Munish Chander Khurana, New Delhi V. ITO, Ward-41(3), New Delhi

ITA 9687/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3355 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 23-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Corroborative evidences; Set aside
• Section: 251; 147; 148

Judgement Text

1 | P A GE THE INCOME TAX APPELLATE TRIBUNAL DELHI SMC-2 BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.9687/DEL/2019 ASSESSMENT YEAR : 2011-12 MUNISH CHANDER KHURANA, A-4/440, PASCHIM VIHAR, NEW DELHI-110063 PAN-AJYPK5166E VS ITO, WARD-41(3), NEW DELHI. APPELLANT RESPONDENT APPELLANT BY SH. LALIT MOHAN, CA RESPONDENT BY SH. R.K.GUPTA, SR.DR DATE OF HEARING 25.05.2021 DATE OF PRONOUNCEMENT 1 4 .06.2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2011-12 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-1 4, NEW DELHI DATED 28.10.2019. THE ASSESSEE HAS RAISED FOLLOWING GROU NDS OF APPEAL:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)-14, NEW DELHI HAS ERRED BOTH IN LAW AND, ON FACTS IN DIRECT ING THE LEARNED ASSESSING OFFICER U/S 251 OF THE ACT TO ISSUE NOTIC E U/S 148 OF THE ACT IN ASSESSMENT YEAR 2011-12 AFTER FOLLOWING THE PROCED URE LAID DOWN U/S 147, 148 AND 151 OF THE ACT. 1.1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS FAILED TO APPRECIATE THAT ONCE THE INITIATION OF PROCEEDINGS U/S 147 OF THE ACT AND ASSESSMENT FRAMED U/S 147/143(3) OF THE ACT WAS INV ALID NO DIRECTION COULD BE ISSUED AND AS SUCH THE AFORESAID IMPUGNED ORDER IS ILLEGAL, INVALID AND WITHOUT JURISDICTION FOR THE INSTANT AS SESSMENT YEAR. 2 | P A GE 2. THE ONLY EFFECTIVE GROUND RAISED IN THIS APPEAL BY THE ASSESSEE IS AGAINST THE DIRECTION OF LD.CIT(A) ISSUED NOTICE TO THE ASS ESSING OFFICER U/S 148 OF THE INCOME TAX ACT, 1961 (THE ACT) FOR ASSESSMENT YEA R 2011-12 AFTER FOLLOWING THE PROCEDURE LAID DOWN U/S 147 & 148 OF THE ACT. 3. FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE CASE OF THE ASSESSEE WAS RE-OPENED FOR ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE ACT DATED 26.08.2018. IN RESPONSE THERETO, THE ASSESSEE FILE D RETURN OF INCOME DECLARING TOTAL INCOME OF RS.5,62,070/-. THE GROUND FOR RE-O PENING OF ASSESSMENT WAS CASH TRANSACTION EXCEEDING RS.10,00,000/-. THEREAF TER, THE ASSESSING OFFICER PROCEEDED TO MAKE ASSESSMENT BY OBSERVING THAT THE ASSESSEE HAD DEPOSITED AN AMOUNT OF RS.42,85,700/- IN SAVING BANK ACCOUNT NO.10005845133 WITH STATE BANK OF PATIALA (NOW STATE BANK OF INDIA), BR ANCH-B-2/2, PASCHIM VIHAR, NEW DELHI. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE FAILED TO PROVIDE JUSTIFICATION BY SUPPORTING EVIDENCE AND HE MADE AD DITION OF RS.42,85,700/- THEREBY, ASSESSED INCOME AT RS48,47,770/- AGAINST T HE RETURNED INCOME OF RS.5,62,070/-. 4. AGGRIEVED AGAINST THIS, THE ASSESSEE PREFERRED A PPEAL BEFORE LD.CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS, ALLOWED THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES ON THE GROUND THAT THE NOTICE ISSUED U/S 148 OF THE ACT WAS BAD IN LAW AS THE REQUISITE PRIOR SANCTION OF LD. PR.CIT WAS FOUND TO BE INVALID. HOWEVER, LD.CIT(A) DIRECTED THE ASSESSING OFFICER TO ISSUE NOTICE U/S 148 OF THE ACT FOR ASSESSMENT YEAR UNDER CONSIDERAT ION AFTER FOLLOWING THE DUE PROCEDURE LAID DOWN U/S 147, 148 AND 151 OF THE ACT . 3 | P A GE 5. AGGRIEVED AGAINST THIS DIRECTION, THE ASSESSEE I S IN APPEAL BEFORE THIS TRIBUNAL. 6. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE LD.CIT(A) EXCEEDED ITS JURISDICTION BY DIRECTING THE ASSESSIN G OFFICER TO ISSUE NOTICE U/S 148 OF THE ACT FOR ASSESSMENT YEAR 2011-12 AFTER FA ILING PROCEDURE LAID DOWN U/S 147, 148 AND 151 OF THE ACT. HE SUBMITTED THAT LD.CIT(A) HAS FAILED TO APPRECIATE THAT ONCE THE INITIATION OF PROCEEDINGS U/S 147 OF THE ACT AND ASSESSMENT U/S 147/143 OF THE ACT WAS HELD TO BE IN VALID. NO DIRECTION COULD BE ISSUED AND TO THAT EXTENT, THE IMPUGNED ORDER IS ILLEGAL, INVALID AND WITHOUT JURISDICTION. 7. PER CONTRA, SH. R.K.GUPTA, LD. SR. DR OPPOSED T HESE SUBMISSIONS AND SUPPORTED THE ORDER OF LD.CIT(A). LD. SR. DR SUBM ITTED THAT DIRECTION SO ISSUED WAS WITHIN THE POWERS CONFERRED BY LD.CIT(A) U/S 251 OF THE ACT. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT BARE READIN G OF THE PROVISION COULD MAKE IT CLEAR THAT THERE IS NO SUCH POWER CONFERRED BY THE ACT. 8. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. THE MOOT QUESTION FOR DETERMINATION IS W HETHER LD.CIT(A) WAS WITHIN POWER TO DIRECT THE ASSESSING OFFICER FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT. FOR THE SAKE OF CLARITY, SECTION 251 OF THE ACT IS REPRODUCED AS UNDER:- (1) IN DISPOSING OF AN APPEAL, THE COMMISSIONER ( APPEALS) SHALL HAVE THE FOLLOWING POWERS (A) IN AN APPEAL AGAINST AN ORDER OF ASSESSMENT, HE MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT; (AA) IN AN APPEAL AGAINST THE ORDER OF ASSESSMENT I N RESPECT OF WHICH THE PROCEEDING BEFORE THE SETTLEMENT COMMISSI ON ABATES 4 | P A GE UNDER SECTION 245HA, HE MAY, AFTER TAKING INTO CONS IDERATION ALL THE MATERIAL AND OTHER INFORMATION PRODUCED BY THE ASSE SSEE BEFORE, OR THE RESULTS OF THE INQUIRY HELD OR EVIDENCE RECORDE D BY, THE SETTLEMENT COMMISSION, IN THE COURSE OF THE PROCEED ING BEFORE IT AND SUCH OTHER MATERIAL AS MAY BE BROUGHT ON HIS RECORD , CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT; (B) IN AN APPEAL AGAINST AN ORDER IMPOSING A PENALT Y, HE MAY CONFIRM OR CANCEL SUCH ORDER OR VARY IT SO AS EITHE R TO ENHANCE OR TO REDUCE THE PENALTY; (C) IN ANY OTHER CASE, HE MAY PASS SUCH ORDERS IN T HE APPEAL AS HE THINKS FIT. (2) THE COMMISSIONER (APPEALS) SHALL NOT ENHANCE AN ASSESSMENT OR A PENALTY OR REDUCE THE AMOUNT OF REFUND UNLESS THE A PPELLANT HAS HAD A REASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST SUC H ENHANCEMENT OR REDUCTION. EXPLANATION.IN DISPOSING OF AN APPEAL, THE COMMISS IONER (APPEALS) MAY CONSIDER AND DECIDE ANY MATTER ARISING OUT OF THE P ROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED, NOTWITHSTANDING THAT SUCH MATTER WAS NOT RAISED BEFORE THE COMMISSIONER (APPEALS) BY THE APPELLANT. 9. FROM THE ABOVE, IT IS CLEAR THAT LD.CIT(A) IS EM POWERED TO CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. IN THE P RESENT CASE, LD.CIT(A) ANNULLED THE ASSESSMENT AND FURTHER DIRECTED TO IS SUE NOTICE U/S 148 OF THE ACT. NO SUCH POWER HAS BEEN GRANTED BY THE ACT, T HEREFORE, THE IMPUGNED DIRECTION OF LD.CIT(A) IN EXCESS OF THE JURISDICTIO N CONFERRED BY SECTION 251 OF THE ACT, HENCE THE SAME IS SET ASIDE. THUS, GROUND S RAISED BY THE ASSESSEE IN THIS APPEAL ARE ALLOWED. 5 | P A GE 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIR TUAL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 14 TH JUNE, 2021. SD/- (KUL BHARAT) JUDICIAL MEMBER * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI