Maneeta, Noida V. ITO, Ward- 2(2), Noida

ITA 7036/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8591 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 23-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Principle of natural justice; Source of fund; Reassessment proceedings
• Section: 142(1); 234B; 139(1); 13; 148; 144; 2

Judgement Text

1 ITA NO. 7036/DEL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL ME MBER AND SH. PRASHANT MAHARISHI, ACCOUN TANT MEMBER I.T.A. NO. 7036/DEL/20 17 (A.Y 2009-10) (THROUGH VIDEO CON FERENCING) MANEETA HOUSE NO. 41, GARHI SHAHPUR, GOVARDHANPUR, SECTROR-128, NOIDA, UTTAR PRADESH DHQPM9766R (APPELLANT) VS ITO WARD-2(2) AAYAKAR BHAWAN, SECTOR-24, NOIDA (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 25/09/2017 PASSED BY CIT(A)-1, NOIDA FOR ASSESSMENT YEAR 2009 -10. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT (A) ERRED IN NOT CONSIDERING THE 1 ST AND 2 ND GROUND OF APPEAL I.E. THE A.O. WAS WRONG IN INITIATING REASSESSMENT PROCEEDINGS U/S 14 7/148 OF THE INCOME-TAX ACT, 1961 (THE ACT) AS THE PURPORTED NOTICE STATED TO BE SENT BY THE A.O. WAS NEVER SERVED TO THE ASSESSE. IT IS CONTENDED THAT T HE STATUTORY TIME LIMIT FOR SERVICE OF NOTICE U/S 149(L)(B) OF THE ACT FOR THE AY 2009-10 WAS 31.03.2016. APPELLANT BY SH. AMOL SINHA, ADV RESPONDENT BY SH. GAURAV PUNDIR, SR. DR DATE OF HEARING 27.07.2021 DATE OF PRONOUNCEMENT 13.08.2021 2 ITA NO. 7036/DEL/2017 NO NOTICE WAS SERVED TO THE ASSESSEE WITHIN THE STA TUTORY TIME I.E. ON OR BEFORE 31.03.2016 AND HENCE, THE REASSESSMENT WAS B ARRED BY LIMITATION. IT IS STATED THAT THE A.O. HAS ISSUED A CORRIGENDUM DATED 17/04/2017 TO THE ASSESSMENT ORDER DATED 28/11/2016 FOR A.Y. 2009-10. THIS CORRIGENDUM STATES THAT THE NAME AND ADDRESS MENTIONED IN THE A SSESSMENT ORDER IS NOT CORRECT AND IT WAS CORRECTED BY THE A.O. BY WAY OF THIS CORRIGENDUM. IT PROVES THAT THE A.O. WAS NOT HAVING CORRECT NAME AND ADDRE SS OF THE APPELLANT AND THE NOTICE U/S 147/148 WAS NEVER SERVED TO THE ASSE SSE WITHIN THE STATUTORY TIME LIMIT FOR ISSUING NOTICE U/S 148 OF THE ACT. H ENCE THE RE-ASSESSMENT PROCEEDINGS ARE VOID AB-INITIO. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT (A) ERRED IN NOT CONSIDERING GROUND NUMBER 3 OF APPEAL BEFORE HIM. THE A.O. HAD IMPOSED INTEREST U/S 234A AND 234B AMOUNTING TO RS. 16,85,622/- AND 17,62,242/- RESPECTIVELY. IT WAS APPEALED BEFORE TH E LD. CIT (A) THAT, AS THE APPELLANT WAS NOT HAVING ANY TAXABLE INCOME AND HEN CE WAS NOT LIABLE TO FILE INCOME TAX RETURN U/S 139(1) OF THE INCOME-TAX ACT, 1961 (THE ACT). ACCORDINGLY, THE APPELLANT WAS ALSO NOT LIABLE TO P AY ADVANCE TAX U/S 208/210 OF THE ACT. THEREFORE, THE INTEREST IMPOSED BY THE A.O. IS NOT VALID AND VOID AB-INITIO. THE INTEREST IMPOSED SHOULD BE DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS.L 1,12,117/ -, AS AGAINST RS.67,11,600/- MADE BY THE A.O., HOLDING THE FACT T HAT THE SOURCE OF INVESTMENT REMAINED UN-EXPLAINED. THOUGH THE LD. CI T (A) REDUCED THE AMOUNT OF ADDITION MADE BY THE A.O. TO L/6 TH , BEING THE SHARE OF PROPERTY THE APPELLANT HOLD IN FAMILY INCOME/ASSETS, BUT HAS NOT ACCEPTED THE CONTENTION OF THE APPELLANT REGARDING THE SOURCE OF FUNDS. 4. THE LD. CIT (A) ERRED IN REJECTING THE CONTENT ION OF THE APPELLANT THAT THE INVESTMENT WAS FUNDED BY HER HUSBAND. THE APPEL LANT HAD SUBMITTED TO THE A.O., THE SOURCE OF FUNDS FOR THE INVESTMENT, W HICH HAS BEEN ACCEPTED BY THE A.O. AS WELL AS THE CIT (A), BUT THE CIT (A) HA S NOT CONSIDERED THE SAME RELYING ON THE STATEMENT OF THE A.O. IN HIS REMAND REPORT THAT THE APPELLANT DESERVE NO FURTHER RELIEF IN THE MATTER EXCEPT THAT HE WAS LIABLE FOR 3 ITA NO. 7036/DEL/2017 CONSIDERATION OF L/6 TH OF THE AMOUNT INVESTED IN PURCHASE OF THE IMMOVABL E PROPERTY. THE LD. CIT (A) HAS STATED THAT THERE IS NO LINK BETWEEN THE HUSBAND AND THE WIFE, QUA TRANSFER OF MONEY. IN THIS REGARD IT IS STATED THAT THE APPELLANT HAS TAKEN THE FUNDS IN CASH FROM HER HUSBAND FOR THIS INVESTMENT. THE HUSBAND OF THE APPELLANT WAS HAVING THIS MONEY OUT OF HIS AGRICULTURAL INCOME AND HIS F ATHER HAD GIVEN HIM CASH, BEING HIS SHARE OF INCOME ON COMPENSATION RECEIVED ON ACCOUNT OF COMPULSORY ACQUISITION OF LAND BY NOIDA AUTHORITY. THIS WAS IN FORMED BY THE APPELLANT TO THE A.O. IN THIS REGARD, IT IS KINDLY SUBMITTED THA T TRANSFER OF CASH BETWEEN SPOUSES DO NOT REQUIRE ANY LINKAGE OR DOCUMENTARY E VIDENCE. ONCE THE SOURCE OF INCOME HAS BEEN ACKNOWLEDGED, ITS DISTRIBUTION B ETWEEN SPOUSES NEED NO QUESTIONING. 3. THE ASSESSEE IS A HOUSE WIFE AND FARMER AND DI D NOT HAVE ANY TAXABLE INCOME, HENCE NOT FILED INCOME TAX RETURN OR POSSES SES ANY PAN/GIR NO. NOTICE OF DEMAND U/S 156 OF THE INCOME TAX ACT FOR RS. 53,63,315/- ALONG WITH ASSESSMENT ORDER U/S 147/144 OF THE ACT WAS RECEIVE D BY THE ASSESSEE ON 1 ST DECEMBER, 2016. THE ASSESSING OFFICER HAS MADE ADD ITION OF RS. 67,11,600/- IN RESPECT OF ANY EXPLAINED PROPERTY INVESTMENT. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, TH E ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE NOTICE U/S 148 DATED 28/3/2016 ALONG WITH QUESTIONNAIRE THROUGH NOTICES U/S 142(1) DATED 5/4/2016, 4/10/2016 & 3/11/2016 WERE NOT SERVED TO THE ASSESSEE. THE ADD RESS GIVEN IN THE ASSESSMENT ORDER WAS ALSO NOT ADEQUATE/NOT PROPER. THEREFORE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN PASSING EX-PARTE ORDER U/S 144 AND THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFIC ER. THE LD. AR FURTHER SUBMITTED THAT THE CIT(A) HAS NOT DEALT WITH THE LE GAL ISSUE OF NON-SERVICE OF NOTICES. 4 ITA NO. 7036/DEL/2017 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE CIT(A) HA S NOT GIVEN THE FINDING IN RESPECT OF NON-SERVICE OF NOTICE UNDER SECTION 148 & 142(1) OF THE ACT TO THE ASSESSEE BY THE ASSESSING OFFICER. THEREFORE, IT W ILL BE APPROPRIATE TO REMAND BACK THIS ISSUE TO THE FILE OF THE CIT(A) AND WE DI RECT THE CIT(A) TO ADJUDICATE THESE LEGAL GROUNDS. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF AUGUST, 2021. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 13/08/2021 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 7036/DEL/2017