Meer Singh, v. ITO Ward 2,

ITA 3362/DEL/2007 | 1998-1999
Pronouncement Date: 06-01-2010 | Result: Allowed

Appeal Details

RSA Number 336220114 RSA 2007
Bench Delhi
Appeal Number ITA 3362/DEL/2007
Duration Of Justice 2 year(s) 5 month(s) 19 day(s)
Appellant Meer Singh,
Respondent ITO Ward 2,
Appeal Type Income Tax Appeal
Pronouncement Date 06-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 06-01-2010
Date Of Final Hearing 06-01-2010
Next Hearing Date 06-01-2010
Assessment Year 1998-1999
Appeal Filed On 18-07-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : D : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO. 3362/DEL/2007 ASSESSMENT YEAR : 1998-99 MEER SINGH S/O SH. MAN SINGH V. & PO WAZIRABAD DISTT. GURGAON. VS. INCOME TAX OFFICER WARD-2 GURGAON. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VED BHANU ARYA ADVOCATE REVENUE BY : SHRI MANISH GUPTA SR. DR ORDER PER I.P. BANSAL JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER OF THE CIT (A) DATED 14 TH MAY 2007 FOR ASSESSMENT YEAR 1998-99. 2. THE IMPUGNED ASSESSMENT IS RE-ASSESSMENT AND IN THE GROUNDS OF APPEAL ONE OF THE GROUNDS TAKEN BY THE ASSESSEE IS THAT TH ERE IS NO VALID SERVICE OF NOTICE ISSUED U/S 148 THEREFORE THE ASSESSMENT IS BAD IN LAW AND THE ASSESSEE HAS ALSO CHALLENGED THE VALIDITY OR OTHERWISE OF VA RIOUS ADDITIONS MADE TO THE INCOME OF THE ASSESSEE. DURING THE COURSE OF HEARI NG IT CAME TO OUR NOTICE THAT VALIDITY OR OTHERWISE OF RE-ASSESSMENT WAS ALSO CHA LLENGED BY THE ASSESSEE BEFORE THE CIT (A) BY TAKING A SPECIFIC GROUND THAT NOTICE OF RE-ASSESSMENT WAS NEVER SERVED UPON THE ASSESSEE AND THIS CONTENTION OF THE ASSESSEE HAS SPECIFICALLY BEEN RECORDED IN THE ORDER OF THE CIT (A) AT PAGES 4 AND 5 WHERE THE WRITTEN SUBMISSIONS OF THE ASSESSEE HAS BEEN REPROD UCED BY CIT (A) AND FOR THE SAKE OF CONVENIENCE THESE SUBMISSIONS OF THE A SSESSEE ARE REPRODUCED BELOW:- ITA NO.3362/DEL/2007 2 2. THAT THE APPELLANT HAD SUBMITTED HIS RETURN OF INCOME FOR THE ASSTT. YEAR 1998-99 ON 15.06.1998 VIDE RECEIPT NO.6 54. AS PER ASSTT. ORDERS U/S 143(3) OF THE INCOME TAX ACT 196 1 FOR THE ASSTT. YEAR 1998-99 DATED 24.03.2006 THE INCOME TAX OFFIC ER WARD-2 GURGAON HAS STATED THAT A NOTICE HAD BEEN ISSUED U/ S 148 OF THE INCOME TAX ACT 1961 WHICH WAS IN FACT NEVER SERVE D TO THE APPELLANT AND THE ASSESSMENT MADE FOR THE ASSTT. YE AR 1998-99 BY THE ITO WARD-2 GURGAON IS ILLEGAL. 3. THAT THE INCOME TAX OFFICER WARD-2 STATED IN TH E ASSTT. ORDERS IN IST PARA OF PAGE 2 THAT THE NOTICE U/S 148 OF THE I NCOME TAX ACT 1961 WAS ISSUED TO THE ASSESSEE ON 31.03.2005 WHICH WAS DULY SERVED ON THE ASSESSEE THROUGH POST VIDE THIS OFFIC E DISPATCH NO.22551 DATED 31.03.2005; IS WRONG. THE SAID NOTIC E HAS NOT BEEN RECEIVED TO THE ASSESSEE SO FAR. HENCE THE ASSTT. FOR THE ASSTT. YEAR 1998-99 IS TIME BARRED UNDER INCOME TAX ACT AND IS ARBITRARY AND ILLEGAL. THE NOTICE ISSUED U/S 148 IS LIABLE TO BE QUASHED AND SET ASIDE. 4. IT IS HELD IN THE FOLLOWING HIGHER COURT RULINGS THAT THE NOTICE SHOULD NOT ONLY BE SERVED BUT SHOULD BE SERVED ON T HE PROPER PERSON ENTITLED TO RECEIVE THE SAME ON BEHALF OF THE ASSES SEE. IT IS OFTEN ASSUMED THAT NOTICE ISSUED FOR SERVICE BY REGD. POS T IS SUFFICIENT BUT IT IS NOT SO UNLESS THERE IS EVIDENCE OF SERVICE OF SUCH NOTICE ON THE PROPER PERSON OR ACKNOWLEDGEMENT OF SERVICE IT WIL L NOT BE A VALID SERVICE. 1. KESHAV NARAIN BANERJEE VS. CIT (1999) 238 ITR 69 4 (CAL) 2. SMT. KAUSHALYA BAI VS. CIT (1999) 238 ITR 1008 ( MP) 5. THAT THE ASSESSMENT MADE BY THE INCOME TAX OFFIC ER WARD-2 FOR THE ASSTT. YEAR 1998-99 U/S 143 (3) IS ILLEGAL AS T HE SAME IS BARRED BY LIMITATION. NO NOTICE U/S 148 WAS SERVED UPON T HE ASSESSEE WITHIN THE PRESCRIBED TIME. [CIT VS. LUNAR DIAMONDS LTD. (2006) 281 ITR 1 (DEL)] 3. WHILE DISPOSING OF SUCH CONTENTION OF THE ASSESS EE THE VALIDITY OF RE- ASSESSMENT PROCEEDINGS HAS BEEN UPHELD BY THE CIT ( A) WITH THE FOLLOWING OBSERVATIONS:- I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE C ONTENTIONS OF THE APPELLANT AND HAVE COME TO THE FOLLOWING CONCLU SION:- THE NOTICE U/S 148 HAS BEEN ISSUED WITHIN THE SCHED ULED TIME AND AFTER RECORDING THE REASONS FOR THE SAME AND HENCE THE NOTICE IS VALID AND THIS GROUND OF APPEAL IS DISMISSED. ITA NO.3362/DEL/2007 3 4. SIMILAR CONTENTION HAS BEEN RAISED BY THE ASSESS EE BEFORE US ALSO. IT WAS SUBMITTED BY THE LD. AR THAT THOUGH IT HAS BEEN REC ORDED IN THE ASSESSMENT ORDER THAT NOTICE WAS ISSUED AND SERVED UPON THE AS SESSEE THROUGH POST BUT IN FACT NO SERVICE WAS MADE ON ASSESSEE. IT WAS SUBM ITTED THAT A SPECIFIC GROUND WAS RAISED BEFORE THE CIT (A) AND WITHOUT PROPERLY DECIDING THE SAME HE HAS PROCEEDED TO DECIDE THE ADDITIONS ON MERIT. THUS IT WAS SUBMITTED THAT ASSESSMENT IN THE PRESENT CASE SHOULD BE HELD INVAL ID ON THE GROUND THAT THERE IS NO SERVICE OF NOTICE ON ASSESSEE WHICH IS STATED TO HAVE BEEN SERVED UPON THE ASSESSEE BY THE AO. 5. ON THE OTHER HAND IT WAS SUBMITTED BY THE LD. D R THAT FOR PROPERLY FRAMING THE ASSESSMENT WHAT IS NECESSARY IS TO ISSU E THE NOTICE WHICH HAS BEEN ISSUED BY THE AO WITHIN THE TIME PRESCRIBED AND IT IS EVIDENT FROM THE FOLLOWING OBSERVATIONS OF AO FROM THE ASSESSMENT ORDER:- IN VIEW OF THE ORDER OF THE THEN AO WHICH HAD BEE N CONFIRMED BY THE CIT (A) ACCORDINGLY REASONS FOR OPENING THE A SSESSMENT FOR THE AY 1998-99 WERE RECORDED U/S 148 OF THE IT ACT 1961 AND AFTER DUE APPROVAL FROM THE ADDITIONAL COMMISSIONER OF IN COME TAX GURGAON RANGE GURGAON NOTICE U/S 148 WAS ISSUED T O THE ASSESSEE ON 31.03.2005 WHICH WAS DULY SERVED UPON THE ASSESSEE THROUGH POST VIDE THIS OFFICE DISPATCH NO. 22551 DATED 31.03.2005. 6. THUS IT WAS SUBMITTED THAT ORDER OF THE CIT (A) ON THE ISSUE OF VALIDITY OF RE-ASSESSMENT PROCEEDINGS SHOULD BE UPHELD. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. AS IT IS EVIDENT FROM T HE ABOVE SUBMISSIONS WHICH WERE SUBMITTED BY THE ASSESSEE BEFORE THE CIT (A) T HAT IT HAS BEEN THE GRIEVANCE OF THE ASSESSEE THAT THERE WAS NO SERVICE OF NOTICE U/S 148 ON THE ASSESSEE. HOWEVER LD. CIT (A) HAS GIVEN NO FINDING ON SUCH A SPECT OF THE CONTENTION AND HE PROCEEDED TO DECIDE THE APPEAL ON MERITS WITHOUT RECORDING THE FINDING THAT WHETHER THERE WAS PROPER SERVICE OF NOTICE OR NOT. THIS ASPECT OF THE MATTER GOES ITA NO.3362/DEL/2007 4 TO THE VERY ROOT OF THE ISSUE AS IN THE ABSENCE OF SERVICE OF NOTICE THERE CANNOT BE A VALID RE-ASSESSMENT. THERE BEING NO SPECIFIC FINDING RECORDED BY THE CIT (A) IN THIS RESPECT WE ARE OF THE OPINION THAT IT WILL BE JUST AND FAIR IF THE MATTER IS RESTORED BACK TO THE FILE OF CIT (A) TO RECORD A FI NDING ON THIS ASPECT OF THE MATTER AS THIS ASPECT OF THE MATTER AFFECTS THE VERY ROOT OF THE ASSESSMENT. WE THEREFORE RESTORE THIS ISSUE TO THE FILE OF CIT (A ) WITH A DIRECTION TO GIVE A SPECIFIC FINDING ON THIS ASPECT THAT WHETHER OR NOT ANY SUCH NOTICE WAS SERVED UPON THE ASSESSEE. AS WE ARE RESTORING THIS ISSUE TO THE FI LE OF CIT (A) WE DO NOT COMMENT UPON THE MERITS OF THE ADDITION AS THEY WIL L ALSO BE RECONSIDERED BY CIT (A) AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUN ITY OF HEARING IF THE PRELIMINARY ISSUE OF VALIDITY OF RE-ASSESSMENT IS D ECIDED AGAINST THE ASSESSEE. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. . 9. THE ORDER PRONOUNCED IN THE OPEN COURT ON 06.01. 2010. SD/- SD/- [A.K. GARODIA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 06.01.2010. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES