Shyam Singh, Noida V. ITO, Noida

ITA 940/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3203 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 17-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAROJ KUMAR JHA CA MS BEDOBANI
• Keywords: Period of limitation; Assessment record

Judgement Text

PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH - SMC NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 940/DEL/201 7 ASSESSMENT YEAR : 2011-12 SHYAM SINGH 210/P3, KRISHNA APRA PLAZA, SECTOR-18 NOIDA ATVPS7314K VS. ITO WARD 3(4) NOIDA (APPELLANT) (RESPONDENT) PER BHAVNESH SAINI, JUDICIAL MEMBER ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(A) III KANPUR (CAMP NOIDA, UP)) DATED 17.11 .2016 FOR ASSTT. YEAR 2011-12. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME ON 28 TH JULY, 2011 SHOWING INCOME OF RS. 2,30,020/-. THE C ASE WAS SELECTED FOR SCRUTINY AND THE AO CONSIDERED THE ISSUE OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE AND MAD E ADDITION OF RS. 34,80,000/-. THE ASSESSMENT ORDER WAS PASSED U/S 14 3(3) DATED 25 TH ASSESSEE BY : SHRI SAROJ KUMAR JHA, CA DEPARTMENT BY: MS.BEDOBANI, SR. DR DATE OF HEARING 22/05/2017 DATE OF PRONOUNCEMENT 24 /05/2017 ITA NO. 940/DEL/2017 SHYAM SINGH VS. ITO 2 MARCH, 2014. COPY OF THE DEMAND NOTICE U/S 156 OF T HE I.T. ACT ALSO BEARS THE SAME DATED 25 TH MARCH, 2014. 3. THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND 13 TH AUGUST 2014 WAS MENTIONED AS THE DATE OF SERVICE OF THE RE LEVANT DEMAND NOTICE AND THE ASSESSMENT ORDER. LD. CIT(A) ASKED T HE ASSESSEE TO PRODUCE EVIDENCE IN SUPPORT OF SERVICE OF DEMAND NO TICE / ASSESSMENT ORDER ON HIM ON 13 TH AUGUST, 2014. THE ASSESSEE SUBMITTED THAT SUCH EVIDENCE AS WITH THE AO. THE AO WAS THEREFORE DIREC TED TO BRING ON RECORD THE EVIDENCE SHOWING AS TO ON WHICH DATE THE IMPUGNED ORDER WAS SERVED UPON ASSESSEE. THE AO VIDE HIS LETTER DA TED 19 TH AUGUST, 2016 HAS INFORMED THAT THE ASSESSMENT ORDER U/S 14 3(3) WITH DEMAND NOTICE U/S 156 WAS SERVED UPON ASSESSEE ON 25 TH MARCH, 2013 AND IN SUPPORT OF IT ACKNOWLEDGEMENT SLIP DULY SIGNED BY THE ASSESSEE WAS ENCLOSED. ASSESSEE WAS CONFRONTED WITH THESE FACTS VIDE LETTER OF CIT(A) DATED 15 TH OCTOBER, 2016 THAT ASSESSMENT ORDER AND DEMAND NO TICE HAVE BEEN SERVED UPON HIM ON 25 TH MARCH, 2013, HOWEVER THE ASSESSEE DID NOT FILE ANY RESPONSE. THEREFORE, APPEAL WAS DI SMISSED IN LIMINEE HOLDING IT TO BE TIME BARRED. 4. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL F OR ASSESSEE FILED A COPY OF THE REPLY DATED 7.11.2016 FILED BEFORE LD. CIT(A) IN RESPONSE TO THE LETTER DATED 15 TH OCTOBER, 2016 SUBMITTING THEREIN THAT ASSESSEE HAS ITA NO. 940/DEL/2017 SHYAM SINGH VS. ITO 3 NOT RECEIVED THE ORDER AS STATED BY THE AO AND ONLY CERTIFIED COPY HAS BEEN RECEIVED ON 14 TH AUGUST, 2014. THEREFORE APPEAL IS FILED. LD. COUNSEL FOR ASSESSEE ALSO REFERRED TO ADDITIONAL EV IDENCES FILED AT THE APPELLATE STAGE ON WHICH REMAND REPORT OF THE AO DA TED 16 TH MAY, 2016 HAS BEEN FURNISHED. HE HAS SUBMITTED THAT APPEAL WA S FILED WITHIN THE PERIOD OF LIMITATION. LD. COUNSEL FOR ASSESSEE HAS HOWEVER NOT BEEN ABLE TO EXPLAIN AS TO HOW FORM NO. 35 FILED BEFORE LD. CIT(A) BEARING DATED 3 RD FEBRUARY, 2012 WHEN ASSESSMENT ORDER WAS PASSED ON 25 TH MARCH, 2014. LD. CIT(A) ALSO NOTED THAT APPEAL IS I NSTITUTED ON 25 TH MARCH, 2014 WHICH FACT IS ALSO INCORRECT BECAUSE TH E ASSESSMENT ORDER AND DEMAND NOTICE ARE DATED 25 TH MARCH, 2014. WHEN ASSESSMENT ORDER IS DATED 25 TH MARCH, 2014, THERE IS NO QUESTION OF FILING THE AP PEAL BEFORE LD. CIT(A) ON 25 TH MARCH, 2014 ITSELF. FURTHER LD. CIT(A) NOTED IN TH E IMPUGNED ORDER THAT AS PER REPORT OF ASSESSING OFFI CER THE ASSESSMENT ORDER AND THE DEMAND NOTICE HAVE BEEN SERVED UPON A SSESSEE ON 25 TH MARCH 2013 AND ACKNOWLEDGEMENT SLIP IS SIGNED BY TH E ASSESSEE. NOW THIS FACT AND REPORT OF THE AO APPEARS TO BE INCORR ECT BECAUSE WHEN ASSESSMENT ORDER WAS PASSED ON 25 TH MARCH, 2014, THERE IS NO QUESTION OF SERVICE OF THE SAME UPON ASSESSEE ON 25 TH MARCH, 2013. IT THEREFORE APPEARS TO ME THAT THERE ARE SEVERAL FACTUAL INACCU RACIES HAVE ARISES IN THE MATTER WHICH SHOULD HAVE BEEN DECIDED BY THE LD . CIT(A) AFTER VERIFYING THE FACT FROM THE ASSESSMENT ORDER AND CA LLING THE DEMAND REPORT FROM THE AO. LD. CIT(A) ALSO WRONGLY MENTION ED IN THE IMPUGNED ORDER THAT ASSESSEE DID NOT RESPOND TO THE NOTICE D ATED 15 TH OCTOBER, ITA NO. 940/DEL/2017 SHYAM SINGH VS. ITO 4 2016 WHEN ASSESSEE FILED THE REPLY BEFORE HIM ON 7 TH NOVEMBER, 2016 WHICH BEARS THE RECEIPTS STAMP OF HIS OFFICE. ALL T HESE FACTUAL INACCURACY AND WITHOUT VERIFYING THE FACT FROM ASSESSMENT ORDE R CLEARLY SHOWS THAT LD. CIT(A) WITHOUT PROPER APPLICATION OF MIND AND W ITHOUT PROPERLY GOING THROUGH THE RECORD PASSED THE IMPUGNED ORDER DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE. IN THIS VIEW OF T HE MATTER, I AM OF THE VIEW THAT MATTER REQUIRES RECONSIDERATION AT THE LE VEL OF THE LD. CIT(A). I, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND REST ORE THE APPEAL OF ASSESSEE TO THE FILE OF THE LD. CIT(A) WITH DIRECTI ON TO RE-DECIDE APPEAL OF ASSESSEE BY GIVING REASONABLE SUFFICIENT OPPORTU NITY OF BEING HEARD TO THE ASSESSEE AND THE AO. THE LD. CIT(A) SHALL CALL FOR ASSESSMENT RECORD AND AFTER VERIFYING THE FACTS IN THE LIGHT O F REPLIES OF THE ASSESSEE AND REMAND REPORT OF THE AO RE-DECIDE THE ENTIRE IS SUE AFRESH IN ACCORDANCE WITH LAW. 5. IN THE RESULT APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT. ( BHAVNESH SAINI ) JUDICIAL MEMBER DATED: 24 TH MAY, 2017 *VEENA* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. PRINCIPAL CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR