Tokie Sharma,, New Delhi v. ITO, New Delhi

ITA 3135/DEL/2010 | 2004-2005
Pronouncement Date: 01-11-2011 | Result: Allowed

Appeal Details

RSA Number 313520114 RSA 2010
Assessee PAN AKNPS4144C
Bench Delhi
Appeal Number ITA 3135/DEL/2010
Duration Of Justice 1 year(s) 4 month(s) 7 day(s)
Appellant Tokie Sharma,, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 01-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 01-11-2011
Date Of Final Hearing 01-11-2011
Next Hearing Date 01-11-2011
Assessment Year 2004-2005
Appeal Filed On 24-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI K.G. BANSAL ACCOUNTANT MEMBER ITA NOS.3135/DEL/2010 ASSESSMENT YEARS : 2000-01-2004-05 TOKIE SHARMA A-39 VASANT MARG VASANT VIHAR NEW DELHI. PAN : AKNPS4144C VS. ITO WARD 4 (4) NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VED JAIN & RANU JAIN CA REVENUE BY : DR. B.R.R. KUMAR SR.DR ORDER PER I.P. BANSAL JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 10 TH JUNE 2008 FOR ASSESSMENT YEAR 2004-05. IN THE GROUNDS OF APPEAL THE ASSESSEE HAS CHALL ENGED THE VALIDITY OF THE ASSESSMENT ORDER ON THE GROUND OF ITS BE ING BAD IN LAW AS WELL AS ON FACTS AND IT IS THE CASE OF THE ASSESSEE THAT HE HAS NEITHER RECEIVED NOTICE U/S 148 NOR REASONS RECORDED H AVE BEEN SUPPLIED TO HER. THE VALIDITY OF THE ASSESSMENT HAS ALSO BEEN CHALLENGED ON THE GROUND OF TIME BARRED NOTICE ISSUED U/S 143 (2) OF THE ACT. APART FROM THAT THE ASSESSEE IS CHALLENGING TH E ADDITIONS MADE BY THE ASSESSING OFFICER ON MERITS. 2. THE ASSESSMENT ORDER DOES NOT DESCRIBE THAT WHETHER AN Y NOTICE U/S 148 WAS ISSUED OR NOT IT ALSO DOES NOT DESCRIBE THAT ANY NOTICE ITA NO.3135/DEL/2010 2 WAS ISSUED TO THE ASSESSEE U/S 148. HOWEVER IT IS THE CASE OF THE LEARNED AR THAT THE ASSESSING OFFICER HAD RECORDED THE REASONS COPY OF WHICH HAS BEEN PLACED AT PAGE 1 OF THE PAPER BOOK. THE REASONS RECORDED HAVE BEEN REPRODUCED IN THE SYNOPSIS SUBMITTED BY HIM WHICH ARE ALSO REPRODUCED FOR THE SAKE OF CONVENIENCE :- RETURN OF INCOME FOR A.Y. 2004-05 IN THIS CASE WAS F ILED ON 30.10.2004 VIDE ACK. RECEIPT NO.707 DECLARING AN INC OME OF RS.5 88 820/-. ASSESSEE IS A DIRECTOR IN A NUMBER OF COMPANIES. FRO M THEPERUSAL OF RECORD IT IS OBSERVED THAT THE ASSESSEE H AS DURING THE YEAR MADE INVESTMENT IN LOANS & ADVANCES TO FOLLOWI NG COMPANIES FOR PURCHASE OF LAND AT NOIDA. SL NO. NAME OF THE COMPANY AMOUNT 1. JPC MERCANTILE P LTD. 43 75 000/- 2. JPC INFO SYSTEMS P LTD. 43 75 000/- 3. JPC APPARELS P LTD. 44 50 000/- 1 32 00 000/- ON VERIFICATION IT IS FOUND THAT THE INVESTMENT OF RS.1 32 00 000/- HAS NOT BEEN REFLECTED BY THE ASSESSE E IN HIS RETURN OF INCOME FOR THE ASSTT. YEAR 2004-05 I HAVE REA SON TO BELIEVE THAT INCOME OF RS.1 32 00 000/- CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THE ASSESSMENT YEAR 2004-05. 3. ADVERTING TO THE ASSESSMENT FRAMED IT WAS POINTED OU T BY THE LEARNED AR THAT WHILE FRAMING THE ASSESSMENT THE ASSESSING OFFICER DID NOT MAKE ANY ADDITION ON THE ISSUES WHICH HAVE BEE N RECORDED IN THE REASONS. THEREFORE THE LEARNED AR RELYING UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF RANBAXY LABO RATORIES LTD. VS. CIT 336 ITR 136 (DEL) HAS CONTENDED THAT ASSESSMENT ITSEL F CANNOT BE HELD TO BE VALID. IT WAS POINTED OUT THAT IN THE CASE OF HUSBAND OF THE ASSESSEE UNDER SIMILAR CIRCUMSTANCES THE TRIBUNAL HAD REST ORED BACK THE ISSUE TO THE FILE OF CIT (A) VIDE ORDER DATED 7 TH APRIL 2011 IN ITA NO.3137/DEL/2010. HE HAS PLACED BEFORE US COPY OF TH E SAID ORDER. REFERRING TO THESE CIRCUMSTANCES IT IS THE CASE OF THE LEARNED AR THAT ITA NO.3135/DEL/2010 3 ASSESSMENT HAS NOT BEEN VALIDLY FRAMED AS IT IS NOT OPEN T O THE ASSESSING OFFICER TO INDEPENDENTLY ASSESSEE THE ASSESSEE ON SOME OTHER INCOME WHICH WAS NOT SUBJECT MATTER OF REASONS RE CORDED FOR REOPENING THE ASSESSMENT. BEFORE PROCEEDING IT WILL B E RELEVANT TO REPRODUCE THE AFOREMENTIONED ORDER OF THE TRIBUNAL IN THE CASE OF THE HUSBAND OF THE ASSESSEE. 1. THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YE AR 2004-05 ARISES OUT OF THE ORDER OF LD. CIT(A) VII NEW DELHI. 2. AT THE OUTSET LD. A.R. FOR THE ASSESSEE SUBM ITTED THAT THE ASSESSMENT MADE IN PURSUANCE TO THE NOTICE U/S 148 READ WITH SECTION 147 IS BAD IN LAW ON THE GROUND THAT NO AD DITION HAS BEEN MADE ON THE BASIS OF WHICH ASSESSMENT WAS REO PENED AND THE ASSESSING OFFICER HAD ASSESSED THE INCOME WHICH WAS NOT SUBJECT MATTER OF THE NOTICE. THE ASSESSEE FILED AMEND ED GROUNDS OF APPEAL. THE RELEVANT GROUND OF APPEAL IS REPRODUCED AS UNDER: 2(II) WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATIVE IF THE ASSESSMENT HAS BEEN MADE BY REOPENING THE ASSESSMENT U/S 148 THE SAME IS BAD BOTH IN THE YE OF LAW AS THE ASSESSING OFFICER UPON ISSUANCE OF THE NOTICE UNDER SECTION 148 OF THE IN COME TAX ACT 1961 READ WITH SECTION 147 HAVING NOT ASSESSED THE INCOME WHICH HE HAS REASON TO BELIEVE HAD ESCA PED ASSESSMENT AND WHICH FORM THE BASIS OF NOTICE U /S 148 IT WAS NOT OPEN TO HIM TO ASSESS OR REAS SESS INDEPENDENTLY ANY OTHER INCOME WHICH DOES NOT F ORM THE SUBJECT MATTER OF THE NOTICE AND ON FACTS AS NEITHER A NOTICE U/S 148 WAS EVER RECEIVED BY THE ASSESSE E NOR THE REASONS RECORDED FOR REOPENING WERE EVER PROVID ED TO THE APPELLANT. 3. IT WAS FAIRLY CONCEDED BY THE LD. A.R. FOR THE ASSESSEE THAT BEFORE LD. CIT(A) NO SUCH GROUND OF APPEAL WAS TAKE N. HE MADE A REQUEST THAT THIS GROUND OF APPEAL MAY BE ADMITTED AND AD JUDICATED UPON. 4 AFTER HEARING BOTH THE PARTIES THE AMENDED G ROUNDS OF APPEAL WERE ADMITTED. THE ASSESSEE IN THE AMENDED GROUNDS HAS MENTIONED THAT NO ADDITION WAS MADE FOR ESCAPEMENT OF INCOME FOR WHICH THE ASSESSMENT WAS REOPENED. SINCE BE FORE LD. CIT(A) THE ASSESSEE HAD NOT TAKEN THIS LEGAL GROUND WH ICH HAS BEEN ADMITTED BY US WE FEEL IT PROPER TO SET ASIDE THE ISSUE TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO EXAMINE THE LEGAL I SSUE WHETHER ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT WAS JUSTIF IED IN VIEW OF THE FACT THAT NO ADDITION HAS BEEN MADE IN RESPECT OF AMOUNT OF ITA NO.3135/DEL/2010 4 INCOME ESCAPING ASSESSMENT FOR WHICH THE ASSESS MENT WAS REOPENED. THE LD. CIT(A) WILL EXAMINE THE CASE OF TH E ASSESSEE AND PASS A SPEAKING ORDER IN RESPECT OF ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT. SINCE WE HAVE SET ASIDE THE ISSUE RELATING TO ASSUMPTION OF JURISDICTION U/S 147 THE ADDITION MADE ON MERIT ALSO SET ASIDE TO THE FILE OF CIT(A) TO BE DECIDED AFRESH. 5. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH APRIL 2011. 4. IT WILL ALSO BE RELEVANT TO MENTION HERE THAT IT WAS A MATTER OF DISPUTE THAT WHETHER OR NOT THE ASSESSMENT IN THE PRESENT CASE WAS FRAMED U/S 148. LEARNED CIT (A) HAS RECORDED HIS FIND ING ON THIS ISSUE AS UNDER:- THE CONTENTION OF THE LD. ARS OF THE APPELLANT WERE CA REFULLY SCRUTINIZED AFTER DUE SCRUTINY IT HAS BEEN REVEALED THAT IN FACT THE APPELLANT WAS ISSUED A NOTICE UNDER SECTION 148 ON 10.3.2006 AFTER RECORDING THE REASONS FOR REASSESSMEN T PROCEEDINGS WHICH WAS MUCH BEFORE THE NOTICE ISSUED U NDER SECTION 143(2) OF THE INCOME TAX ACT 1961 ON 14 TH JUNE 2006. IT HAS ALSO BEEN FOUND THAT THE APPELLANT VIDE ITS LETTER DATE D 31 ST MARCH 2006 HAD ALSO COMMUNICATED TO THE ASSESSING OFF ICER THAT THE RETURN OF INCOME ORIGINALLY FILED ON 31.10.200 4 MAYBE CONSIDERED AS RETURN FILED IN RESPONSE TO THE NOTICE IS SUED UNDER SECTION 148 OF THE INCOME TAX AT 1961. THEREFORE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS UNDER SECTION 143 (3) READ WITH SECTION 148 OF THE INCOME TAX ACT 1961 ONLY. THE FACTS WHICH ARE AVAILABLE ON THE ASSE SSMENT RECORD HAVE CLEARLY REVEALED THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS GOOD IN LAW AND HAS BEEN MADE UNDER SECTION 143(3) READ WITH SECTION 147 OF THE INCOM E TAX AT 1961. THEREFORE APPELLANTS APPEAL ON THIS GROUND I S CONSIDERED TOTALLY MISCONCEIVED AND INFRUCTUOUS AND STA NDS DISMISSED. 5. THE DEPARTMENT HAS NOT CHALLENGED THE AFOREMENTIO NED FINDINGS OF LEARNED CIT (A). THEREFORE IT HAS TO BE HELD TH AT THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER IS U/S 143 (3) READ WITH SECTION 148 OF THE ACT AND NOTICE WAS ALSO ISSUED TO THE ASSESSEE ON 10 TH MARCH 2006 AND VIDE REPLY DATED 31 ST MARCH 2006 THE ASSESSEE HAD COMMUNICATED ITA NO.3135/DEL/2010 5 TO THE ASSESSING OFFICER THAT THE RETURN OF INCOME ORIG INALLY FILED ON 31 ST OCTOBER 2004 MAY BE CONSIDERED AS RETURN FILED IN RE SPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT. THEREFORE THE ASSESSEE HAS CHALLENGED THE VALIDITY OF RE-ASSESSMENT PROCEEDINGS U/S 148 AND HE HAS NOT GIVEN ANY FINDING UPON THAT THEREFORE AFTE R HEARING BOTH THE PARTIES RESPECTFULLY FOLLOWING THE AFOREMENTIONED OR DER OF THE TRIBUNAL IN THE CASE OF THE HUSBAND OF THE ASSESSEE WE RESTORE THI S ISSUE TO THE FILE OF CIT (A) WITH SIMILAR DIRECTIONS WHO AFTER G IVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING SHALL RE-ADJUDICATE ON THIS ISSUE. THE ISSUE RELATING TO ADDITIONS ON MERITS IS ALSO SET ASIDE TO THE FILE FO CIT (A) FOR FRESH ADJUDICATION AS HAS BEEN DIRECTED IN AFOREMENTIONED ORDER OF THE TRIBUNAL. WE DIRECT ACCORDINGLY. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS TRE ATED TO BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID . THE ORDER PRONOUNCED IN THE OPEN COURT ON 01.11.20 11. SD/- SD/- [K.G. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 01.11. 2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES