Dr. Ashish Kakar,, New Delhi v. CIT-III,, New Delhi

ITA 2514/DEL/2008 | 2003-2004
Pronouncement Date: 13-01-2010 | Result: Allowed

Appeal Details

RSA Number 251420114 RSA 2008
Assessee PAN DELOF2008A
Bench Delhi
Appeal Number ITA 2514/DEL/2008
Duration Of Justice 1 year(s) 5 month(s) 28 day(s)
Appellant Dr. Ashish Kakar,, New Delhi
Respondent CIT-III,, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 13-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 13-01-2010
Date Of Final Hearing 13-01-2010
Next Hearing Date 13-01-2010
Assessment Year 2003-2004
Appeal Filed On 15-07-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `A: NEW DELHI BEFORE SH G.E. VEERABHADRAPPA VP & SH R.P.TOLANI JM I.T.A. NO.2514/DEL OF 2008 ASSESSMENT YEAR: 2003-04 DR. ASHISH KAKKAR VS COMMISSIONER OF INCOME- TAX 31 SOUTH PATEL NAGAR DELHI-III NEW DELHI. APPELLANT RESPONDENT APPELLANT BY: NONE DEPARTMENT BY: SHRI A.K. PANDEY ORDER PER R.P. TOLANI JM: THIS IS ASSESSEES APPEAL. FOLLOWING GROUNDS ARE R AISED: 1. THAT THE ORDER DATED 14.12.2007 PASSED U/S 263 BY THE CIT-XIII NEW DELHI IS BAD IN LAW AND AGAINST THE FACTS OF THE CASE. 2. THAT THE LD. CIT HAS GREATLY ERRED IN LAW AND ON FACTS OF THE CASE IN (A) PASSING AN ORDER U/S 263 WITHOUT GOING INTO THE FACTS AND MERITS OF THE CASE ESPECIALLY WHEN PROVISIONS OF SECTION 263 WERE NOT ATTRACTED IN THE INSTANT CASE AS THE ORDER DATED 28.10.2005 PASSED BY THE ITO WARD 37(3) NEW DELHI IS NEITHER PROVED TO BE ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. (B) PASSING THE ORDERS U/S 263 ON 14.12.2007 AFTER HEARING THE SUBMISSIONS OF THE COUNSEL ON 5.9.207 AND NEITHER INCORPORATING THE SUBMISSIONS IN THE ORDER AND NOR MAKING ANY MENTION OF THE SAME. (C) GIVING WRONG DIRECTIONS TO THE ITO BY EXCEEDING THE AUTHORITY VESTED IN THE COMMISSIONER BY DIRECTING THE ITO TO FRAME THE 2 ASSESSMENT DE NOVO ON ONE HAND AND TO DISALLOW THE DEDUCTION EXCESSIVELY AND INCORRECTLY CLAIMED U/S 80RRA ON THE OTHER. (D ) IN RCORDING A FINDING THAT THE DEDUCTION U/S 80RRA HAS BEEN WRONGLY ALLOWED BY THE ITO ESPECIALLY WHEN FIRC CERTIFICATES IN FORM 10H HAD BEEN DULY ATTACHED WITH THE RETURN AND NOWHERE POINTING OUT IN HER ORDER THAT THE FIRC CERTIFICATES WERE EITHER WRONG OR DEFECTIVE OR THE DEDUCTION WAS WRONGLY ALLOWED. (E ) IN NOT GIVING ANY COGNIZANCE TO THE FACTS THAT THE ITO ON ITS OWN IN PROCEEDING U/S 154 HAS ALREADY SUO MOTO DISALLOWED THE CLAIM U/S 8-RRA WITHOUT WAITING FOR THE DIRECTIONS OR THE OUTCOME OF THE PROCEEDINGS U/S 263 OF THE CIT-XIII AND HAS ALSO EXCEEDED HIS JURISDICTION BY PASSING SUCH ORDER U/S 154. (F ) IN SENDING THE ORDER U/S 263 TO THE WRONG ADDRESS WITHOUT VERIFYING IT BEFORE DISPATCHING THE ORDER. 3. THAT THE ORDER PASSED BY THE CIT U/S 263 ARE TOTALLY INCORRECT UNJUST OUTSIDE THE SCOPE OF NATURAL JUSTICE AND HAVE BEEN PASSED IN UTTER DISREGARD OF ALL PRINCIPLES OF LAW AND FACTS OF THE CASE. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HAV E HEARD THE LEARNED DR AND PASSED AN EX PARTE ORDER QUA THE ASSESSEE. 3. LEARNED DR AT THE OUTSET CONCEDES THAT THE AO BEFORE PASSING OF THE ORDER U/S 263 IN THIS CASE HAS ALREADY PASSED ORDER U/S 154 OF THE INCOME-TAX ACT THEREBY CORRECTING THE MISTAKES POINTED OUT BY CIT IN PROCEEDINGS U/S 263. ON TECHNICAL TERMS THE MISTAKES POINTED OUT BY CIT DO NOT EXIST AS ON THE DATE OF REVISION IN VIEW OF THE ORDER U/S 154. SINCE THE ISSUES HELD TO BE 3 ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF REVEN UE NO MORE EXISTED ON THE DATE OF REVISION THE ORDER OF CIT U/S 263 TECHNICA LLY BECOMES UNTENABLE THEREFORE THE ASSESSEES APPEAL SHOULD SUCCEED HO WEVER IN THE INTEREST OF JUSTICE LIBERTY MAY BE GIVEN TO REVIVE THE APPEAL IN CASE OF SOME COMPLEXITY ARISING OUT OF THE APPEAL AGAINST ORDER U/S 154. 4. WE FIND MERIT IN THE ARGUMENT OF LEARNED DR. IN VIEW OF THE ABOVE WE QUASH THE ORDER PASSED BY CIT U/S 263 SINCE THE ISSUE HELD TO BE ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF REVEN UE DID NOT EXIST AS ON THE DATE OF ORDER. FURTHER IN THE INTEREST OF JUSTICE IF ANY COMPLEXITY ARISES DUE TO APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER U /S 154 THE ASSESSEE WILL HAVE A LIBERTY TO REVIVE THIS ORDER. 5. IN THE RESULT ASSESSEES APPEAL IS ALLOWED ON A BOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JANUARY 2010. (G.E. VEERABHADRAPPA) (R.P. TOLANI) VICE PRESIDENT JUDICIAL MEMBER DATED: 13 TH JANUARY 2010 VIJAY COPY TO: 1. APPELLANT. 2. RESPONDENT. 3. CIT-III NEW DELHI 4. CIT(A) 5. DR ASSISTANT REGISTRAR