Ratan Singh Yadav, Mainpuri V. ITO, Ward-2(2), Ghaziabad

ITA 7390/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0792 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Reopening of assessment; Unexplained investment; Opportunity of being heard; Principle of natural justice; Condonation of delay; Reassessment proceedings
• Section: 271(1)(c); 147; 148; 144

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH F, NEW DELHI BEFORE : SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO.7390 & 7391/DEL/2018 ASSESSMENT YEAR: 2009-10 RATAN SINGH YADAV, R.S. BHAWAN, GANDHI NAGAR, TEHSIL-BHOGAON, MAINPURI (U.P.). PAN-AACPY9853F (APPELLANT) VS. INCOME - TAX OFFICER, WARD 2(2), GHAZIABAD. (RESPONDENT) APPELLANT BY MS. RANO JAIN, ADVOCATE RESPONDENT BY SMT. SULEKHA VERMA, CIT/DR ORDER PER L.P. SAHU, A.M.: BOTH THESE APPEALS, PERTAINING TO ASSESSMENT YEAR 2009-10, ARE FILED BY ASSESSEE AGAINST THE ORDERS DATED 28.09.2018 OF LD. CIT(A), GHAZIABAD, WHEREBY BOTH THE APPEALS OF THE ASSESSEE WERE DISMI SSED AS DEFECTIVE BEING BARRED BY LIMITATION. THE GROUNDS RAISED IN BOTH T HE APPEALS READ AS UNDER : GROUNDS IN ITA NO. 7390/DEL/2018: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ORDER PASSED BY THE LEARNED CIT(A) U/S 147 READ WITH SECTION 144 OF THE ACT IS BAD, BOTH IN THE EYES OF LAW AS WELL AS ON FACTS. DATE OF HEARING 20.03.2019 DATE OF PRONOUNCEMENT 27.03.2019 ITA NOS. 7390 & 7391/DEL/2018 2 2. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER WITHO UT GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD IN VIOLATION OF PRINCIPL E OF NATURAL JUSTICE. (II) THAT THE NON-APPEARANCE BEFORE THE LD. CIT(A) WA S DUE TO REASON BEYOND THE CONTROL OF THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE APPLICATI ON OF CONDONATION OF DELAY DESPITE THE ASSESSEE HAVING SUFFICIENT CAUSE FOR THE DELAY IN FILING OF APPEAL. 4. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 52,52,000/-, MADE BY A.O. ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN IMMOVABLE PROPERTY WITHOUT APPRECIATING THE FACTS OF THE CASE . (II) THAT THE ADDITION WAS MADE DESPITE ANY CORROBOR ATING EVIDENCE AVAILABLE ON RECORD. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN UPHOLDING THE INITIATIO N OF REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT AS THE SAME WAS BAD IN THE EYES OF LAW AS THE PROCEDURE PRESCRIBED U/S 147 OF THE HAS NOT BEE N COMPLIED WITH. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN SUSTAINING THE BEST JUD GMENT ASSESSMENT U/S 144 OF THE ACT WITHOUT SERVING A VALID NOTICE U/S 1 48 OF THE ACT ONTO THE APPELLANT AND WITHOUT PROVIDING SUFFICIENT PROVIDIN G TO THE APPELLANT TO PRESENT ITS CASE. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN SUSTAINING THE REOPENING OF ASSESSMENT PROCEEDIN GS U/S 147 OF THE ACT AS THE SAME WAS MADE BY FORMING REASONS TO BELIEVE WITHOUT INDEPENDENT APPLICATION OF HIS MIND. 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN SUSTAINING THE REOPENIN G OF ASSESSMENT ITA NOS. 7390 & 7391/DEL/2018 3 PROCEEDINGS U/S 147 OF THE INCOME TAX ACT, 1961 WIT HOUT HAVING VALID REASONS TO BELIEVE THAT THE INCOME HAS ESCAPED ASSE SSMENT. 9. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE RE-OPENING OF ASSESSMENT PROCEEDI NGS U/S 147 OF THE ACT WITHOUT OBTAINING NECESSARY APPROVAL U/S 151 OF THE ACT FROM THE PRESCRIBED AUTHORITY AND THAT IT WAS GRANTED IN A M ECHANICAL MANNER. 10. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ASSESSME NT OF INCOME AT RS. 52,52,000/- AS AGAINST THE RETURNED INCOME OF RS. N IL/-. 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN SUSTAINING THE ADDITION OF RS. 52,52,000/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN IMMOVABLE P ROPERTY WITHOUT THERE BEING ANY BASIS FOR THE SAME. GROUNDS IN ITA NO. 7391/DEL/2018: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ORDER PASSED BY THE LEARNED CIT(A) UPHOLDING THE LEVY OF PENALTY BY AO U /S 271 (1 )(C) OF THE ACT IS BAD, BOTH IN THE EYES OF LAW AS WELL AS ON F ACTS. 2. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER IMPOS ING PENALTY WITHOUT GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD IN VI OLATION OF PRINCIPLE OF NATURAL JUSTICE. (II) THAT THE NON-APPEARANCE BEFORE THE LD. CIT(A) WA S DUE TO REASON BEYOND THE CONTROL OF THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE APPLICATI ON OF CONDONATION OF DELAY DESPITE THE ASSESSEE HAVING SUFFICIENT CAUSE FOR THE DELAY IN FILING OF APPEAL. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE IMPOSITION OF PENALTY U/S 2 71 (1 )(C) OF THE ACT OF RS. 16,80,000/- ON ACCOUNT OF UNEXPLAINED INVESTMEN TS IN IMMOVABLE PROPERTY WITHOUT APPRECIATING THE FACTS OF THE CASE . ITA NOS. 7390 & 7391/DEL/2018 4 5. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN UPHOLDING THE IMPOSITION OF PENALTY DESPITE THE FACT THAT THE PENALTY PROCEEDINGS WERE INITIATED BY THE AO WITHOUT GIVING ANY FINDINGS ON THE FURNISHING OF IN ACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. (II) THAT THE SHOW CAUSES NOTICE WAS ISSUED WITHOUT MENTIONING THE SPECIFIC CHARGE THEREIN AS TO WHETHER THE PENALTY I S IMPOSED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME OR FOR CONCEALM ENT OF INCOME. 6. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN LEVYING PENAL TY U/S 271(1)(C) OF THE ACT IGNORING THE FACT THAT PENALTY PROCEEDINGS ARE INDEPENDENT OF THE ASSESSMENT PROCEEDINGS. (II) THAT THE MERE DISALLOWANCE OR ADDITIONS PER SE CANNOT BE THE BASIS FOR IMPOSING THE PENALTY U/S 271(1)(C) OF THE ACT. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN IGNORING THE FACT THAT THE ASSESSEE HAS DISCLOSED ALL THE PARTICULARS OF INCOME AND AS SUCH THERE IS NEITHER CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 2. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT I N THE INSTANT CASE, THE ASSESSMENT WAS MADE U/S. 147 READ WITH SECTION 144 OF THE IT ACT BY MAKING AN ADDITION OF RS.52,52,000/- AS UNEXPLAINED INVEST MENT IN PURCHASE OF PROPERTY BECAUSE THE ASSESSEE DID NOT APPEAR BEFORE THE ASSESSING OFFICER TO GET THE AIR INFORMATION RECEIVED WITH RESPECT THERE TO VERIFIED. BASED ON THIS ADDITION, A PENALTY OF RS.16,80,000/- WAS ALSO IMPO SED AGAINST THE ASSESSEE U/S. 271(1)(C) OF THE IT ACT. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A), WHERE ALSO THE ASSESSEE DID NOT APP EAR. HOWEVER, BOTH THE APPEALS WERE DISMISSED BY THE LD. CIT(A) AS DEFECTI VE BEING BARRED BY LIMITATION BY 3 MONTHS OBSERVING THAT THE ASSESSEE DID NOT APPEAR TO OFFER PROPER EXPLANATION FOR CONDONATION OF DELAY. ITA NOS. 7390 & 7391/DEL/2018 5 3. WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE THR OUGH THE MATERIAL AVAILABLE ON RECORD. THE CONTENTION OF THE ASSESSEE AT OUTSET HAS BEEN THAT NO PROPER NOTICE U/S. 148 WAS SERVED UPON THE ASSESSEE AND THE ASSESSEE COULD ALSO NOT APPEAR BEFORE THE LD. CIT(A) DUE TO THE RE ASON BEYOND HIS CONTROL. IT WAS ALSO SUBMITTED THAT THE LD. CIT(A) WHILE REJECT ING THE APPEALS AS DEFECTIVE DID NOT CONSIDER THE REASON FOR DELAY IN RIGHT PERS PECTIVE. THE LD. AR, THEREFORE, SUBMITTED THAT THE ASSESSEE, MAY BE GIVE N ONE MORE OPPORTUNITY OF BEING HEARD TO SUBSTANTIATE THE REASON FOR DELAY IN FILING THE APPEALS AND TO PUT UP ITS CASES ON MERITS. THE LD. DR, THOUGH RELI ED ON THE IMPUGNED ORDERS, BUT DID NOT OBJECT TO THE REQUEST OF THE ASSESSEE F OR PROVIDING HIM ONE MORE OPPORTUNITY OF BEING HEARD. IN PRESENCE OF THESE FA CTS, WE THINK IT APPROPRIATE IN THE INTEREST OF NATURAL JUSTICE THAT THE ASSESSE E SHOULD BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD SO AS TO SUBSTANTIATE IT S REASONS FOR DELAY AND TO PUT UP ITS CASES ON MERITS BEFORE THE LD. CIT(A). A CCORDINGLY, BOTH THE APPEALS ARE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR DEC IDING THEM AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 4. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.03.2019. SD/- SD/- (H.S. SIDHU) (L.P. SA HU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27.03.2019 *AKS*