ITA No.5950/Del/2012
Asstt.Year: 2004-05
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES `E' NEW DELHI
BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT
AND
SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER
ITA NO. 5950/DEL/2012
ASSTT.YEAR: 2004-05
Income Tax Officer, vs Suman Garg,
Ward-26(1), V-212, Rajouri Garden,
D-Block, New Delhi.
Vikas Bhawan, (PAN: AESPG3112R)
New Delhi.
C.O. No. 162/Del/2013
(IN ITA NO. 5950/DEL/2012)
ASSTT.YEAR: 2004-05
Suman Garg, vs Income Tax Officer,
New Delhi. Ward 26(1),
New Delhi.
(Appellant) (Respondent)
Appellant by: Shri G.S. Kohli, CA
Respondent by: Shri P. Dam Kanunjha, Sr. DR
O R D E R
PER CHANDRAMOHAN GARG, J.M.
The above captioned appeal has been filed by the revenue against the
order of the CIT(A)-XXIV, New Delhi dated 17.09.2012 in Appeal No.
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ITA No.5950/Del/2012
Asstt.Year: 2004-05
259/10-11 for AY 2004-05. The assessee has also filed Cross Objection to
the impugned order of the CIT(A).
ITA NO. 5950/D/2012
2. The revenue has raised following sole ground in this appeal:-
"On the facts and circumstances of the case, ld. CIT(A)
has erred in-
(i) Quashing the order on technical ground of AO by not
appreciating the fact that the assessee had neither during the
assessment proceedings with the ITO Gobindgarh nor before
the AO concerned had challenged the proceedings u/s
147/148 of the I.T. Act, 1961."
3. Apropos aforementioned ground, we have heard arguments of both
the sides. Ld. DR submitted that the CIT(A) has erred in quashing the
assessment order dated 27.12.2010 passed u/s 144/147 of the Income Tax
Act. Ld. DR further contended that the CIT(A) was not justified in ignoring
the fact that the assessee, neither during the assessment proceedings with
the ITO, Mandi Gobindgarh nor before the AO concerned, had challenged
the proceedings u/s 147/148 of the Act. Ld. DR finally prayed that the
impugned order of the CIT(A) may be set aside by restoring that of the AO.
4. Ld. AR replied that the first assessment u/s 144/147 was framed by
ITO Ward 26(1), New Delhi dated 30.11.2009 for AY 2004-05, making an
addition of Rs.2,50,000/- being accommodation entry received by the
appellant. The AR further submitted that the reasons for issue of notice u/s
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ITA No.5950/Del/2012
Asstt.Year: 2004-05
148 were recorded by the ITO, Mandi Gobindgarh who issued notice on
23.4.2010 after due approval. The AR further pointed out that the assessee
wrote a letter to ITO, Mandhi Gobindgarh dated 14.5.2010 pointing out to
him that she was a regular assessee of ITO Ward 26(1), New Delhi and
requested to shift the case to ITO Ward 26(1), New Delhi who had
jurisdiction over the appellant. Ld. AR has further drawn our attention
towards operative part of the impugned order and submitted that no new
notice u/s 144(8) of the Act was issued by ITO Ward 26(1), New Delhi and
no reasons were recorded u/s 147 of the Act and the AO straightway issued
notices u/s 142(1) and 143(2) of the Act and proceeded with the
assessment which was finalised on 27.12.2010. Ld. AR submitted that the
assessment was framed by ITO without acquiring jurisdiction by issuance
of notice u/s 148 of the Act which was an incurable defect and, therefore,
the CIT(A) was quite justified in quashing the notice u/s 148 of the Act.
5. On careful perusal of above submissions of both the sides and from
careful perusal of the impugned order, we note that the CIT(A) has allowed
appeal of the assessee quashing notice u/s 148 of the Act with following
conclusion:-
"4.2 In the present case, the first assessment u/s.
144/147 was framed by ITO Ward 26(1), New Delhi on
30.11.2009 for A.Y. 2004-05, making an addition of
Rs.2,50,000/- being accommodation entry received by the
appellant. Thereafter, the reasons for issue of notice u/s.
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ITA No.5950/Del/2012
Asstt.Year: 2004-05
148 were recorded by ITO, Mandi Gobindgarh who issued
the notice on 23.04.2010 after approval issued by Addl. ClT,
Range Mandi -Gobindgarh. Thereafter, the assessee wrote a
letter to ITO, Mandi Gobindgarh dated 14.05.2010, pointing
out to him that she was a regular assessee of ITO, Ward
26(1), New Delhi and requested him to shift the above case
to ITO, Ward 26(1), New Delhi who had jurisdiction over
the appellant. Accordingly, the case was transferred by ITO,
Mandi Gobindgarh to ITO Ward 26(1), New Delhi vide
letter No. ITO/Ward I/MGG/2010-11/13 dated 13.08.2010.
I have carefully perused the assessment records of the case
and found that no new notice u/s. 148 was issued by ITO
Ward 26(1), New Delhi. He also did not record any reasons
of his own. The AO straight-away issued notice u/s 142(1)
and u/s. 143(2) of the Act and proceeded with the
assessment. The assessment was finalized on 27.12.2010 for
A.Y. 2004-05 by ITO Ward 26(1), New Delhi.
4.3 Thus, it is seen that the facts of the instant case are
exactly similar to those of Rajender Prasad Gupta (supra)"
and Naseman Farms Pvt. Ltd. (supra). Notice u/s. 148 was
issued by ITO, Mandi Gobindgarh, who did not have
jurisdiction over the case. No notice u/s 148 was issued by
the jurisdictional ITO, Ward 26(1), New Delhi, who had
already completed the assessment once u/s. 144/147 of the
Act for A.Y. 2004-05 on 30.11.2009. Thus, the assessment
was framed by the jurisdictional ITO without acquiring
jurisdiction by issue of notice u/s. 148. This is an incurable
defect and therefore, the assessment framed by the AO
without issue of proper notice u/s. 148 is void ab-initio and
is therefore, quashed."
6. In view of above observations, findings and conclusion of the CIT(A),
we observe that the CIT(A) quashed notice u/s 148 of the Act issued by
ITO, Mandi Gobindgarh by holding that the assessment was framed by
jurisdictional ITO, Ward 26(1), New Delhi without acquiring jurisdiction by
issuance of notice u/s 148 of the Act which is an incurable defect. Ld. AR
could not place any material or fact before us to hold that the assessment
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ITA No.5950/Del/2012
Asstt.Year: 2004-05
was framed by the jurisdictional ITO after acquiring valid jurisdiction by
issuance of notice u/s 148, thus, we are unable to see any ambiguity,
perversity or any other valid reason to interfere with the impugned order
and we uphold the same. Accordingly, sole ground of the revenue being
devoid of merits is dismissed.
C.O. 162/Del/2013 of the assessee
7. Since by the earlier part of this order, we have dismissed the appeal
of the revenue against the order of the CIT(A) which quashed notice u/s
148 of the Act, therefore, C.O. of the assessee does not survive for detailed
adjudication on merits and we dismiss the same as infructuous in view of
above conclusion, as recorded above, dismissing the appeal of the revenue.
Accordingly, CO of the assessee is also dismissed as infructuous.
8. In the result, the appeal of the revenue as well as CO of the assessee
are dismissed.
Order pronounced in the open court on 27.1.2015.
Sd/- Sd/-
(G.D. AGRAWAL) (CHANDRAMOHAN GARG)
VICE PRESIDENT JUDICIAL MEMBER
DT. 27th JANUARY 2015
`GS'
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ITA No.5950/Del/2012
Asstt.Year: 2004-05
Copy forwarded to:-
1. Appellant
2. Respondent
3. C.I.T.(A)
4. C.I.T. 5. DR
By Order
Asstt. Registrar
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