ASHOK KUMAR AGARWAL, Hindaun City V. ITO, Dausa

MA 102/JPR/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7746 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-07-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 31-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROONIPAL
• Keywords: Bogus purchase; Rectification of order; Reason to believe
• Section: 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM MA NO. 102/JP/2018 ( ARISING OUT OF ITA NO. 111/JP/2014) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2004-05 SHRI ASHOK KUMAR AGRAWAL PROP. M/S GAURAV ENTERPRISES, KHEDLA, DISTRICT- DAUSA. CUKE VS. THE ITO, DAUSA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACMPA 2655 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ROONI PAL (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 17/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 21/07/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS SEEKING RECTIFICATION OF MISTAKE IN THE ORDER DATED 08.03.2018 OF THIS TRIBUNAL. 2. THE ASSESSEEHAS ALLEGED THAT THE TRIBUNAL HAS NO T ADJUDICATED GROUND NO. 1(I) I.E. NO REASONS WERE RECORDED BEFO RE THE ISSUE OF NOTICE U/S 148 OF THE ACT. THE LD. AR OF THE ASSES SEE HAS SUBMITTED MA NO.102/JP/2018 SHRI ASHOK KUMAR AGRWAL VS. ITO 2 THAT THE TRIBUNAL WHILE DECIDING GROUND NO. 1 AS GI VEN FINDING IN PARA 5 OF THE IMPUGNED ORDER WHEREIN THE VALIDITY OF REOPE NING OF THE ASSESSMENT HAS BEEN CONSIDERED AND DECIDED BY THE T RIBUNAL BUT A SPECIFIC OBJECTION REGARDING NON RECORDING OF THE R EASONS BY THE AO BEFORE ISSUING NOTICE U/S 148 OF THE ACT HAS NOT BE EN ADJUDICATED. THE LD. AR HAS REFERRED TO THE NOTE SHEET OF THE AO AND SUBMITTED THAT THE AO HAS NOT MENTIONED ABOUT THE RECORDING OF THE REA SONS PRIOR TO ISSUING NOTICE U/S 148 OF THE ACT. HE HAS ALSO REFE RRED TO SO CALLED REASONS RECORDED BY THE AO AND SUPPLIED TO THE ASSE SSEE AND SUBMITTED THAT THIS CANNOT BE CONSIDERED AS A VALID REASONS T O BELIEF THAT THE INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT. TH E LD. AR HAS FURTHER SUBMITTED THAT EVEN THE ASSESSING OFFICER H AS NOT DISPOSED OFF THE OBJECTION BY A SPEAKING ORDER AND THE SAME HAS NOT BEEN COMMUNICATED TO THE ASSESSEE. THEREFORE, THE REASSE SSMENT ORDER PASSED BY THE AO IS NOT VALID AND LIABLE TO BE QUAS HED. THE TRIBUNAL HAS NOT CONSIDERED THIS OBJECTION OF THE ASSESSEE W HILE DECIDING THE ISSUE ACCORDINGLY, THE LD. AR HAS SUBMITTED THAT TH E IMPUGNED ORDER OF THE TRIBUNAL MAY BE RECALLED FOR ADJUDICATION OF GR OUND NO. 1 AFRESH. 3. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE ISSUE WHICH WAS AGITATED DURING THE COURSE OF HEARING MA NO.102/JP/2018 SHRI ASHOK KUMAR AGRWAL VS. ITO 3 AS STATED IN PARA 3 OF THE IMPUGNED ORDER WHEREIN A LL THE SUBMISSIONS AND CASE LAW RELIED UPON BY THE LD. AR HAS BEEN REC ORDED. THE LD. DR HAS SUBMITTED THAT ONCE THE TRIBUNAL HAS DECIDED TH E ISSUE WHICH WAS RAISED DURING THE COURSE OF HEARING THEN THERE IS N O MISTAKE APPARENT ON RECORD FOR NO ADJUDICATING OF OBJECTION WHICH WA S NOT RAISED OR AGITATED DURING THE COURSE OF HEARING OF THE APPEAL . THE LD. DR HAS OBJECTED TO THE MISC. APPLICATION AND SUBMITTED THA T THERE IS NO APPARENT MISTAKE IN THE IMPUGNED ORDER OF THE TRIBU NAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE TRIBUNAL IN THE IMPUGNED OR DER HAS REPRODUCED THE REVISED GROUNDS RAISED BY THE ASSESSEE. HOWEVER , THE ARGUMENTS ADVANCE BY THE LD. AR OF THE ASSESSEE DURING THE CO URSE OF HEARING WERE ONLY IN RESPECT OF THE VALIDITY OF REOPENING O F THE ASSESSMENT AND PARTICULARLY ON THE POINT THAT THERE WAS NO REASON TO BELIEF THAT THE INCOME ASSESSABLE TO TAX ON ACCOUNT OF BOGUS PURCHA SE HAS ESCAPED ASSESSMENT. THE ASSESSEE THUS AGITATED THE ISSUE OF VALIDITY OF REOPENING ON THE PREMISES THAT THE REASONS RECORDED BY THE AO DO NOT REVEAL ANY INCOME ASSESSABLE TO TAX HAS ESCAPED ASS ESSMENT. WE FURTHER, NOTE THAT EVEN THIS OBJECTION OF NOT RECOR DING OF REASONS FOR REOPENING OF THE ASSESSMENT WERE NOT RAISED BEFORE THE LD. CIT(A) AND MA NO.102/JP/2018 SHRI ASHOK KUMAR AGRWAL VS. ITO 4 CONSEQUENTLY THERE WAS NO FINDING OF THE LD. CIT(A) ON THIS PARTICULAR OBJECTION. THE GROUNDS RAISED BY THE ASSESSEE REGAR DING THE VALIDITY OF INITIATION OF PROCEEDINGS U/S 147 OF THE ACT IS REP RODUCED AT PAGE 2 OF THE ORDER OF LD. CIT(A) AS UNDER:- 1. THAT, THE INITIATION OF THE PROCEEDINGS U/S 147 IS WITHOUT JURISDICTION, VOID, ILLEGAL, AS THE REASONS RECORDE D & SERVED UPON THE APPELLANT, ARE IN NO CASE VALID REASONS AND DO NOT INDICATE ANY ESCAPEMENT OF INCOME LIABLE TO TAX. THEREFORE, THE INITIATION OF PROCEEDINGS U/S 147, ISSUANCE OF NOTICE U/S 148 IN CONSEQUENCE THEREOF, CONTINUATION OF THE PROCEEDING S FOR ASSESSMENT, ULTIMATELY RESULTING INTO PASSING THE O RDER OF ASSESSMENT DISPUTED IN APPEAL, ARE ALL WITHOUT JURI SDICTION, VOID, ILLEGAL, AND ALL THE SAME ARE LIABLE TO BE QUASHED ON THIS GROUND ALONE, WHICH MAY VERY KINDLY BE QUASHED . THUS, IN THIS GROUND THE ASSESSEE HAS DULY ACKNOWLE DGED REASONS AS RECORDED AND SERVED UPON THE ASSESSEE. ONCE THE REA SONS RECORDED AND SERVED UPON THE ASSESSEE ARE NOT IN DISPUTED THEN W HETHER THESE ARE VALID REASONS FOR INITIATION OF PROCEEDINGS U/S 147 /148 OF THE ACT A SEPARATE QUESTION AND DOES NOT INVOLVE THE QUESTION OF NOT RECORDING OF REASONS BY THE AO. HENCE, THIS ISSUE DOES NOT EMANA TE FROM THE IMPUGNED ORDER BY THE LD. CIT(A). WE FURTHER NOTE T HAT THE ASSESSEE MA NO.102/JP/2018 SHRI ASHOK KUMAR AGRWAL VS. ITO 5 FILED THE WRITTEN SYNOPSIS DATED 22.05.2017 AND STA TED REGARDING GROUND NO. 1 TO 3 AS UNDER:- IN THE FIRST 3 GROUNDS OF APPEAL, LEGALITY OF THE PROCEEDINGS U/S 147 HAS BEEN CHALLENGED INTER-ALIA CONTENDING THAT THE OBJECTIONS WERE NOT SETTLED BY THE LD. ASSESSING OFFICER BY A SPEAKING ORDER NOR PROPER AND REASONABLE OPPORTUNITY WAS ALLOWED B EFORE COMPLETING THE ASSESSMENT. THE CIT(A) HAS DEALT WI TH THESE POINTS IN PARA 4.1 TO PARA 4.8 OF THE APPELLATE OR DER ON PAGES 4 TO 9. IT IS CLEAR FROM THE WRITTEN SUBMISSIONS OF THE ASS ESSEE THAT THE ASSESSEE CHALLENGED THE ACTION OF THE AO THAT THE O BJECTIONS WERE NOT SETTLED BY THE AO BY A SPEAKING ORDER NOR REASONABL E OPPORTUNITY WAS GIVEN TO THE ASSESSEE BEFORE PASSING THE ASSESSMENT ORDER. THEREFORE, NO SUCH OBJECTION WAS RAISED IN THESE WRITTEN SUBMI SSIONS REGARDING THE REASONS NOT RECORDED BY THE AO. FURTHER THE ASSESSE E AGAIN FILED WRITTEN SUBMISSIONS DATED 23.11.2017 WHEREIN THE AS SESSEE HAS AGAIN SUBMITTED AS UNDER:- IT IS SUBMITTED THAT FIRSTLY THE LETTER OF THE ITO AS ABOVE CAN NOT BE TAKEN AS 'REASON TO BELIEVE' THAT THE INCOME HAD ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 148 OF THE ACT. PAGE 2 TO 3/PB., GIVES THE DATEWISE DETAILS OF THE HAPPENI NG ; IN A CHRONOLOGICAL ORDER BEGINNING FROM 31-3-2006 TO 11- 2-2006 AND NOW-HERE THE ITO HAD RECORDED ANY REASONS TO BELIEV E THAT INCOME OF THE APPELLANT HAD ESCAPED ASSTT. AND THER EFORE, THE REQUIREMENTS OF SECTION 148 HAVE NOT AT ALL BEEN CO MPLIED WITH MA NO.102/JP/2018 SHRI ASHOK KUMAR AGRWAL VS. ITO 6 AND AS SUCH, THE ACTION OF THE ID. A.O. IS ABSOLUTE LY ILLEGAL, VOID AND BAD IN LAW AND CONSEQUENTLY THE ASSTT. MADE BY HIM IS WITHOUT JURISDICTION BEING BAD-IN-LAW. DETAILED SUB MISSION IN MY WRITTEN SYNOPSISPAGES 2-6 MAY VERY KINDLY BE PERUS ED AND CONSIDERED. AT THE COST OF REPETITION, IT IS SUBMIT TED THAT NEITHER THE NAME OF PARTY FROM WHOM ALLEGED BOGUS PURCHASES OF RS. 210000/-WERE MADE NOR THE BASIS (MATERIAL) OF TREAT ING THE PURCHASES AS BOGUS ARE INDICATED. I HAD RELIED UPON THE FOLLOWING DECISIONS WHEREIN IT HAS BEEN HELD THAT REQUIREMENT S OF SECTION 147 HAVE REMAINED UNFULFILLED AND THEREFORE, THE A. O. COULD NOT ASSUME JURISDICTION U/S 147 OF THE ACT. IN THESE WRITTEN SUBMISSIONS ALSO THE ASSESSEE HAS CHALLENGED THE REASONS RECORDED BY THE AO BUT NOWHERE DISPUTED REC ORDING OF THE REASONS. THEREFORE, IN THESE FACTS AND CIRCUMSTANCE S OF THE CASE WHEN THE ASSESSEE HAS NEVER DISPUTED THE REASONS RECORDE D BY THE AO EITHER BEFORE THE AO OR BEFORE THE LD. CIT(A) OR EVEN IN T HE ORIGINAL GROUNDS RAISED BEFORE THE TRIBUNAL. THE TRIBUNAL DECIDED TH E ISSUE OF VALIDITY OF REOPENING OF THE ASSESSMENT AS AGITATED DURING THE COURSE OF HEARING. IN THE ABSENCE OF ANY SUCH OBJECTION RAISED BY THE ASSESSEE DURING THE COURSE OF HEARING THE OBJECTIONS INCLUDED IN THE RE VISED GROUNDS OF APPEAL WHICH IS NOT ARISING FROM THE IMPUGNED ORDER OF THE LD. CIT(A) IS OTHERWISE NON-EST GROUNDS. ACCORDINGLY, WE DO NOT F IND ANY APPARENT MISTAKE IN THE IMPUGNED ORDER OF THE TRIBUNAL. MA NO.102/JP/2018 SHRI ASHOK KUMAR AGRWAL VS. ITO 7 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/07/2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/07/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ASHOK KUMAR AGRAWAL, DAUSA. 2. IZR;FKHZ@ THE RESPONDENT- ITO, DAUSA. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {MA NO. 102/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR