M/s Anant Overseas Pvt Ltd, New Delhi V. DCIT, New Delhi

ITA 854/DEL/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69495 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-11-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 09-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANURADHA MISRA
• Assessee Lawyers: SURESH ANANTHARAMAN
• Section: 143(3); 132; 139

Judgement Text

ITA NO.854/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER ITA NO.854/DEL/2009 ASSESSMENT YEAR : 2001-02 ANANT OVERSEAS PVT. LTD., 305, 5 TH FLOOR, BHANOT CORNER, PAMPOSH ENCLAVE, GREATER KAILASH, NEW DELHI. PAN : AAACU6386J VS. DCIT, CENTRAL CIRCLE-18, NEW DELHI. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI S URESH ANANTHARAMAN, CA DEPARTMENT BY : SMT. ANURADHA MISRA, CIT, DR ORDER PER A.D. JAIN, JUDICIAL MEMBER: THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2001-02 AGAINST THE ORDER DATED 23.12.2008, PASSED BY THE CIT (A)-III, DE LHI, TAKING THE FOLLOWING GROUNDS:- 1. THE LOWER AUTHORITIES HAVE ERRED IN CONCLUDING TH AT THE GAIN OF RS.31,04,398/- FROM SALE OF EQUITY SHARES ARE TO BE A SSESSED UNDER THE HEAD INCOME FROM BUSINESS. 2. IT IS CONTENDED THAT THE IMPUGNED SUM OF RS.31,04,39 8/- BEING GAINS ARISING FROM SALE OF SHARES IS IN THE NATURE OF SHORT TERM CAPITAL GAINS TAXABLE UNDER THE HEAD CAPITAL GAINS. ITA NO.854/DEL/2009 2 2. THE ASSESSEE HAS FILED AN APPLICATION DATED 11.07.201 3 FOR ADMITTING THE FOLLOWING ADDITIONAL GROUNDS:- 1. THE ASSESSMENT ORDER DATED 20 TH DECEMBER, 2007 PASSED U/S 153C READ WITH SECTION 143(3) OF THE INCOME-TAX ACT, 196 1 (THE ACT) IS WITHOUT JURISDICTION. 2. THE ISSUE OF NOTICE U/S 153C OF THE ACT AND THE CON SEQUENT PROCEEDINGS THERETO ARE INVALID AND NON-EST IN LAW AS NO DOCUMENTS BELONGING TO THE ASSESSEE WERE NOTICED/FOUND/SEIZED IN THE CASE OF THE PERSONS SEARCHED U/S 132 OF THE ACT. 3. THE RETURN OF INCOME FILED U/S 139 (1) OF THE ACT H AVING BEEN PROCESSED/ACCEPTED AS ON THE DATE OF SEARCH, THE ASSESS MENT FRAMED BY INVOKING AND APPLYING THE PROVISIONS OF SECTION 1 53A OF THE ACT IS INVALID AND NON-EST IN LAW. 3. IT HAS BEEN SUBMITTED ON BEHALF OF THE ASSESSEE THAT T HE AFORESAID ADDITIONAL GROUNDS ARE JURISDICTIONAL GROUNDS AND THAT AS SUCH, THEY MAY BE ADMITTED. 4. THE LD. DR, ON THE OTHER HAND, HAS OPPOSED THE AFO RESAID CONTENTION ON BEHALF OF THE ASSESSEE. 5. WE FIND THAT INDEED, THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ARE ALL PERTAINING TO JURISDICTIONAL, GOING TO THE ROOT OF THE MATTER. THEREFORE, IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN NATIONAL THERMAL POWER CO. LTD. VS. CIT, 229 ITR 283 (SC), THESE GROU NDS ARE ADMITTED. NOW, SINCE THESE GROUNDS IMPINGE UPON THE VALIDITY OF THE N OTICE ISSUED U/S 153C OF THE ACT AND THE ASSESSMENT ORDER PASSED IN PURSUANCE TH EREOF, THESE GROUNDS NEED TO BE ADJUDICATED FIRST. ACCORDINGLY, TH E MATTER IS REMITTED TO THE FILE OF THE CIT (A), TO BE DECIDED AFRESH IN ACC ORDANCE WITH THE LAW, ON FIRST DECIDING THE ADDITIONAL GROUNDS NOW RAISED BEFOR E US AND THEN GOING INTO THE GROUNDS RAISED ON MERITS, IF REQUIRED. THE A SSESSEE, NO DOUBT, SHALL BE AFFORDED ADEQUATE OPPORTUNITY OF HEARING. ORDERE D ACCORDINGLY. ITA NO.854/DEL/2009 3 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE ASSESSEES AP PEAL IS TREATED AS ALLOWED. 7. THE ORDER PRONOUNCED IN THE OPEN COURT ON 14.11. 2013. SD/- SD/- [ G.D. AGRAWAL ] [A.D. JAIN] VICE PRESIDENT JUDICIAL MEMBER DATED, 14 TH NOVEMBER, 2013. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.