Sh. Kewal Krishan Sharma, Dehradun v. ITO, Dehradun

ITA 413/DEL/2012 | 2005-2006
Pronouncement Date: 30-03-2012 | Result: Allowed

Appeal Details

RSA Number 41320114 RSA 2012
Assessee PAN AJYPS1569B
Bench Delhi
Appeal Number ITA 413/DEL/2012
Duration Of Justice 2 month(s) 2 day(s)
Appellant Sh. Kewal Krishan Sharma, Dehradun
Respondent ITO, Dehradun
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 30-03-2012
Assessment Year 2005-2006
Appeal Filed On 27-01-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI SHAMIM YAHYA ITA NO. 413/DEL/2012 ASSESSMENT YEAR: 2005-06 KEWAL KRISHAN SHARMA VS. INCOME-TAX OFFICER 1 NEHRU ENCLAVE WARD 2(2) DEHRADUN. DEHRADUN. (PAN: AJYPS1569B) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ASHWANI TANEJA ADV. RESPONDENT BY: MS. Y. KAKKAR D R DATE OF HEARING : 29.03.2012 DATE OF PRONOUNCEMENT : 30.03.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER PASSED BY THE LEARNED CIT(APPEALS) DATED 08.11.2011 FOR ASSESSMEN T YEAR 2005-06. THE ASSESSEE HAS TAKEN THIRTEEN GROUNDS OF APPEAL HOWE VER HIS GRIEVANCES MAINLY REVOLVE AROUND FIVE ISSUES NAMELY (A) LEAR NED ASSESSING OFFICER HAS ERRED IN PASSING AN EX PARTE ASSESSMENT ORDER UNDER SECTION 144 WITHOUT ASSUMING JURISDICTION AS PER LAW; (B) LEARNED ASSES SING OFFICER HAS ERRED IN MAKING AN ADDITION OF RS.5 59 533; (C) LEARNED ASSE SSING OFFICER HAS ERRED IN REOPENING THE ASSESSMENT UNDER SEC. 147 BY ISSUA NCE OF A NOTICE UNDER SEC. 148 OF THE INCOME-TAX ACT 1961 WITHOUT ADHERI NG TO THE MANDATORY CONDITIONS ENUMERATED IN SECTIONS 147 TO 151 OF THE INCOME-TAX ACT 1961; 2 (D) LEARNED ASSESSING OFFICER HAS ERRED IN DENYING REBATE UNDER SECTION 88 AND ERRED IN ESTIMATING RENTAL INCOME AT RS.1 16 16 7 INSTEAD OF RS.65 674 AND LASTLY (E) THE LEARNED ASSESSING OFFICER HAS ER RED IN CHARGING INTEREST UNDER SEC. 234 A B AND C OF THE INCOME-TAX ACT 19 61. 2. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE LEARNED COUNSEL FOR THE ASSESSEE HAS CHALLENGED THE RE-OPENING OF ASSESSMENT IN HIS PRELIMINARY OBJECTI ON AND POINTED OUT THAT NO REASONS ARE AVAILABLE FOR FORMING A BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. HE TOOK US THROUGH THE REASONS AS WELL AS THE OBJECTIONS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AGAINST S UCH REOPENING. HE FURTHER SUBMITTED THAT LEARNED ASSESSING OFFICER HAS NOT DI SPOSED OF THE OBJECTIONS MADE BY THE ASSESSEE. 3. LEARNED DR ON THE OTHER HAND SUBMITTED THAT BEFO RE LEARNED FIRST APPELLATE AUTHORITY ASSESSEE HAS NOT CHALLENGED TH E RE-OPENING OF ASSESSMENT. HE HAS ONLY CHALLENGED THAT HIS OBJECT IONS AGAINST REOPENING HAS NOT BEEN ADJUDICATED BY THE ASSESSING OFFICER. LEARNED FIRST APPELLATE AUTHORITY HAS OBSERVED THAT ASSESSING OFFICER HAS D ULY NOTICED THE OBJECTIONS OF THE ASSESSEE AND FILED THEM. SHE POIN TED OUT THAT THOUGH THERE MAY NOT BE ANY SPEAKING ORDER BUT ONCE OBJECTIONS A RE FILED BY THE ASSESSING OFFICER THEN IT IS TO BE CONSTRUED THAT OBJECTIONS ARE REJECTED. WITH REGARD TO REASSESSMENT SHE SUBMITTED THAT NO FINDING IS DIS CERNIBLE ON THIS ISSUE IN 3 THE ORDER OF THE LEARNED CIT(APPEALS). IT DESERVES TO BE SET ASIDE TO THE FILE OF THE LEARNED FIRST APPELLATE AUTHORITY. 4. WE HAVE CONFRONTED THE LEARNED COUNSEL FOR THE A SSESSEE AS TO WHY THIS ISSUE BE NOT REMANDED TO THE FILE OF THE LEARN ED FIRST APPELLATE AUTHORITY BECAUSE THE ASSESSEE FAILED TO RAISE THIS GROUND OF APPEAL BEFORE THE LEARNED CIT(APPEALS) AND NO FINDING AT THE END OF THE LEARNED FIRST APPELLATE AUTHORITY IS DISCERNIBLE. APART FROM THIS ASSESSEE COULD NOT FILE A DETAILED PAPER BOOK. THE LEARNED COUNSEL FOR THE AS SESSEE SUBMITTED THAT IF THE ISSUES ARE TO BE SET ASIDE THEN THEY BE SET ASI DE TO THE FILE OF THE LEARNED ASSESSING OFFICER BECAUSE ASSESSMENT ORDER IS AN EX PARTE ORDER UNDER SECTION 144 OF THE INCOME-TAX ACT 1961. ASSESSEE W ILL GET AN OPPORTUNITY TO PRODUCE ALL THE DETAILS. IF THE ISSUES ARE SET ASID E TO THE FILE OF THE LEARNED FIRST APPELLATE AUTHORITY IT WILL ONLY GIVE RISE M ULTIPLICITY OF LITIGATION BECAUSE IN THAT CASE LEARNED FIRST APPELLATE AUTHO RITY WILL CALL FOR A REMAND REPORT FROM THE ASSESSING OFFICER AND THE PR OCEEDINGS WOULD COMMENCE AT TWO PLACES. 5. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTA NCES WE FIND THAT ASSESSEE HAS MADE DETAILED SUBMISSIONS AGAINST THE RE-OPENING OF ASSESSMENT BUT LEARNED ASSESSING OFFICER HAS NOT DISPOSED OF T HOSE OBJECTIONS. SIMILARLY HE HAS PASSED THE ASSESSMENT ORDER EX PA RTE. IT IS NOT DISCERNIBLE FROM THE RECORD THAT HE HAS EFFECTED THE SERVICE OF NOTICE UNDER SECTION 4 142(1) ON 14.8.2009. THE ASSESSEE IS A SALARIED RET IRED EMPLOYEE. HE WAS WORKING AS A SENIOR SCIENTIST IN WADIA INSTITUTE OF HIMALAYAN GEOLOGY DEHRADUN. HIS INCOME HAS BEEN DETERMINED AT RS.8 59 820 AS AGAINST RS.2 78 222 DISCLOSED BY HIM. ASSESSING OFFICER HAS NOTICED THE RETURNED OF INCOME AT RS.1 83 920 WHICH ACCORDING TO THE ASSESS EE IS FACTUALLY INCORRECT BECAUSE DECLARED INCOME IS OF RS.2 78 220. SIMILARL Y ASSESSING OFFICER IN THE EX PARTE ASSESSMENT ORDER DID NOT GRANT CREDIT OF TDS AND REBATE UNDER SECTION 88. CONSIDERING ALL THESE CIRCUMSTANCES WE DEEM IT APPROPRIATE THAT ENDS OF JUSTICE WOULD MEET IF WE SET ASIDE ALL THE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICATION. LEARNED ASSES SING OFFICER SHALL ALSO DISPOSE OF ALL THE OBJECTIONS OF THE ASSESSEE AGAIN ST RE-OPENING OF THE ASSESSMENT. THE ASSESSEE WILL BE AT LIBERTY TO SUBM IT ANY EVIDENCE IN SUPPORT OF HIS EXPLANATION. IT IS NEEDLESS TO SAY THAT THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR INJURE THE CASE OF A.O. OR WOULD NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE. - 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 30.03.20 12 SD/- SD/- ( SHAMIM YAHYA ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30/03/2012 MOHAN LAL 5 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR