IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH `SMC' : NEW DELHI)
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
ITA NO. 6441/DEL/2018
(A.Y. 2014-15)
DEEPA CHAUHAN, VS. ITO, WARD 1(2),
C/O C.S. ANAND & CO., GHAZIABAD
104, PANKAJ TOWER,
10-LSC, SAVITA VIHAR,
NEW DELHI 92
(PAN : AFIPC8922J)
Assessee By SH. C.S. ANAND, ADV.
Revenue By SH. S.L. ANURAGI, SR. DR.
ORDER
Assessee has filed this appeal against the impugned order dated
27.3.2018 passed by Ld. CIT(A), Ghaziabad on the following grounds:-
"1. That on the peculiar facts of the case and under
the law, the Id. CIT(A) Ghaziabad had erred in holding
that "there is no need to pass an order u/s 127".
The ITO, Ward-35(3) New Delhi had transferred
the assessment folder to the ITO, Ward-1 (2)
Ghaziabad on his own, without support of the
order u/s 127 which was required to be passed by
the Ld. PCIT, Delhi-12, New Delhi.
2. That on the peculiar facts of the case and under
the law, the Id. CIT(A) Ghaziabad has erred in holding
that the grounds of appeal raised by the assessee
apropos jurisdiction, are not maintainable.
On getting the notice dt. 22.09.2015 issued by the
ITO, Ward-1(2) Ghaziabad u/s 143(2) in the name
of Deepak Chauhan-PAN: AIMPK3941L, the
assessee had instructed CA Vinesh Maheshwari to
meet the ITO, Ward-1 (2) Ghaziabad and apprise
him that the said notice did not belong to her.
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When CA Vinesh Maheshwari had apprised such
facts, the ITO, Ward-1(2) Ghaziabad had then &
there verified that PAN:AIMPK3941L belonged to
Tajinder Kaur and then assured him that he shall
be closing the matter.
3. That the assessment order passed by the Ld. ITO
Ward 1(2) Ghaziabad is liable to be annulled, because
no valid notice u/s 143(2) in the name of the assessee
was reached into the hands of the assessee.
4. That the assessment order passed by the Id. ITO
Ward 1(2) Ghaziabad is liable to be annulled, because
the Id. ITO Ward 1(2) Ghaziabad had not specified as to
whether he is passing the assessment order u/s 144 or
u/s 143(3).
The Ld. CIT(A) had not adjudicated this ground of
appeal.
5. That on the facts of the case and under the law,
the addition of Rs. 37,36,681/- made by the Id. ITa
ward 1(2) Ghaziabad deserves to be deleted firstly
because no particular provision of IT Act 1961 was
mentioned by the Ld. ITO, Ward-1(2) Ghaziabad, and
secondly because it was not the money of the assessee.
NOTE:
The assessee craves leave to amend/ modify
aforementioned grounds of appeal and/or to raise
additional ground(s) of appeal, at any time during the
course of appellate proceedings.
2. Facts narrated by the revenue authorities are not disputed by both
the parties, hence, the same are not repeated here for the sake of
convenience.
3. At the time of hearing Ld. Counsel for the assessee has reiterated
the contents of the Application for Condonation of Delay, which are
reproduced as under:-
"Sub: Application for "Condonation of Delay".
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It is respectfully submitted that the assessee had filed
an appeal against the assessment order dt. 28.12.2016
[passed by the Id. ITO, Ward- 1(2), Ghaziabad] in the
office of the Id. CIT(A)- Ghaziabad on 25.01.2017.
The appellate proceedings were attended by the
assessee's counsel, who had not only filed a sheet
containing the Revised Grounds of Appeal but also made
elaborate submissions as well as Rejoinder w.r.t. the Id.
A.O.'s Remand Report.
That on receiving a letter dt. 30.05.2018 from the
ITO, Ward-1(2) Ghaziabad containing subject "Reminder
Show Cause Notice u/s 271(1)(c) of the !T Act 1961 -
A.Y. 2014-15-Regarding", the assessee had noticed that
there was a reference of the appellate order dt.
27.03.2018. Thereafter vide letter dt. 08.06.2018 (filed
on 12.06.2018), the assessee had requested the Id.
C!T(A) Ghaziabad to serve the said appellate order upon
her.
That on the instructions of the Id. C!T(A)
Ghaziabad, the assessee had deposited Rs. 500/- on
04.07.2018. Thereafter vide letter dt. 05.07.2018, the
assessee had provided the proof of payment of Rs.
500/- and once again requested the Id. CIT(A)
Ghaziabad to supply the said appellate order.
That after taking the authorization letter of the
assessee in favour of Sh. Kamal Kant, the office of the
Id. CIT(A) Ghaziabad had handed over the appellate
order (which was lying in original in the appeal folder
maintained by them) to the said Sh. Kamal Kant (for &
on behalf of the assessee) on 30.07.2018.
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That since the assessee was not having the proof
of date of service of the order of the Id CIT(A)
Ghaziabad, the assessee had moved a letter in the
office of the Id.CIT(A) Ghaziabad on 18.09.2018 (copy
enclosed) requesting the Id CIT(A) Ghaziabad to provide
her proof that the appellate order was handed over on
30.07.2018. Despite repeated visits to the office of the
Id CIT(A) Ghaziabad for obtaining such proof, the
assessee could not obtain the same.
That to avoid any further delay in filing of appeal
before the Hon'ble ITAT, New Delhi, the assessee is
hereby filing the appeal now. In this process in
advertent delay of few days has occurred.
That the assessee is hereby moving this formal
application seeking condonation of delay in filling the
appeal.
In view of the above stated facts, circumstances
and the submissions, this Hon'ble Bench is requested to
kindly condone the inadvertent delay of few days.
Submitted."
3.1 Further, Ld. Counsel for the assessee has filed a letter dated
8.4.2019 of the assessee seeking permission for raising an additional
ground of appeal, which read as under:-
"Sub: Letter seeking permission for raising an additional
ground of appeal
It is respectfully submitted that against the order dt.
27.03.2018, passed by the Ld CIT(A) Ghaziabad in her case
for A.Y. 2014-15, the assessee had filed an appeal on
prescribed Form 36 before this estimated institution on
08.10.2018. Vide Form 36 read with its enclosure, being the
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sheet containing the Grounds of Appeal, the assessee had
raised 5 Grounds of Appeal.
While preparing the appeal, it has been recently noticed that
the Id CIT(A) had not adjudicated the Revised Grounds of
Appeal (which were raised by the assessee vide letter dt.
13.11.2017 (copy enclosed). A perusal of top para on page 4
of the impugned order reveals that the Id CIT(A) had
recorded as under:-
"During the course of appellate proceedings
appellant revised the grounds which were not duly
signed by the appellant vide dt. 13.11.2017 thus
revised grounds are not being adjudicated".
In this context, it is worth pointing out here that (i) the Id.
CIT(A) had herself sent the letter containing the Revised
Grounds of Appeal to the Ld A.O. for his comments; (ii) the
assessee had made submissions in the light of the Revised
Grounds of Appeal; and (iii) the Id A. O. had submitted his
report on the Revised Grounds of Appeal and the written
submissions made by the assessee.
It is respectfully stated that while preparing the Grounds of
Appeal as per Form 36, such vital fact had inadvertently gone
unnoticed by the assessee. The assessee is hereby seeking
permission of this Hon'ble Court to raise an additional grounds
of appeal, as under:-
That on the facts of the case, the Id CIT(A) has erred in
not adjudicating the Revised Grounds of Appeal, on the
incorrect finding of fact that the Revised Grounds of
Appeal were not signed by the assessee This Hon'ble
Courts is requested to kindly admit this additional
Grounds of Appeal."
This Hon'ble Courts is requested to kindly admit this
additional grounds of appeal.
3.2 In view of above, he requested to admit the aforesaid additional
ground and also requested to direct the Ld. CIT(A) to decide the revised
grounds of appeal first which were legal in nature, raised before the Ld.
CIT(A) vide signed letter dated 13.11.2017, however, the same were not
adjudicated by him in his appellate order. Therefore, he requested that
the said revised grounds in dispute may be set aside to the file of the Ld.
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CIT(A) with the directions to decide the same afresh, after giving
adequate opportunity of being heard to the assessee. In support of his
contention, the Assessee has also filed an Affidavit.
4. On the contrary, Ld. DR has not raised any serious objection on the
request of the Ld. Counsel for the assessee. He also relied upon the
orders of the authorities below.
5. I have heard both the parties and perused the records especially the
application for condonation of delay in filing the appeal; impugned order
passed by the Ld. First Appellate Authority; letter dated 13.11.2017
addressed to the Ld. CIT(A) seeking modification of grounds of appeal and
the letter dated 8.4.2019 seeking permission for raising an additional
ground of appeal and the Affidavit of the Assessee. I am of the considered
view that in view of the decision of the Hon'ble Supreme Court of India in
the case of NTPC Limited 229 ITR 383, the additional ground raised by
the assessee is purely legal ground and did not require fresh facts which
is to be investigated and goes to the root of the matter. In the interest
of justice, I admit the following additional ground and set aside to the file
of the Ld. CIT(A) to decide the same in accordance with law, after giving
adequate opportunity of being heard to the assessee.
"That on the facts of the case, the Ld CIT(A) has erred
in not adjudicating the Revised Grounds of Appeal, on
the incorrect finding of fact that the Revised Grounds of
Appeal were not signed by the assessee. This Hon'ble
Courts is requested to kindly admit this additional
Grounds of Appeal."
5.1 I further find that while deciding the appeal, Ld. CIT(A) has not
adjudicated the revised grounds of appeal which were raised by the
assessee vide letter dated 13.11.2017, a copy thereof was also produced
during the hearing, which are reproduced as under:-
"BEFORE THE COMMISSIONER INCOME TAX (APPEAL), GHAZIABAD
In re: Deepa Chauhan
6
C/o Arunketan & Associates
101 CSC DDA Market,
Pushpanjali, Delhi 110 092
PAN: AFIPC8922J
A.Y.: 2014-15
REF: Appeal against Assessment
order dated 28.12.2016 passed
u/s. 144/143(3).
Sub:- Application seeking modification
of grounds of appeal.
Madam,
It is respectfully submitted that the assessee had filed an appeal against
the assessment order dated 28.12.2016, which was passed u/s
144/143(3) by the Id. ITO ward 1(2) Ghaziabad. At the time of filing
appeal on Form No. 35, the assessee had raised few grounds of appeal on
her own. The assessee had lateron come in contact with an experienced
professional. with whom the matter relating to appeal was discussed. As
per his advice, the grounds of appeal raised originally needs to be
revised. Accordingly, the assessee is hereby seeking your honour's
permission to revise those grounds of appeal as under:
Revised Grounds of Appeal
1. That the assessment order passed by the Id. ITO Ward 1(2)
Ghaziabad is liable to be annulled, because no valid notice u/s 143(2) in
the name of the assessee was issued and served upon the assessee,
within the prescribed time limit.
2. That the assessment order passed by the Ld. ITO Ward 1(2)
Ghaziabad is liable to be annulled because the Ld. ITO Ward 1(2)
Ghaziabad had illegally assumed jurisdiction to make assessment in
the case of the assessee for AY 2014-15, in the absence of an order u/s
127 (which was required to be passes by the Id. Pro CIT Delhi-12, New
Delhi).
3. That the assessment order passed by the Id. ITO Ward 1(2)
Ghaziabad is liable to be quashed, because while passing the
assessment order the Id. ITO Ward 1(2) Ghaziabad had not specified
the particular section of the IT Act, 1961.
WITHOUT PREJUDICE
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4. That on the facts of the case and under the law, the addition of Rs.
37,36,681/- made by the Id. ITO ward 1(2) Ghaziabad deserves to be
deleted. In any case, the addition made at Rs. 37,36,681/- is highly
excessive."
5.2 After going through the Revised Grounds of appeal dated
13.11.2017, as aforesaid, filed by the Assessee before the Ld. CIT(A), I
find that it has been signed by the Assessee, but the Ld. CIT(A) has
wrongly rejected the same on a technical ground and did not adjudicate
the same. Therefore, in the interest of justice, I am accepting the appeal
of the assessee for statistical purposes by issuing the directions to the Ld.
CIT(A) to decide the aforesaid additional ground as well as revised
grounds of appeal raised before the Ld. CIT(A) vide letter dated
13.11.2017, after giving adequate opportunity of being heard to the
assessee.
6. In the result, the Appeal of the Assessee is allowed for statistical
purposes.
Order pronounced on this 23RD day of July, 2019.
Sd/-
(H.S. SIDHU)
JUDICIAL MEMBER
Dated the 23rd day of July, 2019
SRB
Copy forwarded to:-
1. Appellant
2. Respondent
3. CIT
4. CIT(A), New Delhi.
5. CIT(ITAT), New Delhi
AR, ITAT
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