mind on the part of the Assessing officer. Even despite specific direction, the Assessing Officer failed to produce copy of notice issued u/s 143(2) of the Act. Moreover, the Assessing Officer also failed to rebut the contention of the assessee that the assessee did not receive any money from Trishul Vinimay Pvt. Ltd., as mentioned in the reasons recorded. Therefore, I find merit in the contention of the counsel for the assessee that there is complete non-application of mind by assessing officer for reopening of assessment u/s 147 of the Act. I, therefore, respectfully following the binding precedents, hereby quash the assessment. 6. Appeal of the assessee is allowed. Order pronounced in open court on 17 th August, 2022. Sd/- (KUL BHARAT) JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI