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Inder Mohan Khurana, 4/5917, Dev Nagar, Karol Bagh, New Delhi. Vs. ITO, Ward-51(2), Room No.-1411, Civic Centre, New Delhi-110002.
September, 09th 2019

Referred Sections:
Section 124(1)(b),
Section 148 of the Income tax Act.”
Section 124(5) of the Income Tax Act
Section 64 of 1922Act
Section 143(3) of the Act

Referred Cases / Judgments:
Kanjimal & Sons Vs,. CIT (138 ITR 039-Del).
Dushyant Kumar Jain vs DCIT [2016] 66 taxmann.com 126
Dr.Mrs. K.B.Kumar vs ITO [2011] 12 taxmann.com 318 (Delhi) & 47 SOT 192;
ITO vs Krishan Kumar Gupta [2008] 16 DTR 1 (Delhi-Trib.);
Ranjeet Singh vs Asstt. CIT [2009] 120 TTJ (Delhi) 517; and
CIT vs Smt Anjali Dua [2008] 174 Taxman 72 (Delhi)

              IN THE INCOME TAX APPELLATE TRIBUNAL
                   (DELHI BENCH: `C': NEW DELHI)

              BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER &
            SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER

                        ITA No:- 6553/Del/2016
                      (Assessment Year: 2007-08)

   Inder Mohan Khurana,      ITO,
   4/5917, Dev Nagar,     Vs Ward-51(2), Room No.-1411,
   Karol Bagh, New Delhi.    Civic Centre, New Delhi-110002.
   PAN-AAAPK7219D
   APPELLANT                 RESPONDENT
   Appellant by        Shri S.D.Kapila, Adv. & Sh.R.R.Maurya, Adv.
   Respondent by       Shri Janardan Das, Sr.DR

                                  ORDER

PER ANADEE NATH MISSHRA, AM

[A].   This appeal has been filed by the assessee against the order

dated 20.10.2015 passed by Learned Commissioner of Income

Tax(Appeals)-17, New Delhi [in short "Ld.CIT(A)"] pertaining to

assessment year 2007-08.         The assessee has raised following

grounds of appeal:-


       1.     "On the facts & in the circumstances of the case, the
       Ld.CIT(Appeal) erred in holding that the Assessing Officer had
       valid jurisdiction in issuing the impugned notice u/s 148 of the
       Act.
       2.     The Ld.CIT(A) erred in law and on facts in holding that
       the proceedings u/s 147 and the consequential assessment
       order are not bad in law and therefore a nullity.
                                                        ITA No:- 6553/Del/2016
                                                     (Assessment Year: 2007-08)


          3.      That the Ld.CIT(Appeal) erred in law and on fact was not
          acceptable and therefore the addition of Rs.66,50,000 was
          correctly made by the Ld. Assessing Officer.
          4.      That the Ld.CIT(A) erred in rejecting the confirmation
          letter affidavit filed by Mr. Solo with Assessing Officer without
          examining Mr. Solo who had presented himself for this
          purpose.
          5.      That the addition of Rs.66,50,000/- made u/s 68 by the
          Ld.AO on the basis of suspicion and surmises may kindly be
          deleted."


[B].      Return of income was originally filed by the assessee on

30.10.2007 in the office of ITO, Ward-33(4), New Delhi. This return

was processed u/s 143(1) of the Income Tax Act, 1961 [in short

"Act"].        On 31.03.2014, notice u/s 148 of the Act was issued by

ITO, Ward-24(3), New Delhi, for initiating proceedings u/s 147 of

the Act after recording reasons to believe, that income of the

assessee had escaped the assessment.             The jurisdiction of ITO,

Ward-24(3), New Delhi to issue aforesaid notice dated 31.03.2014

u/s 148 r.w.s. 147 of the Act was objected to by the assessee,

contending that he had been filing his return of income with ITO,

Ward-33(1), New Delhi.          Therefore, the assessee contended before

ITO, Ward-24(3), New Delhi that notice issued by ITO, Ward-24(3),

New Delhi was not valid, as he did not have jurisdiction over the

case.      The objection of the assessee was rejected by ITO, Ward-



                                                                       Page | 2
                                                   ITA No:- 6553/Del/2016
                                                (Assessment Year: 2007-08)


24(3), New Delhi vide letter dated 01.08.2014 in the following

words:-


            "Kindly refer to the objections raised by your AR vide his
      letter dated 28.04.2014 for issuance of notice u/s 148 of the
      Income tax Act.
            In this connection, the main objection raised by your AR
      is on the ground that the assessee has been filing his income
      tax return with ITO, Ward 33(1), New Delhi and that this office
      has no jurisdiction to issue the Notice u/s 148 of the Income
      Tax Act. In this connection, your goodself is informed that the
      notice u/s 148 of the Income tax Act was issued after
      obtaining prior approval of the competent authority in terms of
      relevant section of the Income tax Act. Further, the territorial
      jurisdiction over the Sainik Farm Area, where the assessee
      resides falls in this Ward and as per section 124(1)(b), the
      notice was rightly issued by an officer who is competed to do
      so. Thus, the notice u/s 148 has been issued by an assessing
      officer who is competed to do so. Thus, the notice u/s 148 has
      been issued by an assessing officer who is competent to do so.
      Accordingly, there is no merit in the objections so raised and
      the same are hereby dismissed. You are directed to file your
      return of income immediately in terms to provisions of section
      148 of the Income tax Act."


[B.1]. The assessee petitioned vide letter dated 20.08.2014 of Joint

Commissioner of Income tax, Range-24, New Delhi requesting for

determining the jurisdiction of the assessee. The relevant portion of

the aforesaid petition is reproduced hereunder:-


                                                                  Page | 3
                                                 ITA No:- 6553/Del/2016
                                              (Assessment Year: 2007-08)


"We file this letter before your goodself for the determination of
the lawful jurisdiction of the abovementioned assessee and for
identification of the assessing officer having jurisdiction over
the assessee.
FACTS:
1.     Mr. Inder Mohan Singh Khurana, an assessee having
income from business, has been regularly running his business
operations from the premises 4/5917, Dev Nagar, Karol Bagh,
New Delhi 110 005.
2.     He has been regularly filing his income returns with
Ward 33(1), having jurisdiction over the abovementioned Karol
Bagh     address.    Copies     of   the   income        tax    return
acknowledgements for the last three years are attached
herewith in support of this statement. Also attached is the
income tax return acknowledgement for AY 2007-08 which
was also filed with Ward 33.
3.     On 1.4.2014, the assessee received a notice U/s 148,
reopening his case for AY 2007-08. Such notice was sent by
the Income Tax Officer, Ward 24(3). Copy of the notice is
attached herewith.
4.     The assessee filed his objection to such notice issued on
28.4.2014, on the ground that the same was issued without
jurisdiction and was therefore invalid and non est. Copy of the
objection filed is also submitted herewith.
5.     The ITO, Ward 24(3), vide his letter Dt. 1.8.2014,
conveyed his non-acceptance of the assessee's contention of
incorrect jurisdiction. Copy of such letter is attached.
CONTENTIONS:
1.     For the past many years, the assessee has regularly
been assessed in Ward 33(1) which includes Karol Bagh,
where he carries on his business. Tins is also In accordance
                                                                Page | 4
                                              ITA No:- 6553/Del/2016
                                           (Assessment Year: 2007-08)


with Section 124(1)(a) which provides that in respect of persons
carrying on business or profession, an assessing officer will
exercise jurisdiction `if 'the place at which he carries on his
business or profession is situate within the area..'. Thus in
accordance with the law, the jurisdiction of the assessee lies
with Ward 33(1).
2.    The Ld. ITO has supported his jurisdiction over the
assessee by basing his decision       on    Section       124(l)(b).
However, this section applies to persons other than those
carrying on business or profession. For business assessees,
the jurisdiction is decided vide Section 124(1)(a). Adoption of
Section 124(l)(b) in case of business assessee's too will lead to
an absurd situation where an assessee will simultaneously
fall under the jurisdiction of two assessing officers. The Ld.
ITO's action of justifying his jurisdiction over the assessee on
the basis of Section 124(1)(b) leads to precisely such a
situation and is thus incorrect.
3.    Even Section 124(5) of the Income Tax Act does not come
to the aid of the Department to allow jurisdiction over the
assessee to Ward 24(3) as such section has limited application
in cases where the income tax officer and the assessee are
completely localized in a particular area and the income is also
earned in such area and nowhere else. This has been ruled by
the jurisdictional Delhi High Court in the case of Kanjimal &
Sons Vs,. CIT (138 ITR 039-Del).
      On the basis of the above it is contended that the Ld.
ITO, Ward 24(3) had no jurisdiction over the assessee and
thus was not his 'assessing officer' who had authority to issue
a notice U/s 143 upon him. Thus, as the notice is without
authority and lacked proper sanction, the same is invalid and
non est. Therefore it is requested that the assessment
                                                             Page | 5
                                                     ITA No:- 6553/Del/2016
                                                  (Assessment Year: 2007-08)


      proceedings U/s 148 initiated upon the assessee vide such
      notice be cancelled and ought to be dropped."


[B.2]. In the meantime, on 19.08.2014 itself, ITO, Ward-24(3), New

Delhi suo moto transferred the assessment record to ACIT, Circle-

33(1), New Delhi. Later, on 30.10.2014, notice u/s 142(1) of the

Act was issued by ACIT, Range-51(1), New Delhi in connection with

the proceedings u/ s 147 of the Act initiated through the aforesaid

notice u/s 148 of the Act dated 31.03.2014.           Vide letter dated

18.12.2014, the assessee objected to re-assessment proceedings

initiated vide aforesaid notice u/s 148 of the Act r.w.s. 147 of the

Act. The relevant portion of the aforesaid letter dated 18.12.2014 of

the assessee wherein the assessee objected to the proceedings, but

without prejudice filed return alongwith balance sheet            and P&L

A/c is reproduced as under:-


      "Dear Sir,
      In response to your letter dt.30/10/2014, the assessee has to
      state as follows:-
      1.    Notice u/s 148 (Dy. no. 1685 dt. 31.3.2014) was issued
      by Shri Gajendra Prashad, ITO ward 24(3). New Delhi.
      2.    On receipt of the said notice 1 appeared before ITO Ward
      24 (3) and informed him that the jurisdiction over my case was
      with ITO Ward 33(1) / (4). Consequentially, the notice u/s 148
      and   consequential    proceedings    are   illegal   and    without
      jurisdiction. I reiterate the same.








                                                                    Page | 6
                                                     ITA No:- 6553/Del/2016
                                                  (Assessment Year: 2007-08)


      3.     I have now received notice u/s 142(1) dt. 30.10.2014
      calling for return of income for A.Y. 2007-08. It is submitted
      that no valid notice u/s 142(1) calling for return of income for
      A.Y. 2007-08 can now be issued. The first para of the notice
      has not been struck off. The impugned notice u/s 142(1) is
      illegal also because it has been issued in pursuance of an
      invalid notice u/s 148 issued by Income-tax Officer ward 24(3),
      who never held jurisdiction over my case.
      4.     As per para 3 of the impugned notice, I submit that no
      annexure    is not endow! with the notice u/s 142(1). It may
      kindly be noted that the notice u/s 142(1.) does not specify
      any document to be produced by me.
      5.     Without prejudice to our main submissions questioning
      the jurisdiction and legality of the present proceedings, we, in
      the spirit of cooperation, submit the following documents for
      the year ending 31.3.2007:-
      i.   Copy of Return filed along with acknowledgement receipt
      dated 30.10.2007.
      ii. Copy of Balance Sheet & Profit & Loss Account.
      6.    I request that the return originally filed by me on
      30.10.2007 u/s 143(1) of the Act may be considered as return
      in pursuance of notice u/s 148.
      7.    It is once again requested that before proceeding further,
      you may please supply 'reasons' recorded by ITO Ward 24 (3)
      before issuing notice u/s 148 dated 31.3.2014."


[B.3]. Eventually, assessment order was passed by ITO, Ward-51(2),

New Delhi wherein an addition of Rs.66,50,000/- was made on

account of unexplained loan deemed as income of the assessee u/s

68 of the Act. Aggrieved, the assessee filed appeal before Ld.CIT(A).
                                                                    Page | 7
                                                     ITA No:- 6553/Del/2016
                                                  (Assessment Year: 2007-08)


In the appeal filed by the assessee before Ld.CIT(A), the assessee,

inter alia, took grounds against exercise of jurisdiction u/s 147

r.w.s. 148 of the Act, assumed by ITO, Ward-24(3), New Delhi vide

aforesaid notice issued on 31.03.2014 u/s 148 of the Act. These

grounds were rejected by Ld.CIT(A) vide para 4.1 of his appellate

order dated 20.10.2016.      The relevant portion of the order of

Ld.CIT(A) is reproduced for ease of reference:-


      4.1.   "I have carefully considered the facts and circumstances
      of the case and also the submission of the appellant but I do
      not find any force in the argument of appellant. The fact
      remains that as per territorial jurisdiction over the Sainik Farm
      area where the appellant was residing fails under the
      jurisdiction of ITO, Ward-24(3), New Delhi, therefore, as per
      sec.l24(l)(b) of the IT Act, the notice was rightly issued by the
      AO who was having jurisdiction over the case and who was
      competent to do so as per the IT Act. The case was reopened
      after recording the reasons and getting necessary approval
      from the JCIT, Range-24. Under these circumstances, since, the
      action u/s 147 was taken by the ITO, Ward-24(3), New Delhi
      who was having territorial jurisdiction over the case and before
      issuing notice u/s 148, due procedure as required under the
      Income Tax Act was followed, therefore, I do not find any
      infirmity in the AO's order in reopening the case and issuance
      of notice u/s 148 of the IT Act. It is pertinent to the mention
      here that on receipt of notice u/s 148, objections were raised
             by the appellant which were dealt with by the AO and a
      letter was communicated to the appellant with        regard        to
      rejection of objections raised. After restructuring, the case was

                                                                    Page | 8
                                                                ITA No:- 6553/Del/2016
                                                             (Assessment Year: 2007-08)


       transferred to the concerned AO of Range-51, New Delhi. The
       copies of reasons recorded were also provided to the appellant.
       In view of above discussion, I find that there was no
       procedural lapses with regard to reopening the case, therefore,
       the appeal on these grounds is dismissed."


[B.4]. Ld.CIT(A) also rejected the grounds taken by the assessee on

the merits of the aforesaid addition of Rs.66,50,000/-. Eventually,

vide the aforesaid appellate order dated 20.10.2016, Ld.CIT(A)

dismissed the assessee's appeal. Aggrieved again, the assessee has

filed this present appeal before Income Tax Appellate Tribunal (in

short "ITAT").


[C].   In the grounds of appeal raised by the assessee in the present

appeal, the first two grounds are against assumption of jurisdiction

by the Assessing Officer, u/s 147 of the Act vide aforesaid notice

dated 31.03.2014 issued u/s 148 of the Act. The remaining three

grounds in the present appeal before us in ITAT are on the merits of

the aforesaid addition amounting to Rs.66,50,000/-. In the course

of the appellate proceedings in ITAT, following papers were filed

from the assessee's side:-


 1.     Income tax return dated 30.10.2007 filed with jurisdictional AO Ward 33(4),New
        Delhi
 2.     Reasons recorded by AO for issuance of notice u/s 148 Ward 24(3) New Delhi
 3.     Notice u/s 148 dated 31.3.2004 issued by AO Ward 24(3) New Delhi
 4.     Assessee letter dated 15.04.2014 addressed to the AO Ward 24(3) for providing
        the copy of reason recorded
 5.     Assessee filed 'Objections' dt. 28.04.2014 with AO ward 24(3) on jurisdiction
        along with return for last three year
                                                                                 Page | 9
                                                                     ITA No:- 6553/Del/2016
                                                                  (Assessment Year: 2007-08)

     6.    Assessee letter dated 01.05.2014 before the AO along with copy of letter dated
           28.04.2014 challenging of jurisdiction of AO ward 24(3).
     7.    Notice u/s 142(1) dated01.05.2014 issued by AO Ward 24(3)
     8.    Assessee letter dated 13.05.2014 before AO Ward 24(3) annexing copy of letter
           dated 28.04.2014 challenging jurisdiction (Sr. No. 5)
     9.    Assessing Officer Ward 24(3) Order dated 01.08.2014 rejecting objection.
     10.   Assessee petition dated 25.08.2014 before JOT Range 24 for determination of
           jurisdiction over the assessee annexing Return for last three years filed with ITO
           Ward 33(4) New Delhi. Notice dt. 31.03.2014 u/s 148 Objections dated
           28.04.2014 filed with AO Ward 24(3) (Sr. no. 5) Assessing officer Ward 24(3)
           order dated 01.08.2014 rejecting objections (Sr. no. 9)
     11.   Notice u/s 142(1) dated 30.10.2014 issued by ACIT Circle 51(1) for first time.
     12.   Assessee reply dated 18.12.2014 before ACIT 51(1) New Delhi along with Return,
           balance sheet and profit and loss account
     13.   Notice u/s 143(2) dated 18.12.2014 issued by Circle 51(1) New Delhi
     14.   Assessee submission dated 26.12.2014 filed with ACIT Circle 51(1)
     15.   Submission before ACIT Circle 51(1) New Delhi dated 11.02.2015 along with L1C
           premium receipt
S. No.     Particulars
1.         Sequence of event
2.         Dushyant Kumar Jain v. Dv. CIT ^ 381 ITR 428.(Del.)
3.         Dr. Mrs. K.B. Kumar v. Income-tax Officer [2011] 12 taxmann.com 318 (Delhi) &
           47 SOT 192
4.         Smt. Prabhavati S. Shah r. CIT 231 ITR 1 (Bom.)
5.         CIT v. Navodaya Castles Pvt. Ltd. 367 ITR 306 (Del.)
6.         Sona Electronic Co. v. CIT 152 ITR 507(Del).
7.         Abhishek Jain v. Income Tax Officer 405 ITR 1 (Del.)
8.         Padamsundara Rao (DECD) and Others v. State of Tamilnadu and Others
           [2002] 255 ITR 147(S.C)
9.         Returns & Jurisdiction
10.        Sardar Baldev Sing v. CIT 40 ITR 605(S.C)
11.        Section 64 of 1922Act



Sr. No.             Particulars
1.                  Assessment Order for A.Y. 2001-02
2.                  Assessment Order for A.Y. 2006-07
3                   Letter dt. 28.06.2016 filed with CIT(A), assessee wiling to
                    produce Mr. Solo for examination.
4.                  Notification regarding New Jurisdiction of Income- tax in Delhi
                    w.e.f. 15.11.2014.
5.                  Rohtak & Hissar District Electricity Supply Co. v. CIT 128 ITR
                    52(Del)[HCl


[C.1]. Before us, Ld. Counsel for the assessee contended that the

jurisdiction over the assessee vested in ITO, Ward-33(4), New Delhi


                                                                                    Page | 10
                                                          ITA No:- 6553/Del/2016
                                                       (Assessment Year: 2007-08)


at the time when [on 31.03.2014] the aforesaid ITO, Ward-24(3),

New Delhi issued the aforesaid notice dated 31.03.2014 under

section 148 of the Act for initiating proceedings u/s 147 of the Act.

He further contended that original return was filed by the assessee

on 30.10.2007 with the aforesaid ITO, Ward-33(4), New Delhi; and,

that on        30.10.2007 the return was also processed in the

jurisdiction of ITO, Ward-33(4), New Delhi, u/s 143(1) of the Act.

He further       contended that no valid order by any Competent

Authority      was    in   existence   on    31.03.2014     transferring      the

jurisdiction of the assessee from ITO, Ward-33(4), New Delhi                   to

ITO, Ward-24(3), New Delhi. In view of these facts, Ld. Counsel for

the assessee submitted, that ITO, Ward-24(3), New Delhi had no

jurisdiction to initiate proceedings u/s 147 of the Act by issue of

notice dated 31.03.2014 u/s 148.             Ld. DR did not dispute these

facts contended by Ld. Counsel for the assessee and relied on the

orders of the AO and Ld.CIT(A).


[D].   We have heard both sides.            We have perused materials on

record. We have referred to judicial precedents mentioned in the

record. It is not in dispute that the jurisdiction over the assessee

vested    in   ITO,    Ward-33(4),     New    Delhi,   at   the   time     when

[on 31.03.2014] the aforesaid ITO, Ward-24(3), New Delhi issued

the aforesaid notice dated 31.03.2104 under section 148 of the Act

for initiating proceedings u/s 147 of the Act.              It is also not in

                                                                         Page | 11
                                                  ITA No:- 6553/Del/2016
                                               (Assessment Year: 2007-08)







dispute, that original return was field by the assessee on

30.10.2007 with the aforesaid ITO, Ward-33(4), New Delhi.          It is

further not in dispute that on 30.10.2007 the return was also

processed in the jurisdiction of ITO, Ward-33(4), New Delhi, u/s

143(1) of the Act.   It is furthermore not in dispute that no valid

order by any Competent Authority was in existence on 31.03.2014

transferring the jurisdiction of the assessee from ITO, Ward-33(4),

New Delhi     to ITO, Ward-24(3), New Delhi. In any case, by

transferring the assessment records of the assessee to Circle-33(1),

New Delhi on 19.08.2014 the aforesaid ITO, Ward-24(3), New Delhi

has already, by necessary implication, admitted in effect that the

jurisdiction over the assessee did not vest in Ward-24(3), New Delhi.

In view of these facts, we are of the view that ITO, Ward-24(3), New

Delhi lacked jurisdiction to issue aforesaid notice u/s 148 dated

31.03.2014 for initiation of proceedings u/s 147 of the Act. If an

Assessing Officer issued a notice to an assessee u/s 148 of the

Act for initiating proceedings u/s 147 of the Act, without

having jurisdiction over the assessee; such a notice is void ab

initio, and an assessment order passed in consequence thereof

is non est, devoid of any legal force. For these views, we take

support from the order of the Hon'ble High Court of Delhi in the

case of Dushyant Kumar Jain vs DCIT [2016] 66 taxmann.com 126

[Delhi] in which the Hon'ble High Court held as under:-

                                                               Page | 12
                                                       ITA No:- 6553/Del/2016
                                                    (Assessment Year: 2007-08)


      16.     ".............It is only the AO who has issued the original
      assessment order dated 13th April 2009 for AY 2007-08 under
      section 143(3) of the Act who is empowered to exercise powers
      under section 147/148 to re-open the assessment.               This is
      because he alone would be in a position to form reasons to
      believe that some income of that particular AY has escaped
      assessment..............."


[D.1]. We also take support from the following precedents in

support of our aforesaid view:-


      [i]     Dr.Mrs. K.B.Kumar vs ITO [2011] 12 taxmann.com 318 (Delhi)
              & 47 SOT 192;
      [ii]    ITO vs Krishan Kumar Gupta [2008] 16 DTR 1 (Delhi-Trib.);
      [iii]   Ranjeet Singh vs Asstt. CIT [2009] 120 TTJ (Delhi) 517; and
      [iv]    CIT vs Smt Anjali Dua [2008] 174 Taxman 72 (Delhi)


[D.2]. In view of the foregoing, we quash the aforesaid notice dated

31.03.2014 issued u/s 148 of the Act whereby proceedings u/s 147

of the Act were initiated; and we accordingly annul the aforesaid

assessment order dated 30.03.2015 passed u/s 148/143(3) of the

Act. Thus, Ground Nos. 1 and 2 in the present appeal filed by the

assessee are allowed.


[D.3]. In view of our decision to quash the aforesaid notice and

annul the assessment order, the remaining three grounds of appeal

relating to merits of the aforesaid addition of Rs.66,50,000/- do not

need to be adjudicated, being purely academic in nature. Hence,


                                                                    Page | 13
                                                     ITA No:- 6553/Del/2016
                                                  (Assessment Year: 2007-08)


Ground Nos. 3, 4 and 5 raised by the assessee in the present

appeal are not adjudicated.


[E].    For statistical purposes, the appeal of the assessee is allowed.


       Order pronounced in the open court on 06th day of September,

2019.


        Sd/-                                               Sd/-

(AMIT SHUKLA)                                 (ANADEE NATH MISSHRA)
JUDICIAL MEMBER                                ACCOUNTANT MEMBER

Dated: 06.09.2019
* Amit Kumar *

Copy    forwarded to:
  1.     Appellant
  2.     Respondent
  3.     CIT
  4.     CIT(Appeals)
  5.     DR: ITAT


                                              ASSISTANT REGISTRAR
                                                    ITAT NEW DELHI




                                                                  Page | 14


 

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