Sri Nipunj Agarwal, Bareilly V. Income Tax Officer-2(1), Bareilly

ITA 795/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4722 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 31-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHOK SETH
• Keywords: Business income; Assessment record
• Section: 142(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 795/LKW/2015 ASSESSMENT YEAR: 2009 - 10 SHRI. NIPUNJ AGARWAL BAREILLY V. INCOME TAX OFF ICER 2(1) BAREILLY T AN /PAN : AOBPA2184E (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. ASHOK SETH, C.A. RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 03 02 201 6 DATE OF PRONOUNCEMENT: 10 02 201 6 O R D E R PER SUNIL KUMAR YADAV: THIS AP PEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - 1 . THAT NO NOTICE U/S 148 WAS SERVED ON THE APPELLANT HENCE THE ORDER PASSER IS AB - INITIO ILLEGAL. 2 . THAT NO NOTICES U/S 142(1) AS ALLEGED IN THE ORDER WERE SERVED ON THE APPELLANT HENCE THE ORDER PASSED IS AB - INITIO ILLEGAL. 3 . THAT INITIATING PROCEEDINGS U/S 147 SIMPLY ON THE BASIS OF AIR INFORMATION A ND WITHOUT APPLICATION OF INDEPENDENT MIND OF THE AO IN BAD IN LAW. 4 . THAT IN THE FACTS AND CIRCUMSTANCES O F THE CASE THE LEARNED LOWER COURT ERRED H SUSTAINING THE ADDITIONS MADE OF RS. 11,72,016/ - WITHOUT CONSIDERING THE WITHDRAWALS MA LE FROM THE BANK ACCOUNT. : - 2 - : 5 . THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED LOWER COURT ERRE D IR SUSTAIN THE ADDITIO N OF RS. 2,00,000/ - AS BUSINESS INCOME. 6 . THAT ANYHOW WITHOUT PREJUDICE TO THE ABOVE THE ADDITIONS MADE ARE TOO EXCESSI V E ARBITRARY AND WITHOUT ANY BASIS. 7 . THAT THE ORDER PASSED IS AGAINST THE MERIT, CIRCUMSTANCES AND LEGAL ASPECTS OF THE CASE. 2 . DURING THE COU RSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT' ) WAS NOT SERVED UPON THE ASSESSEE. THEREFORE, THE ASSESSMENT FRAMED CONSEQUENT THERETO UNDER SE CTION 147 OF THE ACT IS NOT SUSTAINABLE IN THE EYES OF LAW. THE ASSESSEE HAS ALSO RAISED A GROUND ON THIS ISSUE BEFORE THE LD. CIT(A), BUT THE LD. CIT(A) HAS NOT ADJUDICATED THIS GROUND AND HAS DISMISSED THE APPEAL OF THE ASSESSEE. IN SUPPORT OF HIS CONT ENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO GROUND NO.5 RAISED BEFORE THE LD. CIT(A) AND THE FINDINGS OF THE LD. CIT(A).] 3 . THE LD. D.R. HAS SIMPLY PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). HE HAS FURTHER SUBMITTED THAT THE SE FACTS REQUIRE A PROPER VERIFICATION OF RECORD. 4 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSEE HAS RAISED A SPECIFIC GROUND BEFORE THE LD. CIT(A) WITH REGARD TO THE SERVICE O F NOTICE UNDER SECTION 148 OF THE ACT, BUT THE LD. COMMISSIONER OF INCOME TAX HAS NOT ADJUDICATED THIS GROUND AND HAS DISMISSED THE APPEAL SUMMARILY. FOR FRAMING AN ASSESSMENT CONSEQUENT TO A VALID REOPENING OF THE ASSESSMENT, THE ASSESSING OFFICER IS REQ UIRED TO SERVE NOTICE UNDER SECTION 148 OF THE ACT UPON THE ASSESSEE TO ASSUME JURISDICTION. IF THE NOTICE IS NOT SERVED UPON THE ASSESSEE, THE ASSESSMENT FRAMED : - 3 - : CONSEQUENT THERETO IS NOT A VALID ASSESSMENT AND DESERVES TO BE QUASHED. IN THE INSTANT CASE , THE LD. COMMISSIONER OF INCOME TAX HAS NOT GIVEN A SPECIFIC FINDING WHETHER NOTICE UNDER SECTION 148 OF THE ACT WAS SERVED UPON THE ASSESSEE OR NOT. THOUGH THE ASSESSING OFFICER HAS MENTIONED IN HIS ORDER THAT NOTICE WAS ISSUED BUT THERE IS NO RECORDING OF FACT WITH REGARD TO THE SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT. IN SUPPORT OF THE CONTENTION OF THE ASSESSEE, AN AFFIDAVIT OF THE ASSESSEE IS ALSO PLACED ON RECORD. IN THE LIGHT OF THESE CONTENTIONS, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRE S A PROPER ADJUDICATION BY THE LD. CIT(A) IN THE LIGHT OF ASSESSMENT RECORD. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE ISSUE OF VALID SERVICE OF NOTICE UNDER SECTION 148 OF T HE ACT. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT I ONED ON THE CAPTION ED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH 1 . APPELLANT FEBR UARY, 2016 JJ: 0302 COPY FORWARDED TO: 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR