M/s Pashupati Auto Industries, New Delhi V. ITO, Gurgaon

ITA 900/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9909 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 03-09-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 12-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Section: 142(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F: NEW DELHI BEFORE SHRI D.R. SINGH AND SHRI R.C. SHARMA ITA NO.900/D/09 ASSESSMENT YEAR : 2001-02 M/S PASHUPATI AUTO INDUSTRIES, VS. INCOME-TAX OFF ICER, H.NO.1010, SECTOR-15, PART-II, WARD-4, GURGAON GURGAON PAN/GIR NO.AABFP6187A ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI TARUN KUMAR, ADVOCATE RESPONDENT BY : SHRI H.K. LAL, DR O R D E R PER R.C. SHARMA, AM: THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF CIT(A) DATED 01.12.2008 FOR THE ASSESSMENT YEAR 2001-02 IN THE M ATTER OF EXPARTE ORDER PASSED BY THE ASSESSING OFFICER U/S 144/147 OF THE I.T. ACT. 2. VARIOUS GROUNDS HAVE BEEN RAISED IN THE APPEAL, SOME OF WHICH RELATED TO CIT(A)S ACTION IN CONFIRMING THE EX PARTE ORDER OF ASSESSING OFFICER WITHOUT COMPLYING WITH MANDATORY CONDITIONS OF SECT IONS 147 TO 151 OF THE I.T. ACT. 3. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFU LLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM THE RECORD THAT ASSESSMENT WAS FRAMED BY ASSESSING OFFICER U/S 144/147 OF THE I.T. ACT VIDE ORDER DATED 26.12.2007. IN THE ASSESSMENT ORDER, THERE I S MENTION OF ISSUE OF STATUTORY NOTICE ONLY BUT THERE IS NO MENTION AT AL L IN SERVICE OF NOTICE DURING THE ENTIRE ASSESSMENT PROCEEDINGS. THE ASSESSMENT ORDER WAS SERVED ON THE ASSESSEE BY REGISTERED POST, THEREAFTER REQUEST WAS MADE FOR ALLOWING INSPECTION OF THE FILE DURING WHICH NO EVIDENCE OF EITHER DISPATCH AND SERVICE OF NOTICE WAS FOUND. IT WAS ALLEGED BEFORE THE CIT (A) THAT IN VIEW OF THE INSPECTION OF FILE, THERE IS NO SERVICE OF NOTICE A T ALL. THE NOTICE RECEIVER HAS ALSO NOT IDENTIFIED ON WHOM THE NOTICE HAS BEEN SER VED. THE TIME OF SERVICE OF NOTICE WAS NOT MENTIONED. THERE WAS NO IDENTIFI CATION, SERVICE OF ALLEGED NOTICE. IT WAS ALSO ALLEGED THAT NOTICE U/S 142(1) DATED 13.08.2009/14.08.2009 HAS ALSO BEEN ISSUED ON THE A DDRESS WHICH HAS NOT BEEN GIVEN IN THE RETURN. IT WAS ALSO INDICATED TH AT ADDRESS MENTIONED ON THE NOTICE WAS DIFFERENT FROM THE ADDRESS GIVEN BY THE ASSESSEE IN RETURN. THERE WAS NO EVIDENCE OF DISPATCH OF SERVICE OF NOTICE DA TED 13.08.2009/14.08.2009, EVEN NOTICE DATED 16.11.2007 ISSUED U/S 142(1) ON THE WRONG ADDRESS. IT WAS ALSO ALLEGED THAT COPY O F THE REASONING FOR RE- OPENING WAS NOT PROVIDED TO THE ASSESSEE BEFORE FRA MING THE ASSESSMENT ORDER, NO OBJECTIONS WERE INVITED BY THE ASSESSEE, WHICH IS ESSENTIAL IN TERMS OF VERDICT OF HONBLE SUPREME COURT IN CASE OF GKN DRIVESHAFTS (INDIA) LTD. VS. ITO 259 ITR 19. 4. IN VIEW OF THE ABOVE, THE EX PARTE ASSESSMENT SO FRAMED BY THE ASSESSING OFFICER, WITHOUT PROVIDING ADEQUATE OPPOR TUNITY AND WITHOUT FURNISHING REASONING REGARDING RE-OPENING AND ALLO WING THE ASSESSEE TO FILE OBJECTION BEFORE THE ASSESSING OFFICER, WAS BAD IN LAW. IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THE MATTER BACK T O THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTIONS TO ISSUE REASONS FOR RE -OPENING THE ASSESSMENT AND AFTER INVITING OBJECTION OF THE ASSESSEE, TO FR AME THE ASSESSMENT DE NOVO AFTER PROVIDING DUE OPPORTUNITY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS T REATED AS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE COURT ON 03.09.2009. SD/- SD/- ( D.R. SINGH ) ( R.C. SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 03/09/09 NS : COPY OF THE ORDER IN ITA NO.900/D/09 FORWARDED TO : - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY DY. REGISTRAR,