Sh. Vinod Kalra, Agra v. I.T.O.-1(3), Agra

ITA 298/AGR/2011 | 2001-2002
Pronouncement Date: 09-11-2011 | Result: Allowed

Appeal Details

RSA Number 29820314 RSA 2011
Bench Agra
Appeal Number ITA 298/AGR/2011
Duration Of Justice 3 month(s)
Appellant Sh. Vinod Kalra, Agra
Respondent I.T.O.-1(3), Agra
Appeal Type Income Tax Appeal
Pronouncement Date 09-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 09-11-2011
Date Of Final Hearing 02-11-2011
Next Hearing Date 02-11-2011
Assessment Year 2001-2002
Appeal Filed On 08-08-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA (SMC) BENCH AGRA BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO. 298/AGRA/2011 ASSTT. YEAR : 2001-02 SHRI VINOD KALRA VS. INCOME-TAX OFFICER 61 GWALIOR ROAD AGRA. 1(3) AGRA. (APPELLANT) (RESPONDENT) FOR APPELLANT : S/SRI J.L. VERMA & ANIL VERMA ADV OCATES FOR RESPONDENT : SHRI A.K. SHARMA JR. D.R. DATE OF HEARING : 04.11.2011 DATE OF PRONOUNCEMENT : 09.11.2011 ORDER THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 15.03.2011 PASSED BY THE LD. CIT(A)-I AGRA. 2. THE BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME SHOWING TOTAL INCOME OF RS.138474/-. LATER O N THE ASSESSING OFFICER ISSUED NOTICE U/S. 148 ON 28.03.2008 WHICH WAS DULY SERVED UPON THE A SSESSEE ON 29.03.2008 AS IT WAS REPORTED BY THE ADDITIONAL DIRECTOR OF INCOME-TAX (INV.) THA T THE ASSESSEE HAS OBTAINED ACCOMMODATION ENTRY AND RECEIVED AN AMOUNT OF RS.2 00 000/- ON 29 .01.2001 THROUGH DD DATED 30.11.2008. AS PER AOS ORDER THE ASSESSEE HAS STATED THAT THE RE TURN FILED ON 29.12.2001 MAY BE TREATED TO BE IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT. HE HAS ALSO FILED A COPY OF THE SAME BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER ALSO ISSUE D NOTICE U/S. 142(1) TO THE ASSESSEE. IN RESPONSE TO THE SAME SHRI ANIL VERMA ADVOCATE APP EARED FROM TIME TO TIME AND DISCUSSED THE MATTER WITH THE ASSESSING OFFICER. HE HAS ALSO FILE D A COPY OF MEMORANDUM OF GIFT. AFTER 2 PERUSING THE SAME THE ASSESSING OFFICER IS OF THE VIEW THAT THE ASSESSEE HAS NOT MENTIONED THE RELATION OF DONOR AND DONEE FOR WHICH THE GIFT HAS BEEN GIVEN BY THE DONOR ON ACCOUNT OF AFFECTION. SECONDLY THE ASSESSEE HAS ALSO NOT MENT IONED ON WHAT OCCASION THE GIFT WAS GIVEN TO THE ASSESSEE AND FROM PERUSAL OF THE COPY OF BANK P ASSBOOK THE DONOR HAS RECEIVED RS.3 12 000/- BY TRANSFER ENTRY ON THE SAME DAY AND NO COPY OF CAPITAL ACCOUNT PROFIT & LOSS ACCOUNT AND COMPUTATION OF INCOME SHOWING SOURCE OF INCOME OF THE DONOR HAS BEEN FILED. ASSESSING OFFICER IS OF THE OPINION THAT ANY TRANSA CTION THROUGH BANK ACCOUNT DOES NOT MAKE NECESSARY THE TRANSACTION GENUINE AND HE COMPLETED THE ASSESSMENT U/S. 143(3)/147 OF THE ACT ON 19.12.2008 ON TOTAL INCOME OF RS.3 41 470/- AS UNE XPLAINED INCOME UNDER DEEMING PROVISIONS OF SECTION 68 AND 69 OF THE ACT. AGGRIEVED BY THE S AME THE ASSESSEE FILED AN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE IMPUGNED OR DER DATED 15.03.2011 DISMISSED THE APPEAL FILED BY THE ASSESSEE. NOW THE ASSESSEE HAS FILED T HE PRESENT APPEAL. 3. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE STATED THAT THE LD. CIT(A) I AGRA HAS ERRED IN LAW AND IN FACTS IN NOT PROPERLY APPRECIAT ING THAT THE NOTICE U/S. 148 HAD BEEN ISSUED BY THE ASSESSING OFFICER 4(4) AGRA ON THE BASIS OF DO UBTS AND SUSPICION WHEREAS ASSESSMENT HAS BEEN FRAMED BY ANOTHER INCOME-TAX OFFICER 1(3) AGR A WITHOUT CONFRONTING ANY EVIDENCE TO THE ASSESSEE. HE STATED THAT THE NOTICE U/S. 148 ISSUED BY THE ASSESSING OFFICER OTHER THAN THE ASSESSING OFFICER WHO COMPLETED THE ASSESSMENT IN D ISPUTE. THEREFORE THE ASSESSMENT IN DISPUTE DESERVES TO BE CANCELLED ON THIS LEGAL ISSUE. IN SU PPORT OF HIS CONTENTION HE RELIED UPON THE DECISION OF HONBLE GUJRAT HIGH COURT IN THE CASE O F HYNOUP FOOD AND OIL INDUSTRIES VS. ACIT REPORTED IN 307 ITR 115 (GUJ) 11 DTR (GUJ.) 241 A ND ITO VS. KRISHAN KUMAR GUPTA (2008) 16 DTR (DEL.) (TRIB.) 1. HE ALSO DRAW OUR ATTENTION TO WARDS THE ORDER OF THE LD. FIRST APPELLATE 3 AUTHORITY AT PAGE 3 PARA 4.1 IN WHICH THE LD. FIRST APPELLATE AUTHORITY HAS REJECTED THESE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE BY WRO NGLY HOLDING THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME IN RESPONSE TO THE NOTICE U/S. 148 ISSUED BY THE ITO WARD 4(4) AGRA AND HE HAS NOT OBJECTED THE SAME BEFORE THE ASSESSING OFFICER. THE LD. FIRST APPELLATE AUTHORITY HAS ALSO HELD THAT NOW AT THE APPELLATE STAGE THE OBJECTION OF T HE ASSESSEE CHALLENGING THE JURISDICTION OF ITO 1(3) AGRA TO PASS THE ORDER U/S. 147 READ WITH SEC TION 143(3) CANNOT BE ACCEPTED. HE ALSO DRAW OUR ATTENTION TOWARDS A SMALL PAPER BOOK FILED BY H IM CONTAINING PAGES NO. 1 TO 17 IN WHICH HE HAS ATTACHED COPIES OF REMAND REPORT OF AO WRITTEN SUBMISSIONS FILED BEFORE CIT(A) WRITTEN SUBMISSION FILED BEFORE AO QUESTIONNAIRE DATED 2.1 2.08 ISSUED BY AO U/S. 142 NOTICE U/S. 143(2) DT. 02.12.2008 OBJECTIONS MADE BEFORE ITO 4 (4) NOTICE U/S. 148 ISSUED BY ITO 4(4) DATED 28.03.08 AND REASONS RECORDED BY ITO 4(4). HE ESPEC IALLY DRAW OUR ATTENTION TOWARDS NOTICE U/S. 148 OF THE ACT DATED 28.03.2008 WHICH IS AT PAGE NO . 15 OF THE PAPER BOOK AS WELL AS PAGE NO. 16 & 17 THAT ARE THE REASON RECORDED FOR INITIATING PROCEEDINGS U/S. 148 BY SHRI VIJAI SINGH ITO 4(4) AGRA. HE HAS ALSO DRAW MY ATTENTION TOWARDS T HE NOTICE U/S. 142 141 AS WELL AS 143(2) OF THE I.T. ACT BY THE ITO 1(3) AGRA. HE FURTHER STAT ED THAT THE NOTICE U/S. 148 HAS BEEN ISSUED BY SHRI VIJAI SINGH ITO 4(4) AGRA ON THE BASIS OF RE ASONS RECORDED BY HIM FOR INITIATING PROCEEDINGS U/S. 148 OF THE ACT FOR THE ASSESSMENT YEAR IN DISPUTE. THE ASSESSING OFFICER I.E. ITO 1(3) HAS COMPLETED THE ASSESSMENT IN DISPUTE W HICH IS ILLEGAL WITHOUT JURISDICTION AND THE SAME IS DESERVE TO BE CANCELLED. HE REQUESTED THAT THE ASSESSMENT IN DISPUTE FOR A.Y. 2001-02 IN THE CASE OF ASSESSEE MAY BE CANCELLED BY ACCEPTING THE APPEAL FILED BY THE ASSESSEE. 4. ON THE CONTRARY THE LD. DR RELIED UPON THE ORDE R PASSED BY THE LD. FIRST APPELLATE AUTHORITY. ON ASKING BY THE BENCH TO THE LD. DR WHE THER THE STATEMENT MADE BY THE LD. COUNSEL 4 FOR THE ASSESSEE REGARDING ISSUANCE OF NOTICE U/S. 148 AS WELL AS RECORDING THE REASON FOR INITIATION OF PROCEEDING U/S. 148 IN THE CASE OF ASSESSEE BY S HRI VIJAI SINGH ITO 4(4) AGRA AND ASSESSMENT IN DISPUTE IS COMPLETED BY ITO 1(3) AGRA IS CORRECT OR NOT THE LD. DR REPLIED IN WRITING THE RELEVANT PORTION OF WHICH READS AS UND ER : 2. A PERUSAL OF RECORD SHOWS THAT NOTICE U/S. 148 DATED 28.03.2008 WAS ISSUED AND SERVED UPON THE ASSESSEE ON 29.03.2008 B Y THE ITO 4(4) AGRA AFTER OBTAINING PRIOR APPROVAL FROM THE ADDL. CIT RANGE- 4 AGRA. 3. LATER ON THE CASE WAS TRANSFERRED BY THE ITO 4 (4) AGRA TO THE ITO 1(3) AGRA VIDE LETTER DATED 28.11.2008 STATING THA T THE TERRITORIAL JURISDICTION OVER THE CASE OF ASSESSEE LIES WITH THE AO 1(3) AG RA. THE ITO 1(3) AGRA HAVING PROPER JURISDICTION OVER THE CASE ISSUED NOTICE U/S . 143(2)/142(1) OF THE ACT 1961 FIXING FOR HEARING ON 8.12.2008 AT 11.00 AM. 4. THE ORDER SHEET ENTRY DATED 11.12.2008 SHOWS T HAT SRI ANIL VERMA ADVOCATE ATTENDED. COPY OF REASONS RECORDED HANDED OVER. ADJOURNED TO 16.12.2008. COPY OF COMPUTATION OF INCOME TO BE PRO DUCED. THE ASSESSMENT WAS COMPLETED ON 19.12.2008 U/S. 143(3)/147 OF THE IT A CT 1961. 5. AS IT IS EVIDENT FROM THE RECORD THAT NO JURISD ICTION WAS CHALLENGED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEE DINGS AS PROVIDED U/S. 124 THE GROUND TAKEN BEFORE THE HONBLE ITAT IS NOT MAI NTAINABLE. 6. IT IS WORTHWHILE TO MENTION HERE THAT THE LEAR NED CIT(A)-1 AGRA HAS DISCUSSED THE ISSUE OF JURISDICTION IN LENGTH IN PA RA 4.1 OF ITS ORDER DATED 15.03.2011 AND REJECTED THE GROUND NO. 1 OF THE ASS ESSEE. 5. I HAVE HEARD THE BOTH PARTIES AND PERUSED THE RE LEVANT RECORD AVAILABLE WITH ME. I HAVE ALSO THOROUGHLY GONE THROUGH THE ORDERS PASSED BY T HE REVENUE AUTHORITIES AS WELL AS THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE BEFORE M E IN THE SHAPE OF PAPER BOOK CONTAINING PAGES NO. 1 TO 17 ALONGWITH WRITTEN SUBMISSION FILE D BY LD. DR. IT IS A MATTER OF RECORD THAT THAT SHRI VIJAI SINGH INCOME-TAX OFFICER 4(4) AGRA HAS RECORDED THE REASONS FOR THE ASSESSMENT YEAR IN DISPUTE BEFORE INITIATING PROCEEDINGS U/S. 148 A ND THEREAFTER HAS ALSO OBTAINED THE APPROVAL OF ADDL. COMMISSIONER OF INCOME-TAX. IT IS ALSO A MATT ER OF RECORD THAT SHRI VIJAI SINGH ITO 4(4) 5 AGRA HAS ALSO ISSUED NOTICE DATED 28.03.2008 TO THE ASSESSEE U/S. 148 OF THE ACT FOR THE ASSESSMENT YEAR IN DISPUTE I.E. 2001-02. THEREAFT ER THE ITO 1(3) AGRA HAS ISSUED A NOTICE U/S. 142 OF THE ACT DATED 02.12.2008. IT IS ALSO MATTER OF RECORD THAT THE ITO 1(3) AGRA HAS ALSO ISSUED A NOTICE DATED 02.12.2008 U/S. 143(2) OF THE ACT TO THE ASSESSEE FOR THE ASSESSMENT YEAR IN DISPUTE. I HAVE PERUSED THE SAID NOTICES WHICH IS A PART OF THE SAID PAPER BOOK FILED BY THE COUNSEL FOR THE ASSESSEE. AFTER PERUSING THE SAME I AM OF THE CONSIDERED OPINION THAT THE RE-ASSESSMENT IN DISPUTE HAS BEEN COMPLETED BY AN INCOME-TAX OFFI CER ON THE BASIS OF NOTICE U/S. 148 OF THE ACT ISSUED BY ANOTHER ITO WHO HAD NO JURISDICTION OVER THE ASSESSEE. THEREFORE KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE TH E RE-ASSESSMENT IN DISPUTE IS INVALID AND WITHOUT JURISDICTION WHICH IS LIABLE TO BE CANCELLE D. I AM OF THE VIEW THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN ADJUDICATED AND DECIDED IN FAVOUR OF A SSESSEE BY THE DECISION OF ITAT DELHI E BENCH IN THE CASE OF ITO VS. KRISHNA KUMAR GUPTA RE PORTED IN 16 DTR (DELHI)(TRIB.) 1. I HAVE THOROUGHLY GONE THROUGH THE ORDER PASSED BY THE ITA T DELHI E BENCH AND I AM OF THE CONSIDERED OPINION THAT THE LEGAL ISSUE RAISED BY T HE LD. COUNSEL FOR THE ASSESSEE HAS ALREADY BEEN ADJUDICATED AND DECIDED IN FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE SAME THE ASSESSMENT ORDER U/S. 143(3)/147 DATED 19.12.2008 F OR THE ASSESSMENT YEAR 2001-02 WHICH IS BASED ON THE NOTICE U/S. 148 ISSUED BY ANOTHER ITO WHO HAD NO JURISDICTION OVER THE ASSESSEE IS NOT A VALID RE-ASSESSMENT. THEREFORE I ACCEPT THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE ON LEGAL ISSUE AND ACCEPT THE APPEAL FILED BY THE ASSE SSEE BY CANCELING THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY WHO HAS WRONGLY H ELD THAT ASSESSEE CANNOT RAISE THIS LEGAL GROUND AT APPELLATE STAGE AND HE WRONGLY DISMISSED THE LEG AL OBJECTION RAISED BY THE ASSESSEE CHALLENGING THE JURISDICTION OF INCOME-TAX OFFICER 1(3) AGRA WHO PASSED THE ORDER IN DISPUTE U/S. 147 READ WITH SECTION 143(3) OF THE INCOME-TAX ACT. IN THE LIGHT OF ABOVE DISCUSSION I AM NOT 6 INCLINED TO UPHOLD THE IMPUGNED ORDER AND DECLARE T HAT THE ASSESSMENT MADE BY THE INCOME-TAX OFFICER 1(3) AGRA IS WITHOUT JURISDICTION AND THUS INVALID AND IS HEREBY CANCELLED. SINCE I HAVE DECIDED THE LEGAL ISSUE IN FAVOUR OF ASSESSEE AND C ANCELLED THE ASSESSMENT IN DISPUTE THEREFORE THERE IS NO NEED TO ADJUDICATE THE CASE OF ASSESSEE ON MERIT. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.11.2011. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 9 TH NOVEMBER 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY