Sh. Raj Kumar Mangla, Gurgaon V. ITO, New Delhi

ITA 938/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7267 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 08-12-2015
• Assessment Year: 1989-1990
• Appeal Filed On: 18-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KES A NG Y SH ERPA SENIOR
• Assessee Lawyers: RAJ KUMAR MANGLA
• Keywords: Competent authority
• Section: 143(3); 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH F FF F : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SHRI KULDIP SINGH SHRI KULDIP SINGH SHRI KULDIP SINGH SHRI KULDIP SINGH, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO S SS S . .. . 938/DEL/2014 TO 946/DEL/2014 938/DEL/2014 TO 946/DEL/2014 938/DEL/2014 TO 946/DEL/2014 938/DEL/2014 TO 946/DEL/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR S SS S : : : : 1989 1989 1989 1989 - -- - 90 TO 1991 90 TO 1991 90 TO 1991 90 TO 1991 - -- - 92 9292 92 SHRI RAJ KUMAR MANGLA, SHRI RAJ KUMAR MANGLA, SHRI RAJ KUMAR MANGLA, SHRI RAJ KUMAR MANGLA, HOUSE HOUSE HOUSE HOUSE NO.842, SECTOR NO.842, SECTOR NO.842, SECTOR NO.842, SECTOR- -- -15, 15, 15, 15, PART PART PART PART- -- -II, II,II, II, GURGAON GURGAON GURGAON GURGAON 122 001. 122 001. 122 001. 122 001. HARYANA. HARYANA. HARYANA. HARYANA. PAN : AAGPM3200L. PAN : AAGPM3200L. PAN : AAGPM3200L. PAN : AAGPM3200L. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -10(1), 10(1), 10(1), 10(1), NOW WARD NOW WARD NOW WARD NOW WARD- -- -29(3), 29(3), 29(3), 29(3), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJ KUMAR MANGLA, AR. RESPONDENT BY : SMT. KES A NG Y. SH ERPA, SENIOR DR. DATE OF HEARING : 28.12.2015 28.12.2015 28.12.2015 28.12.2015 DATE OF PRONOUNCEMENT : 21.01.2016 21.01.2016 21.01.2016 21.01.2016 ORDER ORDER ORDER ORDER PER BENCH PER BENCH PER BENCH PER BENCH : :: :- -- - THESE APPEALS BY THE ASSESSEE FOR THE ASSESSMENT Y EARS 1989- 90 TO 1991-92 ARE DIRECTED AGAINST THE ORDER OF LEA RNED CIT(A)-IX, NEW DELHI DATED 18 TH DECEMBER, 2013. ITA NO.938/DEL/2014 ITA NO.938/DEL/2014 ITA NO.938/DEL/2014 ITA NO.938/DEL/2014 ASSESSEES APPEAL FOR AY 1989 ASSESSEES APPEAL FOR AY 1989 ASSESSEES APPEAL FOR AY 1989 ASSESSEES APPEAL FOR AY 1989- -- -90: 90: 90: 90:- -- - 2. THE FACTS OF THE CASE ARE THAT FOR THE YEAR UNDE R CONSIDERATION, THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 144 OF TH E ACT ON 31 ST MARCH, 1995 AT THE TOTAL INCOME OF `3,60,000/-. ON APPEAL BY THE ASSESSEE, LEARNED CIT(A), FARIDABAD VIDE HIS ORDER DATED 7 TH OCTOBER, 1996 SET ASIDE THE ASSESSMENT TO THE FILE OF THE AS SESSING OFFICER. IN PURSUANCE TO THE ORDER OF THE CIT(A), THE ASSESSING OFFICER MADE THE ASSESSMENT AFRESH ON 26 TH MARCH, 1999 AT THE TOTAL INCOME OF `4,28,000/-. THAT THE ASSESSEE HAD FILED APPEAL TO THE ITAT AGAINST THE ORDER OF LEARNED CIT(A) DATED 7 TH OCTOBER, 1996. IN THIS APPEAL, THE ITA-938 TO 946/D/2014 2 ASSESSEE HAD CHALLENGED JURISDICTION OF THE ASSESSI NG OFFICER WHO PASSED THE ASSESSMENT ORDER DATED 31 ST MARCH, 1995. THE ITAT, VIDE ORDER DATED 23 RD SEPTEMBER, 2015, ALLOWED THE ASSESSEES APPEAL AND HELD THE ASSESSMENT ORDER DATED 31 ST MARCH, 1995 TO BE WITHOUT JURISDICTION, NULL AND VOID. THE RELEVANT FINDING OF THE ITAT READS AS UNDER:- 30. IT IS NOT IN DISPUTE THAT THE AUTHORITY WHICH CAN DECIDE THE JURISDICTION OF THE ASSESSING OFFICER IS THE CIT/CCIT U/S 124(2) OF THE ACT, WHEN THE QUESTION A ROSE AS TO WHICH AO HAS JURISDICTION TO ASSESS THE PERSON. THE POWER TO TRANSFER A CASE FROM ONE JURISDICTION TO A NOTHER JURISDICTION ALSO LIES WITH CCIT OR THE CIT. IN EX ERCISE THIS POWER, THE LD CIT, HARYANA, ROHTAK IN HIS DATED 22. 03.1995 NO. TECH/MISC/94-95/15498, WHICH HAS BEEN EXTRACTED AT PARA 16 OF THIS ORDER, HAS SPECIFICALLY DIRECTED TH E ACIT, INVESTIGATION, CIRCLE GURGAON TO TRANSFER THE RELEV ANT RECORD TO THE ITO, WARD 10(1) AT NEW DELHI. THE IT O, WARD 10(1), NEW DELHI WAS DIRECTED TO OBTAIN THE RELEVAN T RECORDS FROM THE ACIT, INVESTIGATION, CIRCLE GURGAO N AND TAKE NECESSARY ACTION ON OR BEFORE 31.03.1995. HEN CE, IT CAN BE SEEN THAT THE ACIT, INVESTIGATION, GURGAON W AS DIVESTED OF HIS JURISDICTION OF THIS CASE, ON 22 ND MARCH 1995, BY THE APPROPRIATE AUTHORITY. THE LD ACIT, INVESTI GATING CIRCLE, GURGAON, HAS AFTER THIS DATE, ISSUED NOTICE S AND COMPLETED THE ASSESSMENT. HENCE, THE ISSUE OF NOTI CE U/S 142(1) DATED 27.03.1995 AND CONSEQUENT PASSING OF T HE ORDERS U/S 143(3) ON 31.03.1995, WAS WITHOUT JURIS DICTION. WHEN A CLEAR ORDER, TRANSFERRING THE JURISDICTION, IS PASSED BY A COMPETENT AUTHORITY IN LAW, THE QUESTION OF HO LDING THAT THE ACIT, INVESTIGATION, CIRCLE GURGAON HAS JU RISDICTION DOES NOT ARISE. COMING TO THE ARGUMENT OF THE LD D R, WE FIND THAT NEITHER IN THE ORDER OF THE HONBLE PUNJA B AND HARYANA HIGH COURT NOR THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT HAD STATED THAT THE ASSESSEE SHALL NOT R AISED THE ISSUE OF THE JURISDICTION OF THE ASSESSING OFFI CER, IN THE IMPUGNED ASSESSMENTS. THERE IS NO PROHIBITION IMPO SED ON THE ASSESSEE, NOT TO RAISE THE ISSUE OF JURISDIC TION. IN VIEW OF THE ABOVE, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED ON THE SOLE GROUNDS THAT, THE ACIT, INVESTI GATION CIRCLE, GURGAON HAS NO JURISDICTION OVER THE CASE O F THE ASSESSEE AS ON DATE OF PASSING ORDER U/S 143(3) I.E . ON 31.03.1995. AN ORDER PASSED WITHOUT JURISDICTION I S NULL AND VOID IN THE EYES OF LAW. ITA-938 TO 946/D/2014 3 3. THAT THE PRESENT APPEAL BEFORE US HAD ORIGINATED FROM THE ASSESSMENT ORDER DATED 26 TH MARCH, 1999. THIS ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER IN PURSUANCE TO THE ORDER OF THE CIT(A) DATED 7 TH OCTOBER, 1996. IN THAT ORDER, THE CIT(A) HAD UPHE LD THE VALIDITY OF THE ASSESSMENT ORDER. HOWEVER, IT SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RE-DETERMINAT ION OF INCOME. HOWEVER, THIS ORDER OF LEARNED CIT(A) HAS BEEN MODI FIED BY THE ITAT VIDE ITS ORDER DATED 23 RD SEPTEMBER, 2015. THE ITAT HELD THAT THE ASSESSING OFFICER WHO PASSED THE ORIGINAL ORDER HAD NO JURISDICTION TO PASS SUCH ORDER AND, ACCORDINGLY, DECLARED THE ASSE SSMENT ORDER DATED 31 ST MARCH, 1995 TO BE NULL AND VOID. IN VIEW OF ABOVE FACTS, THE ORDER DATED 26 TH MARCH, 1999 DOES NOT SURVIVE BECAUSE IT WAS PASSED IN PURSUANCE TO THE ORDER OF LEARNED CIT(A) DATED 7 TH OCTOBER, 1996 WHICH HAS NOT BEEN APPROVED BY THE ITAT AND HAS BEEN MODI FIED. IN VIEW OF THE ABOVE, THE ASSESSMENT ORDER DATED 26 TH MARCH, 1999 IS A NULLITY. ACCORDINGLY, WE QUASH THE SAME. 4. SINCE WE HAVE QUASHED THE ASSESSMENT ORDER DATED 26 TH MARCH, 1999, THE OTHER GROUNDS OF APPEAL BY WHICH THE ASSE SSEE HAS DISPUTED THE ADDITIONS MADE BY THE ASSESSING OFFICER AND SUS TAINED BY THE CIT(A) DO NOT SURVIVE FOR ADJUDICATION. ITA NO.939 & 940 ITA NO.939 & 940 ITA NO.939 & 940 ITA NO.939 & 940/DEL/2014 /DEL/2014 /DEL/2014 /DEL/2014 ASSESSEES APPEAL ASSESSEES APPEAL ASSESSEES APPEAL ASSESSEES APPEALS SS S FOR AY 19 FOR AY 19 FOR AY 19 FOR AY 1990 9090 90- -- -91 & 1991 91 & 1991 91 & 1991 91 & 1991- -- - 92 9292 92: :: :- -- - 5. AT THE TIME OF HEARING BEFORE US, BOTH PARTIES F AIRLY ADMITTED THAT THE FACTS IN THESE TWO APPEALS ARE IDENTICAL TO THE FACTS IN THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 1989-90. IN FACT, THE ORDER OF THE LEARNED CIT(A) DATED 7 TH OCTOBER, 1996 IS A COMMON ORDER FOR ASSESSMENT YEAR 1989-90, 90-91 & 91-92. SIMILARLY, THE ORDER OF THE ITAT DATED 23 RD SEPTEMBER, 2015 IS ALSO A COMMON ORDER FOR THESE THREE YEARS. IN VIEW OF THE ABOVE DETAILED FINDING , THE ASSESSMENT ITA-938 TO 946/D/2014 4 ORDERS DATED 26 TH MARCH, 1999 FOR ASSESSMENT YEAR 1990-91 AND 1991- 92 ARE ALSO QUASHED. ITA NO.9 ITA NO.9 ITA NO.9 ITA NO.941 4141 41 TO 946 TO 946 TO 946 TO 946/DEL/2014 /DEL/2014 /DEL/2014 /DEL/2014 ASSESSEES APPEAL FOR AY 1989 ASSESSEES APPEAL FOR AY 1989 ASSESSEES APPEAL FOR AY 1989 ASSESSEES APPEAL FOR AY 1989- -- -90 9090 90 TO 1991 TO 1991 TO 1991 TO 1991- -- - 92 : 92 : 92 : 92 :- -- - 6. ALL THESE APPEALS ARE AGAINST PENALTIES LEVIED B Y THE ASSESSING OFFICER IN PURSUANCE TO THE ASSESSMENT ORDER DATED 26 TH MARCH, 1999. WHILE DECIDING THE ASSESSEES QUANTUM APPEALS IN IT A NO.938 TO 940/DEL/2014 AS ABOVE, WE HAVE ALREADY QUASHED THE ASSESSMENT ORDER. ONCE THE ASSESSMENT ORDER ITSELF HAS BEEN Q UASHED, THE PENALTIES LEVIED IN PURSUANCE TO SUCH ASSESSMENT OR DER CANNOT BE SUSTAINED. ACCORDINGLY, THE SAME ARE ALSO QUASHED. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 21.01.2016 . SD/- SD/- (KULDIP SINGH (KULDIP SINGH (KULDIP SINGH (KULDIP SINGH ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI RAJ KUMAR MANGLA, SHRI RAJ KUMAR MANGLA, SHRI RAJ KUMAR MANGLA, SHRI RAJ KUMAR MANGLA, HOUSE NO.842, SECTOR HOUSE NO.842, SECTOR HOUSE NO.842, SECTOR HOUSE NO.842, SECTOR- -- -15, PART 15, PART 15, PART 15, PART- -- -II, II,II, II, GURGAON GURGAON GURGAON GURGAON 122 001. HARYANA. 122 001. HARYANA. 122 001. HARYANA. 122 001. HARYANA. 2. RESPONDENT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -10(1), 10(1), 10(1), 10(1), NOW WARD NOW WARD NOW WARD NOW WARD- -- -29(3), 29(3), 29(3), 29(3), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR