Mrs. Saroj Jain, Delhi V. ITO, New Delhi

ITA 906/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4072 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 1999-2000
• Appeal Filed On: 04-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHORE B
• Keywords: Income from undisclosed sources; Principle of natural justice
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : G NEW DELHI) BEFORE SHRI SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.906/DEL./2010 (ASSESSMENT YEAR : 1999-2000) MRS. SAROJ JAIN, VS. ITO, WARD 29(3), PROP. SHREE MAHAVIR TEXTILES, NEW DELHI. 1 ST FLOOR, 6, MAHAVIR BAZAR, KATRA SHANSHAHI, CHANDNI CHOWK, DELHI-11006. (PAN/GIR NO.AEGPJ2672H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIVEK VERMA, ADV. REVENUE BY : SHRI KISHORE B, SR.DR ORDER PER A.D. JAIN, JM THIS IS ASSESSEES APPEAL FOR AY 1999-2000 RAISING THE FOLLOWING NINE GROUNDS: 1. THE ORDER OF THE CIT(A) IS BAD IN LAW AND ON FACTS. 2. THAT THE SERVICE OF NOTICE UNDER SECTION 148 WAS BA D AND INVALID. 3. THAT THE NOTICE UNDER SECTION 148 WAS NEITHER SERVE D ON THE ASSESSEE OR ON ANYBODY AUTHORIZED BY THE ASSESSEE. 4. THAT THE CIT(A), SIMPLY NEGATED THE ARGUMENTS ON TH E ISSUE OF SUBSTITUTED SERVICE. 5. THAT THE CIT(A), DID NOT GIVE A LEGAL THOUGHT ON TH E ISSUE OF INSPECTORS REPORT ON SERVICE THROUGH AFFIXTURE. 6. THAT THE ORDER PASSED BY THE AO IS NON-EST AND VOID AB INITIO ON ACCOUNT OF FAILURE TO PROVIDE NATURAL JUSTICE TO THE APPELL ANT ASSESSEE. 7. THAT THE CIT(A) FAILED TO ADJUDICATE ON THE ISSUE O F NON ISSUE/SERVICE OF NOTICE UNDER SECTION 143(2), THOUGH IT WAS TAKEN UP DURING THE ARGUMENTS AND WRITTEN SUBMISSIONS. 8. THAT THE AO ERRED IN COMING TO THE CONCLUSION THAT THE AMOUNT OF RS.5,00,000/- ENTERED IN THE BANK OF THE ASSESSEE I S ASSESSEES INCOME FROM UNDISCLOSED SOURCES. ITA NO.906/DEL./2010 (AY : 1999-2000) 2 9. THAT THE AO ERRED IN NOT GIVING ANY CREDENCE TO THE SUBMISSIONS MADE AND PAPERS FILED BEFORE HIM ON THE ABOVE ISSUE. 2. GROUND NO.7 OF THE ASSESSEE STATES THAT THE CIT( A) HAS FAILED TO ADJUDICATE THE ISSUE OF SERVICE OF NOTICE U/S 143(2) OF THE ACT, T HOUGH THE SAME WAS TAKEN UP DURING THE ARGUMENTS AND IN THE WRITTEN SUBMISSIONS. 3. THIS GRIEVANCE OF THE ASSESSEE IS A PRIMARILY A LEGAL ISSUE WHICH GOES TO THE ROOT OF THE MATTER. WE, THEREFORE, TAKE UP THIS ISSUE FIRS T. 4. THE ASSESSEE HAS FILED BEFORE US, INTER ALIA, A COPY OF THE WRITTEN SUBMISSION FILED BEFORE THE CIT(A) (AT PAGES 1-6 OF THE PAPER BOOK). PARA 16 AT PAGE 4 READS AS FOLLOWS: IT IS ALSO IMPORTANT TO CONSIDER THAT HOW THE AO D ISCOVER THE ASSESSEES ADDRESS, WHERE NOTICE UNDER SECTION 142(1) WAS SENT, WHICH W AS DULY RECEIVED, HOWEVER, NO NOTICE UNDER SECTION 143(2), SEEMS TO HAVE BEEN ISSUED/SERVED FROM THE ASSESSMENT ORDER. 5. EVIDENTLY, THEREFORE, THE ASSESSEE DID RAISE BEF ORE THE CIT(A), THE QUESTION OF ISSUANCE AND SERVICE OF NOTICE U/S 143(2) OF THE AC T. A PERUSAL OF THE ORDER UNDER APPEAL, HOWEVER, SHOWS THAT THIS ISSUE HAS NEITHER BEEN DEA LT WITH, NOR DISPOSED OF BY THE CIT(A). THE QUESTION OF ISSUANCE AND SERVICE OF NOTICE U/S 143(2) OF THE ACT IS A BASIC ISSUE, GOING TO THE VERY ROOT OF THE ASSESSMENT. ALL ELSE DEPEN DS ON THE DECISION OF THIS ISSUE. THEREFORE, SUCH QUESTION, OBVIOUSLY, REQUIRES ADJUD ICATION BY THE CIT(A). 6. IN THE INTEREST OF JUSTICE, THEREFORE, WE DEEM I T APPROPRIATE UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, TO REMIT THIS MATTER TO THE FILE OF THE CIT(A) FOR DECISION IN ACCORDANCE WITH LAW. THE CIT(A) SHALL ADJUDICATE O N THE AFORESAID ISSUE OF ISSUANCE AND SERVICE OF NOTICE U/S 143(2) OF THE ACT AND SHALL R E-DECIDE THE OTHER GROUNDS ON THE BASIS OF THE DECISION THEREON. 7. IN VIEW OF THE ABOVE, AT THIS STAGE, THE OTHER G ROUNDS TAKEN BY THE ASSESSEE ARE NOT BEING DEALT WITH. 8. CONSEQUENTLY, FOR STATISTICAL PURPOSES, THE APPE AL OF THE ASSESSEE IS TREATED AS ALLOWED. ITA NO.906/DEL./2010 (AY : 1999-2000) 3 9. ORDER PRONOUNCED IN OPEN COURT ON THE DATE OF HE ARING ON 05.05.2010. SD/- SD/- (A.K. GARODIA) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 05.05.2010. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXV, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR/ITAT