M/s. KTG Exports, New Delhi V. ITO, New Delhi

ITA 995/DEL/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0231 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 30-06-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 19-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Keywords: Income from undisclosed sources; Opportunity of being heard
• Section: 142(1); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 995 /DEL/201 4 (ASSESSMENT YEAR - 200 3 - 04 ) KTG EXPORTS, J - 2/13, RAJOURI GARDEN, NEW DELHI - 110027. PAN - AASPS9252Q ( APPELLANT) VS ITO, WARD - 26(1), NEW DELHI (RESPONDENT ) APPELLANT BY NONE RESPONDENT BY SH.GAGAN SOOD, SR.DR ORDER BY THE PRESENT APPEAL THE ASSESSEE ASSAILS THE CORRECTNESS OF THE ORDER DATED 18.11 .2013 OF CIT(A) - XVII, NEW DELHI ON VARIOUS GROUNDS INCLUDING GROUND NO S . - 3 & 4 WHICH READ AS UNDER: - 3. WHETHER ON THE FACT & IN THE CIRCUMSTANCES OF THE CASE THE LD. LOWER AUTHORITIES HAS GROSSLY ERRED IN LAW & ON FACTS IN PASSING & CONFIRMING THE ORDER U/S 144/147 OF THE ACT BY IGNORING THE FACTS THAT NO NOTICE EITHER U/S 148 OR 143(2) OR U/S 142(1) WAS SERVED UPON THE ASSESSEE. 4.WHETHER ON THE FACT & IN THE CIRCUMSTANCES OF THE CASE THE LD. LOWER AUTHORITIES HAS GROSSLY ERRED IN LAW & ON FACTS IN PASSING & CONFIRMING THE ORDER U/S 144/147 OF THE ACT BY WITHOUT GIVING THE COPY OF REASONS RECORDED FOR REOPENING THE ASSESSMENT. 2. AT THE TIME OF HEARING, AN ADJOURNMENT PETITION WAS MOVED ON BEHALF OF THE ASSESSEE HOWEVER AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE ARGUMENTS OF THE LD. SR. DR , IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX - PARTE QU A THE ASSESSEE APPELLANT ON MERIT S . 3. THE RELEVANT FACTS OF THE CASE AS APPEARING IN THE ASSESSMENT ORDER ARE THAT AS PER CERTAIN INFORMATION RECEIVED FROM THE D I (INVESTIGATION) . THE AO OBSERVED THAT THE ASSESSEE, M/S KTG EXPORTS , J - 2/13, RAJOURI GARDE N, NEW DELHI HAD RECEIVED THE AMOUNT OF RS.6,50,000/ - THROUGH CHEQUE DATED 14.02.2003 ISSUED DATE OF HEARING 30 .0 6 .2015 DATE OF PRONOUNCEMENT 22 .0 7 .2015 I.T.A .NO. - 995/ DEL/2014 PAGE 2 OF 3 BY RAHUL FINLEASE (P.) LTD. FROM BANK A/C NO. - 24619,, SBBJ, NRR, NEW DELHI. THE SAID CHEQUE WAS FOUND CREDITED IN THE BANK A/C NO. - 110024087 WITH PUNJAB NATIONAL BANK, RAJOURI GARDEN, NEW DELHI. ON THE BASIS OF THIS NOTICE U/S 148 WAS ISSUED. SUBSEQUENTLY NOTICE U/S 142(1) W AS ALSO ISSUED. IN VIEW OF NON - COMPLIANCE ON THE PART OF THE ASSESSEE, ORDER U/S 144/147 WAS PASSED MAKING AN ADDITION OF THE SAID AMOUNT HO LDING THAT THE ASSESSEE HAD GIVEN ITS UNACCOUNTED INCOME TO M/S RAHUL FINLEASE (P.) LTD. AND IN RETURN THE SAID CONCERN ISSUED CHEQUE TO THE ASSESSEE AND IT WAS A CASE OF ENTRY PROVIDER BY WHICH MODE BLACK MONEY OF THE ASSESSEE WAS CONVERTED AS WHITE MONEY. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE CONTENDED THAT NOTICE U/S 148 WAS NEVER SERVED UPON THE ASSESSEE APART FROM THAT VARIOUS OTHER ARGUMENTS WERE ALSO RAISED . A PERUSAL O F PARA 7.2 OF THE IMPUGNED ORDER SHOWS THAT THE CIT(A) CONCLUDED THAT THE RECORD SHOWS THAT THE SAID NOTICE WAS ISSUED AND SERVED UPON THE ASSESSEE . I N THE DISCUSSION BEFORE A RRIVING AT THE SAID DECISION, IT IS SEEN THAT THE CIT(A ) HAS ONLY REFER RED TO TH E LEGAL POSITION ON THE ISSUE HOWEVER THE FACTS ON THE BASIS OF WHICH THE CONCLUSION ARRIVED AT IS NOT ADDRESSED. THE LD. SR. DR WAS REQUIRED TO ADDRESS THE ISSUE AS TO HOW AND WHEN THE NOTICE WAS SERVED AND BY WHAT SPECIFIC MODE ON WHICH DATE ALONGWITH A COPY OF THE REASONS WH E R E I S S U A N C E O F N O T I C E I T S E L F IS DISPUTED BY THE ASSESSEE . T H E L D . S R . D R S T A T E D H I S I N A B I L I T Y TO RESPOND. IN THE ABSENCE OF ANY DISCUSSION ON RELEVANT FACTS, IT WAS HIS SUBMISSION THAT THE ISSUE MAY BE RESTORED TO THE AO CONSIDERING THE FACTS THAT THE ASSESSMENT IS MADE U/S 144 . 4. IN THE LIGHT OF SUBMISSIONS ADVANCED AND CONSIDERING THE MATERIAL AVAILABLE ON RECORD, IT IS CONSIDERED APPROPRIATE TO ACCEPT THE REQUEST OF THE LD. SR. DR AS THE MODE AND METHOD OF SERVICE OF NOTICE U/S 148 UPON THE ASSESSEE CAN BE ADD RESSED ONLY BY THE AO AS CHALLENGE IS POSED TO THE PROCEEDINGS ON THIS GROUND BY THE ASSESSEE. KEEPING IN VIEW THE FACT THAT THE ASSESSMENT IS PASSED U/S 144 , I T WOULD BE APPROPRIATE TO RESTORE THE ISSUE BACK TO T H E FILE OF THE AO. IN VIEW OF THE ABOVE, THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE FILE OF THE AO AFRESH WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD . I.T.A .NO. - 995/ DEL/2014 PAGE 3 OF 3 5 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN C OURT ON 2 2 N D OF JULY , 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 2 2 /07 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI