Rajesh Sablok, Agra v. I.T.O.-1(3), Agra

CO 68/AGR/2010 | 2002-2003
Pronouncement Date: 06-07-2011 | Result: Dismissed

Appeal Details

RSA Number 6820323 RSA 2010
Assessee PAN ALQPS0517F
Bench Agra
Appeal Number CO 68/AGR/2010
Duration Of Justice 10 month(s) 9 day(s)
Appellant Rajesh Sablok, Agra
Respondent I.T.O.-1(3), Agra
Appeal Type Cross Objection
Pronouncement Date 06-07-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 06-07-2011
Date Of Final Hearing 06-07-2011
Next Hearing Date 06-07-2011
Assessment Year 2002-2003
Appeal Filed On 27-08-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO.319/AGR/2010 ASST. YEAR: 2002-03 INCOME TAX OFFICER- 1(3) VS. SHRI RAJESH KUMAR S ABLOK AGRA. 56 PRATIBHA ENCLAVE DAYALBAGH AGRA. (PAN : ALQPS 0517 F) C.O. NO.68/AGR/2010 (IN ITA NO.319/AGR/2010) ASST. YEAR: 2002-03 SHRI RAJESH KUMAR SABLOK VS. INCOME TAX OFFICER - 1(3) 56 PRATIBHA ENCLAVE AGRA. DAYALBAGH AGRA. (PAN : ALQPS 0517 F) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI VINOD KUMAR JR. D.R. ASSESSEE BY : APPLICATION REJECTED ORDER PER H.S. SIDHU J.M. : THE APPEAL BY THE REVENUE AND THE CROSS OBJECTION B Y THE ASSESSEE HAVE BEEN FILED AGAINST THE IMPUGNED ORDER DATED 26.04.2 010 PASSED BY THE LD. CIT(A)I AGRA ON THE FOLLOWING GROUNDS :- GROUNDS IN ITA NO.319/AGR/2010 :- 2 1. THAT THE CIT(A)-I AGRA HAS ERRED IN LAW AND O N FACTS OF THE CASE IN DELETING THE ADDITION OF ` 5 81 162/- MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF SHARES EVEN WHEN THE A SSESSEE DID NOT DISCHARGE HIS ONUS TO PROVE THE GENUINENESS OF SHAR E TRANSACTION RECEIPT; 2. THAT THE ORDER OF CIT(A)-I AGRA IS ERRONEOUS IN LAW AND ON THE FACTS OF THE CASE AND THAT THE ORDER OF THE A.O. BE RESTORED; 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY GROUND DURING THE APPELLATE PROCEEDINGS. 4. THE DEPARTMENT HAS FILED APPEAL BEFORE THE HONB LE ITAT ON IDENTICAL ISSUES IN OTHER CASES. GROUNDS IN C.O. NO.68/AGR/2010 :- 1. THAT THE FIRST NOTICE U/S 148 WHICH WAS RECEIVE D BY THE APPELLANT WAS ISSUED TIME BARRED AS PER THE LIMITAT IONS PRESCRIBED IN THE PROVISIONS OF SECTION 149 OF THE INCOME TAX ACT 1961. 2. THAT INITIATION OF PROCEEDINGS U/S 148 AND ISSUE OF NOTICE THEREON IS INVALID BEING THE PROCEEDINGS INITIATED BIASEDLY WITHOUT HAVING ANY VALID REASON TO BELIEVE BUT MERELY ON HY POTHETICAL IMAGINATIONS AND SELF MADE ASSUMPTIONS THAT THE INC OMES DECLARED BY THE ASSESSEE IN THEIR FILED RETURN OF INCOME ON 30. 07.2002 WAS ESCAPED INCOME AND HENCE ALL PROCEEDINGS THEREAFTER BEING N OT THE VALID PROCEEDINGS LIABLE TO BE QUASHED. 3. THAT THIS APPEAL BEFORE THE HONBLE ITAT HAS BEE N FILED VIOLATING THE INSTRUCTIONS OF THE CBDT WHEREIN IT H AS BEEN PRESCRIBED THAT ONLY THE APPEAL HAVING TAX EFFECT (AS DEFINE D IN CBDT INSTRUCTIONS NO.5/2008 DATED 15.05.2008) EXCEEDING 2 00 000/- CAN BE FILED BEFORE THE HONBLE ITAT WHEREIN THE TAX EFFE CT OF THIS SUBJECT APPEAL WORKS OUT TO 1 68 860/- (TAX ON ASSESSED INC OME 1 81 916/- AND TAX ON RETURNED INCOMES 13 056/-). IT IS THEREFORE PRAYED THAT THE RELIEF SHOULD BE G IVEN AND THE APPEAL BE ALLOWED AS PRAYED ABOVE. 3 2. NOTICE OF HEARING WAS ISSUED BY REGISTERED POST ACKNOWLEDGMENT DUE TO THE ASSESSEE FOR TODAY I.E. 06.07.2011. IN RESPONS E TO THE SAME SHRI MAHESH AGARWAL LD. CHARTERED ACCOUNTANT OF THE ASSESSEE F ILED HIS AUTHORIZATION ALONG WITH APPLICATION FOR ADJOURNMENT STATING THAT HE WO ULD BE OUT OF TOWN ON THE DATE OF HEARING AND REQUESTED FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE WE ARE NOT INCLI NED TO GRANT THE ADJOURNMENT THEREFORE REQUEST FOR ADJOURNMENT IS REJECTED AND WE PROCEED TO DECIDE THE ISSUE IN DISPUTE EX-PARTE THE ASSESSEE AFTER HEARING THE LD . DEPARTMENTAL REPRESENTATIVE. 3. WE FIND THAT THE TAX EFFECT IN THE PRESENT APPEA L FILED BY THE REVENUE IS LESS THAN ` 2 00 000/- AND THE SAME IS IN CONTRAVENTION OF C.B. D.T. INSTRUCTION NO.5 OF 2008 DATED 15.05.2008 WHICH FINDS STATUTORY FORCE U NDER THE PROVISIONS OF SECTION 268A OF THE INCOME-TAX ACT 1961. THE SAME IS THE REFORE NOT MAINTAINABLE. THE CLAUSE NO.3 OF THE SAID C.B.D.T. INSTRUCTION HAS MA DE IT CLEAR THAT APPEAL BEFORE THE TRIBUNAL BY THE REVENUE WILL HENCEFORTH BE FILE D WHERE TAX EFFECT EXCEEDS ` 2 00 000/-. THEREFORE IN THE FACTS AND CIRCUMSTAN CES OF THE PRESENT CASE THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND THE SAME IS DISMISSED AS NOT MAINTAINABLE. THE APPEAL FILED BY THE REVENUE IS T HUS DISMISSED. 4 4. AS REGARDS TO THE CROSS OBJECTION FILED BY THE A SSESSEE THE ASSESSEE HAS CHALLENGED THE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT 1961 (THE ACT HEREINAFTER). 5. WE HAVE PERUSED THE IMPUGNED ORDER. THE LD. FIR ST APPELLATE AUTHORITY HAS DISMISSED THIS ISSUE ON THE GROUND THAT THE LD. AUT HORISED REPRESENTATIVE OF THE ASSESSEE MADE A STATEMENT BEFORE THE LD. FIRST APPE LLATE AUTHORITY STATING THAT HE IS NOT PRESSING THE GROUND RAISED BY HIM CHALLENGING THE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT AND VALIDITY OF INITIATION O F REASSESSMENT PROCEEDINGS. 6. BEFORE US THE ASSESSEE HAS NOT FILED ANY AFFIDA VIT CONTROVERTING THE FINDINGS OF THE LD. FIRST APPELLATE AUTHORITY IN ABSENCE OF THE SAME WE ARE OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE HAS NOT P RESSED THE ISSUE INVOLVED IN THE CROSS OBJECTION THEN THE ASSESSEE COULD NOT DISPUT E THE ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT AND VALIDITY OF INITIATION O F REASSESSMENT PROCEEDINGS UNDER SECTION 147 OF THE ACT. 7. THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSE E HAS ALSO GIVEN HIS CONSENT DURING THE COURSE OF APPELLATE PROCEEDINGS VIDE ORD ER SHEET ENTRY DATED 23.04.2010 BY STATING THAT THESE GROUNDS ARE NOT PR ESSED AND THE LD. FIRST APPELLATE AUTHORITY HAS TREATED AS DISMISSED THESE GROUNDS. EVEN BEFORE US THE ASSESSEE HAS 5 NOT FILED ANY AFFIDAVIT OR EVIDENCE TO NEGATE THE F INDING GIVEN BY THE LD. FIRST APPELLATE AUTHORITY. THEREFORE WE UPHOLD THE FIND ING GIVEN BY THE LD. FIRST APPELLATE AUTHORITY AND DISMISS THE CROSS OBJECTION . 8. IN THE RESULT APPEAL FILED BY THE REVENUE AND C ROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 06.07.20 11). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 6 TH JULY 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY