MAHAVEER PRASAD GUPTA, Jaipur v. DCIT, Jaipur

ITA 499/JPR/2016 | 2006-2007
Pronouncement Date: 13-11-2017 | Result: Allowed

Appeal Details

RSA Number 49923114 RSA 2016
Assessee PAN ABVPG8261B
Bench Jaipur
Appeal Number ITA 499/JPR/2016
Duration Of Justice 1 year(s) 6 month(s) 7 day(s)
Appellant MAHAVEER PRASAD GUPTA, Jaipur
Respondent DCIT, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 13-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted Not Allotted
Tribunal Order Date 13-11-2017
Date Of Final Hearing 11-07-2017
Next Hearing Date 11-07-2017
First Hearing Date 11-07-2017
Assessment Year 2006-2007
Appeal Filed On 06-05-2016
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHE S JAIPUR JH FOT; IKY JKO] U;KF;D LNL; OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO JM & SHRI VIKRAM SINGH YADAV AM VK;DJ VIHY LA- @ ITA NO. 499/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2006-07 SH. MAHAVEER PRASAD GUPTA 85 NEMI NAGAR VAISHALI NAGAR JAIPUR. CUKE VS. DCIT CIRCLE-7 JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABVPG8261B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESP ONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI ANIL MATHUR (ADV.) & SHRI DILEEP SHIVPURI (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI P.P.MEENA LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 31/10/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 13/11/2017 VKNS'K@ ORDER PER: VIJAY PAL RAO J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 21ST MARCH 2016 OF CIT(APPEALS) FOR THE ASSESSMENT YEAR 2006-07. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS AS UNDER: - 1. THAT ON FACTS AND IN CIRCUMSTANCES OF CASE LD. CIT(APPEALS) GROSSLY ERRED AND ACTED ILLEGALITY IN CONFIRMING T HE ISSUE OF NOTICE U/S 148 AND FINALIZATION OF ASSESSMENT PROCEEDING B Y THE AO. U/S 143(3) OF THE ACT. 2. THAT ON LAW AS WELL AS ON THE FACTS AND IN CIRCU MSTANCES OF THE CASE LD. CIT(APPEALS) GROSSLY ERRED AND WAS ACTED ILLEGALLY IN CONFIRMING THE ADDITION OF A SUM OF RS. 48 11 521/- ON ACCOUNT OF ITA NO. 499/JP/2016 SH. MAHAVEER PRASAD GUPTA VS. DCIT 2 ALLEGED BROKERAGE RECEIPT WITHOUT ANY BASIS AND RAT IONAL JUSTIFICATION. 2. GROUND NUMBER 1 IS REGARDING VALIDITY OF REOPENI NG OF ASSESSMENT UNDER SECTION 148 OF THE INCOME TAX ACT. THE ASSESS EE IS AN INDIVIDUAL AND WORKING AS DEVELOPMENT OFFICER WITH LIC. HE FIL ED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSTITUTION O N 28 JULY 2006 REPORTING TAXABLE INCOME OF RUPEES 6 85 520/-. THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE INCOME TA X ACT ON 3RD OCTOBER 2008 WHEREBY THE RETURN INCOME WAS ACCEPTED . SUBSEQUENTLY A SURVEY ACTION UNDER SECTION 133A WAS CARRIED OUT BY THE INCOME TAX DEPARTMENT ON 14TH AUGUST 2012 IN CASE OF M/S. VEDA NG COLONIZERS PRIVATE LIMITED. DURING THE SURVEY PROCEEDINGS A DO CUMENT WAS IMPOUNDED CONTAINING AN ACCOUNT OF BALAJI VIHAR SCH EME DEVELOPED BY M/S. LUXMI GRIH NIRMAN SAHKARI SAMITI LIMITED JAIPU R. BASED ON THIS DOCUMENT THE AO NOTED THAT THE ASSESSEE RECEIVED A SUM OF RUPEES 4811521 AS BROKERAGE INCOME ON LAND DEALINGS. ACCOR DINGLY THE AO PROPOSED TO REOPEN THE ASSESSMENT AND ASSESS THE SA ID BROKERAGE INCOME TO TAX BY ISSUING A NOTICE UNDER SECTION 148 ON 20TH MARCH 2013. THE ASSESSING OFFICER COMPLETED THE REASSESSM ENT WHEREBY AN ADDITION OF RUPEES 48 11 521/- WAS MADE ON ACCOUNT OF BROKERAGE ITA NO. 499/JP/2016 SH. MAHAVEER PRASAD GUPTA VS. DCIT 3 RECEIPTS. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER BEFORE THE CIT(APPEALS) AND RAISE AN OBJECTION AGAI NST VALIDITY OF REOPENING OF THE ASSESSMENT. HOWEVER CIT(APPEAL) D ID NOT ACCEPT THE OBJECTION OF THE ASSESSEE AND HELD THAT ASSESSING O FFICER WAS HAVING TANGIBLE MATERIAL AS DETECTED DURING THE COURSE OF SURVEY PROCEEDINGS UNDER SECTION 133A TO FORM THE OPINION THAT THE INC OME ASSESSABLE TO TAX ON ACCOUNT OF BROKERAGE RECEIPT IN LAND DEALING S HAS ESCAPED ASSESSMENT. 3. BEFORE US LD. AR OF THE ASSESSEE HAS SUBMITTED T HAT THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) AND T HEREAFTER THE AO REOPENED THE ASSESSMENT AFTER THE EXPIRY OF 4 YEARS ON 20TH MARCH 2013. THEREFORE THE APPROVAL WAS REQUIRED TO BE TA KEN FROM COMMISSIONER OF INCOME TAX OR CHIEF COMMISSIONER OF INCOME TAX BEFORE ISSUING THE NOTICE UNDER SECTION 148 OF THE ACT. LD. AR OF THE ASSESSEE HAS SUBMITTED THAT IN THE CASE OF THE ASSE SSEE THE APPROVAL WAS GRANTED BY J CIT AS PER THE PERFORMA OF APPROVA L AT PAGE NUMBER 44 & 45 OF THE PAPER BOOK. THUS LD AR OF THE ASSESS EE HAS CONTENDED THAT REOPENING OF THE ASSESSMENT IS INVALID AS THE ASSESSING OFFICER HAD NO JURISDICTION TO PROCEED WITH THE REASSESSMENT WH EN THE APPROVAL WAS NOT GRANTED BY A COMPETENT AUTHORITY AS PROVIDED UN DER SECTION 151(1) ITA NO. 499/JP/2016 SH. MAHAVEER PRASAD GUPTA VS. DCIT 4 OF THE ACT. HE HAS REFERRED TO THE PROVISO TO SECTI ON 151(1) OF THE INCOME TAX ACT AND SUBMITTED THAT IN CASE THE ASSES SMENT IS REOPENED AFTER 4 YEARS FROM THE END OF THE ASSESSMENT YEAR T HEN THE APPROVAL FOR REOPENING OF THE ASSESSMENT IS REQUIRED TO BE GRANT ED BY THE CHIEF COMMISSIONER OR COMMISSIONER AS CASE MAY BE ON SATI SFACTION OF THE REGIONS RECORDED BY THE ASSESSING OFFICER THAT IT I S A FIT CASE FOR ISSUE OF NOTICE. SINCE IN THE CASE OF THE ASSESSEE REOPENING IS AFTER THE EXPIRY OF 4 YEARS FROM THE ASSESSMENT YEAR AND APPROVAL WAS G RANTED BY THE JS CIT AND NOT BY THE COMPETENT AUTHORITY AS PROVIDED UNDER SECTION 151(1) OF THE INCOME TAX ACT THEREFORE THE REOPENI NG UNDER SECTION 148 IS INVALID AND THE CONSEQUENTIAL REASSESSMENT I S VOID AB-INITIO. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DE CISION OF HONBLE JURISDICTION HIGH COURT HONORABLE JURISDICTION HIGH COURT IN CASE OF DHADHA EXPORTS VS ITO REPORTED IN 377 ITI 347. THUS LD. AR HAS SUBMITTED THAT WHILE CONSIDERING THE AN IDENTICAL I SSUE HONBLE JURISDICTION HIGH COURT HAS HELD THAT THE NOTICE IS SUED UNDER SECTION 148 AFTER 4 YEARS FROM THE ASSESSMENT YEAR WAS NOT VALI D AS THE APPROVAL WAS OBTAINED ONLY FROM JOINT COMMISSIONER AND THE E NTIRE PROCEEDINGS STOOD VITIATED FOR WANT OF COMPETENCE. THE LD AR HA S ALSO RELIED UPON A SERIES OF DECISIONS ON THIS POINT WHEREIN IT HAS BE EN HELD THAT THE NOTICE ITA NO. 499/JP/2016 SH. MAHAVEER PRASAD GUPTA VS. DCIT 5 ISSUED UNDER SECTION 148 AFTER 4 YEARS FROM THE END OF THE ASSESSMENT YEAR WITHOUT THE SANCTION OF CHIEF COMMISSIONER OR COMMISSIONER AS PER THE PROVISO TO SECTION 151(1) IS INVALID. HENCE TH E LD. AR OF THE ASSESSEE HAS CONTENDED THAT A NOTICE ISSUED UNDER S ECTION 148 WITHOUT OBTAINING THE SACTION OF THE CHIEF COMMISSIONER OR COMMISSIONER IS NOT VALID AND CONSEQUENTLY THE ENTIRE REASSESSMENT PROC EEDINGS ARE VOID AND NOT SUSTAINABLE IN LAW. 4. ON THE OTHER HAND LD. DR HAS SUBMITTED THAT THIS PLEA HAS NOT BEEN RAISED BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW AND THEREFORE THIS CANNOT BE RAISED FIRST TIME AT THIS STAGE. HE HAS FURTHER CONTENDED THAT THE ASSESSEE RAISED THE OBJECTION AGAINST THE REOPENING OF THE ASSESSMENT ON THE GROUND THAT ASSESSING OFFICER ISS UED THE NOTICE UNDER SECTION 148 AND INITIATED THE PROCEEDINGS OF REASSE SSMENT WITHOUT ANY BASIS AND WITHOUT AUTHORITY OF LAW. THEREFORE THE OBJECTION OF THE ASSESSEE BEFORE THE CIT(APPEALS) WAS THAT THE REASO NS RECORDED BY THE ASSESSING OFFICER FOR REOPENING OF THE ASSESSMENT A RE NOT SUFFICIENT TO BELIEVE THAT THE INCOME ASSESSABLE TO TAX HAS ESCAP ED ASSESSMENT. HE HAS RELIED UPON THE IMPUGNED ORDER OF THE CIT (APPE ALS). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS CHAL LENGED THE VALIDITY OF ITA NO. 499/JP/2016 SH. MAHAVEER PRASAD GUPTA VS. DCIT 6 REOPENING OF ASSESSMENT ON THE GROUND THAT A NOTICE ISSUED UNDER SECTION 148 AND REASONS RECORDED BY THE AO FOR REOP ENING OF THE ASSESSMENT ARE NOT VALID AS THE NECESSARY APPROVAL WAS NOT OBTAINED FROM THE CHIEF COMMISSIONER OR COMMISSIONER BUT THE APPROVAL WAS OBTAINED FROM JOINT COMMISSIONER. THEREFORE WHEN T HE APPROVAL WAS NOT GRANTED BY THE COMPETENT AUTHORITY THEN THE NOT ICE ISSUED UNDER SECTION 148 IS INVALID. THERE IS NO QUARREL ON THE POINT THAT IN CASE OF REOPENING OF ASSESSMENT UNDER SECTION 148 OF THE IN COME TAX ACT AFTER EXPIRY OF 4 YEARS FROM THE RELEVANT ASSESSMENT YEAR THE APPROVAL OF REASONS RECORDED BY AO IS REQUIRED TO BE GRANTED BY THE COMMISSIONER AOR CHIEF COMMISSIONER AS CASE MAY BE AS PER THE PR OVISIONS OF SECTION 151(1) OF THE INCOME TAX ACT AS EXIST AT THE RELEVA NT POINT OF TIME. THE NOTICE ISSUED UNDER SECTION 148 AFTER 4 YEARS WITH THE APPROVAL OF JOINT COMMISSIONER IS NOT A VALID NOTICE BECAUSE THE COMP ETENT AUTHORITY TO APPROVE THE REASONS RECORDED BY AO IS THE COMMISSIO NER OR CHIEF COMMISSIONER ON HIS SATISFACTION THAT THE INCOME AS SESSABLE TO TAX AS PROPOSED BY THE ASSESSING OFFICER HAS ESCAPED ASSES SMENT AFTER GOING THROUGH THE RELEVANT RECORD AND THE REASONS RECORDE D BY THE ASSESSING OFFICER. WITHOUT THE APPROVAL OF THE COMPETENT AUTH ORITY THE AO IS NOT EMPOWERED TO ISSUE THE NOTICE UNDER SECTION 148 AND THEREFORE SUCH ITA NO. 499/JP/2016 SH. MAHAVEER PRASAD GUPTA VS. DCIT 7 NOTICE ISSUED UNDER SECTION 148 IS INVALID AND CONS EQUENTIAL PROCEEDINGS UNDER SECTION 147 READ WITH SECTION 143 VOID FOR WANT OF JURISDICTION AND NOT SUSTAINABLE UNDER LAW. IN THE CASE OF THE ASSESSEE HERE IS NO DISPUTE ABOUT THE FACT THAT THE NOTICE UNDER SECTION 148 ISSUED ON 20TH MARCH 2013 WAS AFTER THE EXPIRY OF 4 YEARS FROM THE ASSESSMENT YEAR UNDER CONSIDERATION AND THE ORIGINA L ASSESSMENT WAS ALSO FRAME UNDER SECTION 143(3) OF THE ACT. THEREFO RE ON PRINCIPLE WE FIND MERITS IN THE CONTENTION OF THE ASSESSEE HOWEV ER NEITHER THIS ISSUE WAS RAISED BEFORE THE AUTHORITIES BELOW NOR IT WAS ADJUDICATED. WE FIND THAT THOUGH THE ASSESSEE RAISED AN OBJECTION AGAINS TTHE NOTICE ISSUED UNDER SECTION 148 OF THE ACT AND CONSEQUENTIAL REAS SESSMENT COMPLETED UNDER SECTION 147 READ WITH SECTION 143(3 ) OF THE ACT HOWEVER IT WAS BASED ON ENTIRELY A DIFFERENT PLEA AND GROUND THAT THE ASSESSING OFFICER WAS HAVING NO REASON TO BELIEVE T HAT THE INCOME ACCESSIBLE TO TAX ADD ESCAPED ASSESSMENT. THE GROUN DS RAISED BY THE ASSESSEE BEFORE THE CIT(APPEALS) ARE REPRODUCED AS UNDER:- 1) THAT ON FACTS AND IN CIRCUMSTANCES OF CASE THE L EARNED ASSESSING OFFICER GROSSLY ERRED AND ACTED ILLEGALLY IN ISSUING NOTICE U/S 148 OF THE ACT AND FINALIZING ASSESSEE U/S 147/ 143(3) OF THE ACT. 2) THAT ON FACTS AND IN CIRCUMSTANCES OF CASE ADDIT ION OF A SUM OF RS. 48 11 521/- ON ACCOUNT OF ALLEGED BROKERAGE RECEIPT IS ABSOLUTELY ILLEGAL ARBITRARY AND WITHOUT ANY BASI S. ITA NO. 499/JP/2016 SH. MAHAVEER PRASAD GUPTA VS. DCIT 8 3) ASSESSEE CRAVES INDULGENCE TO ADD DELETE MODIF Y OR ALTER ANY GROUNDS OF APPEAL ON OR BEFORE HEARING. 6. WE FURTHER NOTE THAT EVEN NO SUCH ARGUMENTS AND CONTENTIONS WAS RAISED BY THE ASSESSEE AS APPARENT FROM THE IMP UGNED ORDER OF CIT(APPEALS). THERE IT IS APPARENT THAT ASSESSEE DI D NOT RAISED THIS PARTICULAR CONTENTION AND PLEA OF INVALIDITY OF TH E NOTICE ISSUED UNDER SECTION 148 FOR WANT OF THE APPROVAL OF THE COMPETE NT AUTHORITY UNDER SECTION 151(1) OF THE ACT. SINCE THIS ISSUE HAS BE EN RAISED BY THE ASSESSEE FIRST TIME BEFORE THE TRIBUNAL AND GOES TO THE ROOT OF THE MATTER BUT SUBJECT TO THE VERIFICATION OF THE FACT THAT THE APPROVAL WAS OBTAINED FROM JOINT COMMISSIONER AND NOT FROM THE C HIEF COMMISSIONER OR COMMISSIONER AS PROVIDED UNDER SECTION 151(1) OF THE ACT. ACCORDINGLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE WE SET ASIDE THIS ISSUE TO THE RECORD OF THE CIT(APPEALS) FOR CONSIDERATION AND ADJUDICATION OF THIS GROUND OF THE ASSESSEE. 7. SINCE THE LEGAL ISSUE RAISED BY THE ASSESSEE IS SET ASIDE TO THE RECORD OF THE CIT(APPEALS) WHICH GOES TO THE ROOT O F THE MATTER THEREFORE WE DO NOT PROPOSE TO GO INTO THE MERITS OF THE ADDITION AS RAISED IN THE GROUND NUMBER 2 OF THE APPEAL WHICH I S LEFT OPEN. ITA NO. 499/JP/2016 SH. MAHAVEER PRASAD GUPTA VS. DCIT 9 IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13/11/2017 SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/11/2017. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. MAHAVEER PRASAD GUPTA 85 NEMI NAGAR VAISHALI NAGAR JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- DCIT. CIRCLE-7 JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 499/JP/2016} VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ@ ASST. REGISTRAR