Snighendu Bikas Bhaumik, Noida V. ITO, Ward- 3(4), Noida

ITA 829/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7214 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Salary income; Principle of natural justice; Source of fund; Cost of acquisition; Non compliance
• Section: 133(6); 201; 143(2); 246A; 147; 69; 148; 144

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B+SMC : NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 829/DEL/2019 (ASSESSMENT YEAR: 2009 - 10 ) SNIGHENDU BIKAS BHAUMIK, C/O. ADVOCATE DEEPAK KAPOOR, 59, NEHRU APARTMENTS, OUTER RING ROAD, KALKAJI, NEW DELHI PAN: AHZPB0723H VS. ITO, WARD - 3(4), NOIDA (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DEEPAK KAPOOR, ADV REVENUE BY: SHRI UMESH TAKYAR, SR. DR DATE OF HEARING 30/10 / 201 9 DATE OF PRONOUNCEMENT 2 7 / 01 / 2020 O R D E R PER PRASHANT MAHARISHI , A. M. 1 . THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - I, NOIDA DATED 31.08.2018 FOR THE ASSESSMENT YEAR 2009 - 10. THE LD CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE FOR NON - COMPLIANCE OF THE REQUIREMENT OF SECTION 249(1)(A) OF THE ACT. FURTHER, THE ASSESSEE ALSO DID NOT COMPLY WITH THE PROVISION OF SECTION 249(4)(B) OF THE ACT. THUS, THE ASSESSEE AGGRIEVED AND PREFERRED THIS APPEAL. 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. BECAUSE ON FACTS AND IN LAW THE DISMISSAL FOR FIRST APPEAL UNDER SECTION 246A OF THE ACT BY THE LD. CIT (A) IS UNJUSTIFIED AND ILLEGAL. THE ADDRESS OF THE ASSESSEE AS ADMITTEDLY FILLED IN FORM NO. 35 HAS NOT BEEN USED FOR SENDING NOTICES IN AS MUCH AS THE TOWER NO. IS MISSING FROM THE POSTAL ADDRESS. THE ASSESSEE, THEREFORE, NEVER GOT THE OPPORTUNITY TO MAKE REPRESENTATION BEFORE THE LD. CIT (A) - L THEREFORE, THE DISMISSAL OF THE FIRST APPEAL IS UNJUSTIFIED, ILLEGAL AND UNWARRANTED. 2. BECAUSE THE ASSESSEE D ULY PAID THE APPEAL FILING FEE OF RS. 1000/ - VIDE CHALLAN NO. 50626 AND THE SAME WAS UPLOADED ON THE PORTAL. THE DETAILS OF THE CHALLAN IS ALSO AVAILABLE IN FORM NO. 35 IN PARA - 16. THE EMAIL ADDRESS AND MOBILE NO. OF THE ASSESSEE WAS ALSO GIVEN BUT THE AS SESSEE NEVER CAME TO KNOW ABOUT ANY NOTICE FROM THE LD. CIT (A). THEREFORE, THE DISMISSAL OF THE APPEAL IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND THE ASSESSMENT ORDER DESERVES TO BE QUASHED PAGE | 2 3. BECAUSE THE FLAT WAS PURCHASED/ALLOTTED TO THE ASSESSEE IN F.Y. 2007 - 08 RELEVANT TO A.Y. 2008 - 09. THE LD. AO HAS MADE THE ADDITIONS UNDER SECTION 69 ON ACCOUNT OF PURCHASE COST OF FLAT IN A.Y. 2009 - 10. THEREFORE, THE ASSESSMENT MADE IS BAD IN LAW AND THE SAME DESERVES TO BE QUASHED. 4. BECAUSE NOTICE ISSUED U/ S 148 IS INVALID & ILLEGAL ON INTER - ALIA GROUNDS: A) THE NOTICE U/S 148 AND OTHER RELATED NOTICES NEVER SERVED ON ASSESSEE. FIRST NOTICE U/S 271 (1)(C) SERVED ON ASSESSEE. ALL THE NOTICES HAVE SAME ADDRESS MEANS THERE IS NO SERVICE OF NOTICE U/S 148 TO ASS ESSEE. THEREFORE, NOTICE ISSUED BY THE LD. AO U/S 148 DESERVES TO BE QUASHED. B) THE NOTICE U/S 148 WAS ISSUED MERELY ON THE BASIS OF AIR INFORMATION. LD. AO. FAILED TO BRING MORE MATERIAL ON RECORDS SHOWS THAT ASSESSEE HAVE ESCAPED INCOME U/S 147 OF THE A CT. THEREFORE, NOTICE ISSUED BY THE LD. AO U/S 148 DESERVES TO BE QUASHED. C) THE JURISDICTION OF ASSESSEE LIES WITH I TO, WARD 2(5), MEERUT. THE NOTICE U/S 148 ISSUED BY ITO, WARD 3(4), NOIDA WHO HAS NO JURISDICTION ON ASSESSEE IS ILLEGAL & INVALID AND LI ABLE TO BE QUASHED. D) THE LD. AO HAS NOT ISSUED STATUTORY NOTICE U/S 143(2) OF THE ACT. WHICH IS CLEAR VIOLATION OF PRINCIPLE LAID DOWN BY HONBLE SUPREME COURT AS WELL AS JURISDICTIONAL HIGH COURT & OTHER HIGH COURTS. THEREFORE, NOTICE U/S 148 IS INVALI D & VOID AB - INITIO AND LIABLE TO BE QUASHED. NOTWITHSTANDING & WITHOUT PREJUDICE THE ABOVE GROUND THE OTHER GOUNDS OF APPEALS ARE AS UNDER: 5. BECAUSE ADDITION OF RS. 45,60,750 / - ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69 OF THE ACT IS TOTALLY UNJUSTIFIED AND ILLEGAL. THE SAME DESERVES TO BE DELETED IN TOTO ON THE FOLLOWING, INTER - ALIA, GROUNDS. A) THAT ON FACTS AND IN LAW AND GROUNDS TAKEN AND BASIS ADOPTED, THE ADDITION OF RS . 45,60,750/ - BY ASSUMING UNEXPLAINED INVESTMENT IS TOTALLY WRONG, UNJUSTIFIED AND ILLEGAL. ASSESSEE HAS PURCHASED FLAT FROM KNOWN SOURCE OF FUNDS AND PAYMENT FOR PURCHASE OF FLAT WAS MADE BY WAY OF CHEQUES. THEREFORE, THE ADDITION OF RS. 45,60,750/ - IS NO T MAINTAINABLE AND THE SAME DESERVES TO BE DELETED IN FULL. B) THAT LD. AO DID NOT PASS A SPEAKING ORDER. THE LD. AO TOTALLY RELIED ON AIR INFORMATION. HE FAILED TO BRING MORE MATERIAL ON RECORDS WHICH SHOWS THAT ASSESSEE HAS ESCAPED INCOME. 3 . BRIEF FACTS O F THE CASE SHOWS THAT THE ASSESSEE IS A SOFTWARE DEVELOPER EARNING SALARY INCOME. HE BELONG S TO AGARTALA. THE ASSESSEE PURCHASED A FLAT IN ASSESSMENT YEAR 2008 - 09 FOR RS. 4560750/ - BY TAKING A LOAN OF RS. 25 LAKHS FROM ICICI BANK AND FURTHER SHOWING SOURCE OF FUND OUT OF HIS PAST SAVING AS WELL AS MONEY FROM HIS WIFE. THIS AIR INFORMATION WAS PAGE | 3 RECEIVED BY THE LD AO. HE ASKED INFORMATION U/S 133(6) OF THE ACT FROM ASSESSEE WHICH WAS NOT RESPONDED. LD AO WORKED THAT HE ALSO DID NOT FILE ANY RETURN OF INCOME. T HEREFORE, TO TREAT INVESTMENT OF RS. 45,60,750/ - U/S 69 NOTICE U/S 148 WAS ISSUED ON 28.03.2016. THE ASSESSEE DID NOT COMPLY, THEREFORE, HE ESTIMATED THE TOTAL INCOME OF THE ASSESSEE AT RS. 1,50,000/ - AND MADE AN ADDITION OF RS. 45 , 60 , 750/ - U/S 69 OF THE ACT. THUS, HIS TOTAL INCOME WAS ASSESSED AT RS. 47 , 10 , 750/ - . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT(A) AGAINST THE ORDER PASSED BY THE LD AO U/S 144 ON 11.11.2016. THE LD CIT(A) DID NOT ADMIT THE APPEAL OF THE ASSESSEE AND DISMISSED IT FOR VA RIOUS DEFAULT. 4 . THE LD AR SUBMITS THAT ASSESSEE IS REGULARLY ASSESSED WITH ITO - 2(5), MEERUT FOR ASSESSMENT YEAR 2009 - 10 . ASSESSEE HAS ALREADY FILED RETURN OF INCOME ON 10.06.2010 DECLARING INCOME OF RS. 3 , 24 , 280/ - . THEREFORE, THE LD AO HAS WRONGLY STATED THAT NO RETURN OF INCOME HAS BEEN FILED. ON THE MERITS OF THE ISSUE HE SUBMITTED THAT ASSESSEE HAS PURCHASE D ABOVE FLAT BY TAKING LOAN FROM ICICI BANK OF RS. 25 LAKHS AND FUND FROM HIS PERSONAL SAVING AS WELL AS HIS WIFE. HE SUBMITTE D THAT THE LD CIT(A) DID NOT GIVE ANY OPPORTUNITY OF HEARING TO THE ASSESSEE. HE FURTHER STATED THAT ADDRESS ON WHICH NOTICE WERE SENT WERE ALSO NOT CORRECTLY MENTIONED. HE SUBMITTED THAT IT DID NOT MENTION THE RELEVANT TOWER NO AND THEREFORE, SUCH NOTICE RETURNED BACK. HE FURTHER SUBMITTED THAT REASONS RECORDED BY THE LD AO ARE ALSO NOT SUSTAINABLE. HE ALSO REFERRED TO THE FACT THAT HIS PAN LIES WITH ITO, WARD - 2(5), MEERUT AND THE LD AO DOES NOT HAVE THE JURISDICTION. HE FURTHER REFERRED TO SEVERAL JUDICIA L PRECEDENTS. 5 . THE LD SR. DR VEHEMENTLY SUBMITTED THAT ASSESSEE DID NOT COMPLY WITH THE AO WHO PASSED AN ORDER U/S 144 OF THE ACT. EVEN 133(6) NOTICE S WERE ALSO NOT REPLIED. HE SUBMITTED THAT BEFORE THE LD CIT(A) A NOTICE WAS ISSUED BUT NONE APPEARED. HE T HEREFORE, SUBMITTED THAT NOW THE ASSESSEE DOES NOT HAVE ANYTHING TO SAY. 6 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IN THE PRESENT CASE THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED AS NOT ADMIT TED AND FURTHER FOR NON COMPLIANCE. IN FACT THE LD CIT(A) DID NOT ISSUE THE NOTICE BY MENTIONING THE CORRECT TOWER NO WHICH WAS MENTIONED IN FORM NO. 35 PRODUCED BEFORE US. PAGE | 4 LOOKING TO THE WHOLE FACTS IT IS APPARENT THAT ASSESSEE DID NOT GET PROPER OPPORTUN ITY OF HEARING BEFORE THE LD CIT(A). HENCE , WE REMIT THE WHOLE APPEAL BACK TO THE FILE OF THE LD CIT(A) TO GRANT PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEN DECIDE THE ISSUE ON MERITS. THEREFORE, IN THE INTEREST OF JUSTICE WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE LD CIT(A) ALONG WITH COP Y OF THIS ORDER AND MAKE HIS SUBMISSION ON ALL THE COUNTS WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. THEREAFTER, THE LD CIT(A) MAY DECIDE THE ISSUE IN ACCORDANCE WITH LAW. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED WITH ABOVE DIRECTION FOR STATISTICAL PUROSE . ORDER PRONOUNCED IN THE OPEN COURT ON 2 7 / 01 / 2020 . - SD/ - - SD/ - ( SUDHANSHU SRIVASTAVA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 7 / 01 / 2020 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI