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ITO, Ward 48 (1), New Delhi. Vs. M/s. Yashodhara Oberoi, 206, Jal Darshan Gandhi, Gandhi Gram, Juhu, Mumbai 400 009.
June, 04th 2015
                  (DELHI BENCH `H' : NEW DELHI)


                            ITA No.3267/Del./2013
                       (ASSESSMENT YEAR : 2009-10)

ITO, Ward 48 (1),                 vs.           M/s. Yashodhara Oberoi,
New Delhi.                                      206, Jal Darshan Gandhi,
                                                Gandhi Gram, Juhu,
                                                Mumbai ­ 400 009.

                                                       (PAN : AAIPO0559N)

      (APPELLANT)                                      (RESPONDENT)

                 ASSESSEE BY : Shri A.K. Srivastava, CA
               REVENUE by : Shri P. Dam Kanunjna, Senior DR

                     Date of Hearing       : 02.06.2015
                     Date of Pronouncement : 03.06.2015



      This appeal, at the instance of the revenue, is directed against the order of the

Commissioner of Income-tax (Appeals)-XXX, New Delhi dated 15.03.2013.              The

relevant assessment year is 2009-10.

2.    The assessee, an individual, filed her return of income on 30.07.2009, declaring

income at Rs.2,95,400/-. On noticing inadvertent mistake in the return, the assessee

revised the return on 13.07.2010 by filing a revised return, declaring income at

Rs.41,31,510/- and claimed a refund of Rs.25,892/-. The return filed on 30.07.2009
                                                                  ITA NO.3267/Del/2013

was selected for scrutiny under CASS, based on AIR information. The Income Tax

Officer, Ward 48(1), New Delhi, issued notice u/s 143(2) of the Act on 20.08.2010.

The assessee, who resides at Mumbai, forwarded the notices to her counsel at New

Delhi for necessary compliance. Apparently there was no compliance and this led to

an assessment u/s 144 of the Act, making additions of Rs.1,03,71,149/- and

Rs.1,00,000/-. This fact came to the notice of the assessee when assessment order was

received.    In framing the assessment, the Assessing Officer has totally ignored the

revised return filed on 13.07.2010, i.e. before the issuance of notice u/s 143(2).

Income has been computed by starting with the income as per original return.

3.    Aggrieved the assessee preferred an appeal before the CIT (A) challenging the

jurisdiction of the ITO, Ward 48(1) to frame the assessment also. The assessee vide

letter dated 22.02.2013 submitted that the Assessing Officer had no jurisdiction to

proceed with the assessment, based on return filed on 30.07.2009 and ignoring the

revised return filed on 13.07.2010 and the assessment framed is null and void. It was

also submitted by the assessee that when revised return was filed the original return

was totally substituted and revised return alone had to be taken into consideration in

completing the assessment.     In this regard, he relied on a number of judicial

pronouncements before the CIT (A). The ld. CIT (A) in exercise of his powers u/s

250(4) of the Act directed that submissions be made on merits and also directed that

evidences in support of the assessee's contention be filed, to enable him to carry out

investigation himself. In compliance with the directions of the ld. CIT (A), evidences

in support were filed by the assessee vide letter dated 01.03.2013 giving complete

details of investments in units of Mutual Funds duly supported with copies of
                                                                   ITA NO.3267/Del/2013

statements issued by Mutual Funds and Bank Statements of the assessee and her

husband and son. Copies of acknowledgments of their Income Tax returns were also

filed. The ld. CIT (A), accepting the assessee's contentions, held that the Income Tax

Officer had no jurisdiction to proceed with the assessment on the basis of the original

return and ignoring the revised return. Ld. CIT (A) deleted the additions on merits


4.      The revenue, being aggrieved, is in appeal before us by taking the following

grounds of appeal :-

        "On the facts and circumstances of the case in law, the Ld. CIT (A)
        has erred in :
        1.    Deleting the addition of Rs.10371149/- as rightly made by the
        AO on account of investment in mutual funds, which remained

        2.     In admitting the additional evidences under Rule 46A of the
        I.T. Act, 1962 without providing opportunity to the AO as required
        under sub Rule 3 of Rule 46A."

5.      At the outset of the hearing, ld. Counsel for the assessee submitted that the

revenue has not come up in appeal on the issue of jurisdiction, therefore, the appeal

filed by the revenue is defective and pleaded that the same be dismissed.

8.      We have heard the rival submissions and perused the material on record. On

perusal of material placed on record, we find that the CIT (A) has decided that the

ITO has no jurisdiction to proceed with the assessment on the basis of original return

and ignoring the revised return and the CIT (A) has deleted the addition on merits

also. The relevant finding of the CIT (A) is reproduced as under :-
                                                                       ITA NO.3267/Del/2013

        "In view of the cases cited above, I hold that the Income Tax Officer
        had no jurisdiction to proceed with the assessment on the basis of
        original return and ignoring the revised return. Even on merits after
        examination of the evidences I find that the investments as listed in
        the AIR have been made by the assessee and her family members.
        Investments to the extent of Rs.42,21,149/- only have been made by
        the assessee. The balance investments have been made by her family
        members and her name appears only as joint holder. Source of all
        investments have been duly explained from the bank statements. Even
        on merits no addition Rs.1,03,71,149/- is called for and has to be

In view of the above, we hold that the revenue's appeal is defective as the revenue has

not come up in appeal on the issue of jurisdiction. Accordingly, we dismiss the appeal

on this issue itself.    As we have already dismissed the appeal on the issue of

jurisdiction, hence we are not adjudicating the appeal on merits.

9.      In the result, the appeal filed by the revenue is dismissed.

     Order pronounced in open court on this day of 3rd June, 2015.

         Sd/-                                                  sd/-
    (N.K. SAINI)                                         (GEORGE GEORGE K.)
ACCOUNTANT MEMBER                                         JUDICIAL MEMBER

Dated the 3rd day of June, 2015

Copy forwarded to:
     4.CIT(A)-XXX, New Delhi.
     5.CIT(ITAT), New Delhi.
                                                                       AR, ITAT
                                                                       NEW DELHI.
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