ACIT, New Delhi V. M/s. Vinod Kumar Grover, HUF, New Delhi

ITA 692/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4224 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 15-06-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 15-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH GUPTA
• Assessee Lawyers: S SAMPATH
• Section: 271(1)(c); 69B; 143(2)

Judgement Text

ITA NO. 692/DEL/2010 A.Y. 2006-07 1 IN THE INCOMETAX APPELATE TRIBUNAL DELHI BENCH H: NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NOS. 692/DEL/2010 A.Y. : 2006-07 ASSTT. COMMISSIONER OF INCOME TAX, VS. M/S VINOD KUMAR GROVER(HUF), CIRCLE 32(1), ROOM NO. 376A, 2-A, NAYYA MARG, CR BUILDING, IP ESTATE, NEW DELHI CHANKYA PURI, N EW DELHI (PAN : AAAHV 8561M) ( APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. SAMPATH, CA DEPARTMENT BY : SHRI MANISH GUPTA, DR O R D E R PER SHAMIM YAHYA, AM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 27.11.20 09 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2. THE FIRST ISSUE RAISED IS THAT THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE ASSESSMENT PROCEEDINGS IN ITIATED FOR THE ASSESSMENT YEAR 2006-07 BY THE ASSESSING OFFICER WAS AB INITI O VOID. 3. THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 31.3.2007. THE CASE WAS PROCESSED U/S 143(1). SUBSEQUENTLY THE ASSESSIN G OFFICER BASED ON AIR INFORMATION THAT THE APPELLANT HAD INVESTED RS. 59, 70,041/- IN MUTUAL FUNDS AND SHARES OF VARIOUS COMPANIES, ISSUED NOTICE U/S. 143 (2) ON 16/10/07 WHICH WAS ITA NO. 692/DEL/2010 A.Y. 2006-07 2 SENT THROUGH SPEED POST TO THE ADDRESS OF THE APPEL LANT AS GIVEN IN AIR INFORMATION, AT A-1/134, SAFDERJUNG ENCLAVE, NEW DEL HI. THE SAID NOTICE WAS RETURNED WITH THE COMMENTS LEFT WITHOUT ADDRESS. THIS NOTICE WAS ISSUED WITHIN 12 MONTHS OF FILING OF TAX RETURN BY THE APP ELLANT HUF. SUBSEQUENTLY, NOTICES WERE SERVED ON DIFFERENT DATES AT VARIOUS O THER ADDRESSES. ON 14/11/2008, THE NOTICE WAS SENT BY SPEED POST TO V ARIOUS PREMISE INCLUDING AT A- 104, SOM VIHAR APARTMENTS, RK PURAM, NEW DELHI TH ROUGH NOTICE SERVER IN THE PRESENCE OF ITI. IT WAS STATED THAT THESE NOTIC ES WERE AFFIXED ON 5/12/2008. FAILING TO GET COMPLIANCE FROM THE APPELLANT, THE A SSESSING OFFICER TREATED SUCH INVESTMENT AS UNEXPLAINED U/S. 69B OF THE ACT. PEN ALTY U/S. 271(1)(C) WAS ALSO INITIATED. 4. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) AN AFFIDAVIT WAS FILED BY SHRI VINOD KUMAR GROVER, KARTA OF THE HUF IN WHI CH HE HAS ARGUED THAT VARIOUS NOTICES WERE NEVER SERVED UPON HIM. IT WAS ALSO VEHEMENTLY ARGUED THAT NOTICES WERE NEVER FIXED AT HIS ADDRESS I.E. 2-A, NAYA MAR G, CHANKYAPURI, NEW DELHI WHERE THE ASSESSEE IS WORKING AS A CONSULTANT ON F OREIGN POLICY MATTERS WITH INDO GERMAN CHAMBER OF COMMERCE. LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE ISSUE AND HELD AS UNDER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF TH E APPELLANT. SINCE THE APPELLANT HAD ARGUED THAT THESE NOTICES WERE N EVER SERVED UPON THE APPELLANT, I HAD ASKED THE LEARNED ASSESSING OF FICER TO ESTABLISH THIS FACT ON THE BASIS OF PERUSAL OF THE CASE RECOR D AND REPORT BACK THE MATTER. TILL DATE THE LEARNED ASSESSING OFFIC ER HAS NOT SENT THE REMAND REPORT BUT HAS SUBMITTED AN INTERIM REMAND R EPORT IN WHICH IT WAS STATED THAT ON COMPLETION OF CONFIRMATIONS A ND EVIDENCE FROM ITA NO. 692/DEL/2010 A.Y. 2006-07 3 THE APPELLANT REMAND REPORT WILL BE SUBMITTED. HOW EVER, I FIND THAT THE ASSESSING OFFICER WAS REQUIRED TO CONFIRM ONL Y THE FACT WHETHER ORIGINAL NOTICE U/S. 143(2) DATED 18/10/2007, WHICH WAS THE ONLY NOTICE ISSUED WITHIN 12 MONTHS, WAS SENT AND SERVED UPON THE APPELLANT, AT THE CORRECT ADDRESS AS DISCLOSED BY A PPELLANT AS PER RETURN OF INCOME OR NOT. IF THE ASSESSING OFFICER HAS SENT NOTICES AT ANY OTHER ADDRESS, IT CANNOT BE SAID THAT THE NOTIC E COULD HAVE EVER BEEN SERVED UPON THE ASSESSEE, BY ANY PRUDENCE. SIN CE THE NOTICE DATED 18/07/2007 WAS NOT SERVED UPON THE APPELLANT, ON ACCOUNT OF REASONS ATTRIBUTABLE TO ASSESSING OFFICER , I AM OF THE VIEW THAT IN TERMS OF PROVISIONS OF SECTION 143(2), THE ASSESSM ENT PROCEEDINGS INITIATED BY THE ASSESSING OFFICER VIDE THE SAID N OTICE, WERE VOID. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. 6. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. WE FIND THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS GIVEN A CATEGORICAL FINDING THAT ASSESSING OFFICER DID NOT CONFIRM AS TO WHETHER NO TICE U/S 143(2) DATED 18.10.2007 WHICH WAS ONLY NOTICE ISSUED WITHIN 12 M ONTHS WAS SENT / SERVED UPON THE ASSESSEE AT HIS CORRECT ADDRESS AS DISC LOSED BY THE ASSESSEE, AS PER RETURN OF INCOME. THE CORRECT ADDRESS OF THE ASS ESSEE AS PER THE LAST RETURN WAS 2-A, NYAYA MARG, CHANKYA PURI, NEW DELHI WHILE THE NOTICE DATED 18.10.2007 WAS SERVED AT A-1/134, SAFDERJUNG ENCLAVE, NEW DELHI, W HICH THE ASSESSEE-HUF HAD REPORTEDLY VACATED 6 YEARS AGO. THE ASSESSING OFFI CER HAD NOT GIVEN ANY REPLY TO THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND TH E DEPARTMENT BEFORE US IS NOT ABLE TO PUT-FORTH ANY EVIDENCE TO SUPPORT THE GROUND THAT THE SAID NOTICE WAS ITA NO. 692/DEL/2010 A.Y. 2006-07 4 SERVED UPON THE ASSESSEE ON THE CORRECT ADDRESS AS DISCLOSED IN THE RETURN OF INCOME WITHIN THE PRESCRIBED TIME LIMIT. 7. UNDER THE CIRCUMSTANCES, WE DO NOT FIND ANY INFI RMITY OR ILLEGALITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL S). ACCORDINGLY, WE UPHOLD THE SAME. HENCE WE CONFIRM THE LD. COMMISSIONER OF INCOME TAX (APPEALS)S ORDER QUASHING THE ASSESSMENT AB INITIO VOID. SINC E THE ASSESSMENT HAS BEEN ANNULLED ON THE GROUND OF THE JURISDICTION ITSELF, A DJUDICATION ON THE MERITS OF THE CASE IS ONLY AN ACADEMIC INTEREST, HENCE WE ARE NO T GOING INTO THE SAME. 8. IN THE RESULT, THE REVENUES APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/04/2010. SD/- SD/- [C.L. SETHI] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15/04/2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A)5. DR, ITAT TRUE COPY DEPUTY REGISTRAR, ITAT, DELHI BENCHES