Sh. Jaswinder Singh, United Kingdom V. DCIT (Intl. Taxation), Chandigarh

ITA 847/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3793 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 05-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR
• Keywords: Reason to believe
• Section: 147; 148; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NOS. 847 TO 850/CHD/2018 / A.YS : 2008-09 TO 2011-12 SHRI JASWINDER SINGH, # 15A, ATHLONE ROAD, WALSALL,(U.K.) WS 53 QU. VS THE DCIT (INTERNATIONAL TAXATION), CHANDIGARH. ./ PAN NO: CPVPS5392K / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI TEJ MOHAN SINGH # ! ' / REVENUE BY : SMT. CHANDERKANTA, SR.DR $ % ! &/ DATE OF HEARING : 29.11.2018 '()* ! &/ D ATE OF PRONOUNCEMENT : 29.01. 2019 )+/ ORDER PER BENCH THESE FOUR APPEALS FILED BY THE ASSESSEE PERTAINING TO 200 8-09 TO 2011-12 ASSESSMENT YEAR ARE BEING DECIDED BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. IT WAS A COMMON STAND OF THE PART IES BEFORE THE BENCH THAT THE ISSUES ARISING IN GROUND NO. 3 IN ITA-847/CHD/2 018 WOULD FULLY APPLY TO SIMILAR GROUNDS RAISED BY THE ASSESSEE IN EACH OF THE OTHER APPEALS. 2. IN VIEW OF THE COMMON STAND OF THE PARTIES IN THE RE SPECTIVE APPEALS, WE REPRODUCE THE GROUNDS FROM ITA 847/CHD/2018 : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW IN UPHOLDING THE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT AND THEREAFTER FRAMING AN EX- PARTE ASSESSMENT WITHOUT COMPLYING WITH THE REQUIRE MENTS OF SECTION 148 WHICH IS ILLEGAL, ARBITRARY AND UNJUSTIFIED AND AS SUCH THE ASSESSMENT MERITS ANNULMENT. 2. THAT THERE BEING NO ESCAPEMENT OF INCOME LEADING TO FORMATION OF REASON TO BELIEVE, UPHOLDING THE RESORT TO THE PROVISIONS OF SECTION 148 OF THE ACT IS ILLEGAL, ARBITRARY AND UNJUSTIFIED ESPECIALLY WHEN THE AMOUN T MENTIONED IN THE REASONS RECORDED AND THE ADDITION MADE IS DIFFERENT. 3. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HA S FURTHER ERRED IN UPHOLDING THE FRAMING OF ASSESSMENT UNDER SECTION 144 OF THE ACT WITHOUT AFFORDING ANY OPPORTUNITY OF HEARING WHICH IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. ITA 847TO850/CHD/2018 A.Y. 2008-09 TO 2011-12 PAGE 2 OF 4 4. WITHOUT PREJUDICE TO THE ABOVE, THE LD. ASSESSING O FFICER HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO COMPUTE THE TOTAL CREDITS RECE IVED BY THE ASSESSEE IN HIS BANK ACCOUNTS AND DETERMINE TAX LIABILITY BASED ON SUCH CREDITS AS AGAINST ADDITION OF RS. 13,60,1437- WHEN IN FACT NO AMOUNT HAS BEEN RECEIVE D BY THE ASSESSEE AND AS SUCH THE ADDITION MADE AND UPHELD IS ARBITRARY AND UNJUSTIFI ED. 5. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TA X( PASSED UNDER SECTION 144 READ WITH SECTION 148 OF THE ACT IS ERRONEOUS, ARBITRARY , OPPOSED TO LAW AND FACTS OF THE CASE AND IS, THUS, UNTENABLE . 3. THE PARTIES AT THE TIME OF THE HEARING WERE HEARD ON LY ON GROUND NO. 3. THE RELEVANT FACTS OF THE CASE WHICH ARE COMMON TO EACH OF THE YEARS ARE THAT THE ASSESSEE IS STATED TO BE A BRITISH CITIZEN AND NRI WHO HAD RECEIVED INCOME IN INDIA AND ADMITTEDLY HAD NOT FILED HIS INCOME TAX RETURN IN THE RESPECTIVE YEARS. THE ASSESSING OFFICER CONSIDERING THE FA CTS RECORDING THE REASONS IN THE ASSESSMENT ORDER ITSELF PASSED AN ORDER U/S 144 READ WITH 147. THE RELEVANT FACTS FROM ASSESSMENT ORDER DATED 29.03.2016 PERTAINING TO 2008-09 ASSESSMENT YEAR IS EXTRACTED HER EUNDER FOR READY REFERENCE : 'THE ASSESSEE SH. JASWINDER SINGH IS BRITISH CI TIZEN AND N.R.I. AS PER INFORMATION AVAILABLE, THE ASSESSEE MADE INVESTMENT IN THE OMAX E NOVELTY MALL, AMRITSAR AND WAS ALLOTTED UNIT NO. 9 & 10 AND 4 TH AND 5 TH FLOOR OF OMAXE NOVELTY MALL SITUATED AT LAWRENCE ROAD, AMRITSAR, PUNJAB, M/S OMAXE LTD. COR PORATE OFFICE-7, LOCAL SHOPPING CENTRE, KALKAJI, NEW DELHI - 110019 HAS PAID ASSURE D RETURN PER MONTH IN RESPECT OF ABOVE SAID PROPERTIES TO THE ASSESSEE DURING THE F. Y. 2007-08 RELEVANT TO A.Y. 2008-09 WHICH WERE CREDITED TO ASSESSEE'S BANK ACCOUNT NO. 1339000500012088 WITH PUNJAB NATIONAL BANK, BASANT AVENUE, AMRITSAR. THE TOTAL A SSURED RETURN DURING THE F.Y. 2007- 08 RELEVANT TO A.Y. 2008-09 HAS BEEN RECEIVED AMOU NTING TO RS. 10,93,035/-. AS PER RECORD OF THIS OFFICE, THE ASSESSEE HAS NOT FILED H IS RETURN OF INCOME IN INDIA. THE ASSESSEE IS NRI AND HE HAS RECEIVED INCOME IN INDIA AND HAS NOT FILED INCOME TAX RETURN. IN VIEW OF THE ABOVE FACTS, I HAVE REASONS TO BELIEVE THAT INCOME OF RS. 10,93,035/- CHARGEABLE TO TAX HAS ESCAPED ASSESSMEN T FOR THE F.Y. 2007-08 RELEVANT TO A.Y. 2008-09 AND THE CASE NEEDS TO BE RE-OPENED U/S 147 OF THE I.T. ACT, 1961.' 4. THE LD. AR INVITING ATTENTION TO PAGE 10 OF THE IMPUGNED ORDER SUBMITTED THAT THE ASSESSEE BEFORE THE CIT(A) HAD NOT O NLY ASSAILED THE ORDER PASSED U/S 147 FOR WHICH GROUND NOS. 1 AND 2 HAD BEEN RAISED BEFORE THE CIT(A), HE HAD ALSO ASSAILED THE FRAMING OF ASSES SMENT U/S 144 WHEREIN THE ASSESSEE HAD ALSO AGITATED THAT BEFORE THE PASSING OF THE ORDER, EFFECTIVE OPPORTUNITY WAS NOT GRANTED TO THE ASSESSEE. FOR THE SAID PURPOSES, SPECIFIC GROUND IT WAS SUBMITTED, HAD BEEN RAISED BY THE ASSESSEE BEFORE THE CIT(A). THE SAME IS EXTRACTED HER EUNDER FOR READY REFERENCE: 3.THAT THE LD. ASSESSING OFFICER HAS FURTHER ERRED IN FRAMING ASSESSMENT UNDER SECTION 144 OF THE ACT WITHOUT AFFORDING ANY OPPORT UNITY OF HEARING WHICH IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. ITA 847TO850/CHD/2018 A.Y. 2008-09 TO 2011-12 PAGE 3 OF 4 5. IT IS SEEN THAT THE ISSUE WAS DECIDED BY THE C IT(A) IN THE FOLLOWING MANNER : GROUND NO.3: THIS GROUND RELATES TO THE NON GRANT OF OPPORTUNITY OF HEARING AND CONSEQUENT FRAMING OF ASSESSMENT U/S 144 OF THE ACT. IT IS SEEN FROM THE ASSESSMENT ORDER THAT THE AO HAS CLEARLY MENTIONED IN PARA 2 OF THE ASSESSMENT ORDER AS UNDER: '2. AS THE ASSESSEE DID NOT MAKE THE COMPLIANCE OF THE NOTICE U/S 148 OF THE I.T. ACT, 1961, THEN FURTHER OPPORTUNITIES WERE GIVEN TO THE ASSESSEE BY ISSUING NOTICES/LETTER AS PER FOLLOWING DETAILS: S.R NO. NOTICE/ LETTER NO. DATE OF ISSUE NOTICE/ LETTER REMARKS 1. DCIT(INTL TAX.)/ 20 14- 15/93 16.04.2015 NO COMPLIANCE MADE 2. DCITFLNTL. TAX.)/2014-15/95 16.04.2015 NO COMPLIANCE MADE 3. DOT (INTL. TAX.)/ '2014-15/521 05.06.2015 NO COMPLIANCE MADE 4. DCIT (INTL. TAX.)/ 20 14- 21.07.2015 NO COMPLIANCE MADE 5. DCIT (INTL. TAX.)/ 20 14- 15/3018 30.11.2015 SH. TEJ MOHAN SINGH ADVOCATE ATTENDED THE PROCEEDINGS AND REQUESTED FOR ADJOURNMENT ON 23.12.2015, SH. TEJ MOHAN SINGH ADVOCATE COUNSEL FOR THE ASSESSEE APPEARED AND REQUESTED FOR ADJOURNMENT. ON THE SAID DATE NO INFORMATION WAS FURNISHED AND THE CASE WAS FURTHER ADJOURNED TO 08. 01.2016, 18.01.2016, 29.01.2016, 09.02.2016 & THEN ON 19.02.2016 ON THE REQUEST OF THE COUNSEL FOR THE ASSESSEE. ' THEREFORE IT IS CLEAR THAT THE AO HAS OFFERED SUFFI CIENT OPPORTUNITY TO THE ASSESSEE FOR HEARING AND ONLY ON ACCOUNT OF NON-COM PLIANCE OF THE ASSESSEE, THE ORDER HAS BEEN FRAMED U/S 144. THIS GROUND OF APPEA L IS THEREFORE DISMISSED. 6. ADDRESSING THE SAME, IT WAS SUBMITTED BY THE LD. AR THAT THE EX-PAR TE ORDER WAS PASSED WHEREIN ADMITTEDLY THE ASSESSEE WAS REPRESENTED BY A COUNSEL WHO WAS SEEKING TIME. ACCORDINGLY, IT WAS HIS LIMIT ED PRAYER THAT EVEN BEFORE THE CIT(A), AN EFFECTIVE OPPORTUNITY OF BEING HEA RD WAS NOT GRANTED. IN VIEW THEREOF, IT WAS HIS REQUEST THAT THE IMP UGNED ORDER MAY BE SET ASIDE TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO FIRST DECIDE THE SAID GROUND BEFORE PROCEEDING TO DECIDE THE OTHER ISSUES. INV ITING ATTENTION TO THE IMPUGNED ORDER, IT WAS HIS SUBMISSION THAT ON GROUND NO. 3, NO SPECIFIC FINDING HAS BEEN GIVEN. 7. THE LD. SR.DR CONSIDERING THE REQUEST MADE HAD NO OBJE CTION TO RESTORING THE ISSUE BACK TO THE FILE OF THE CIT(A) . 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MA TERIAL ON RECORD. WE FIND ON CONSIDERATION OF THE FACTUAL MATRIX AS SET OUT HEREIN ABOVE THAT ADMITTEDLY THE SAID GROUND WAS RAISED BEFORE THE CIT(A) AND IT ITA 847TO850/CHD/2018 A.Y. 2008-09 TO 2011-12 PAGE 4 OF 4 HAS NOT BEEN ADDRESSED. WE FIND THAT THE SWEEPING OBSE RVATION CANNOT BE SAID TO BE A DECISION ON MERITS I.E. WHETHER IN THE PECULIA R FACTS AND CIRCUMSTANCES, ORDER U/S 144 WAS REQUIRED TO BE FRAMED OR NOT. ACCORDINGLY, IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, THE IMPUGNED ORDER IS SET ASIDE. THE LD. CIT(A) IS DIRECTED T O PASS AN ORDER FIRST GIVING A FINDING ON GROUND NO. 3 RAISED BEFORE THE SA ID AUTHORITY AND THEREAFTER DE-NOVO PASS AN ORDER ON THE ISSUES ON MER ITS. NEEDLESS TO SAY THAT BEFORE THE PASSING OF THE ORDER, A REASONABLE OPPO RTUNITY OF BEING HEARD SHALL BE GIVEN TO THE ASSESSEE. SAID ORDER WAS PRO NOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. 10. SINCE THE SAID ISSUE REMAINS COMMON IN ALL THE OTHER APP EALS ALSO, ACCORDINGLY, IN THE LIGHT OF SUBMISSIONS OF THE PARTIES BEFOR E THE BENCH, THE SAID ORDERS ARE ALSO RESTORED BACK WITH IDENTICAL DIRECTIO NS TO THE FILE OF THE CIT(A). SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 11. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JAN., 2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA S INGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER % $ (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT -3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR