SMT. SUNITA THUKRAL,DELHI vs. ITO, NEW DELHI

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ITA 3527/DEL/2014Status: DisposedITAT Delhi10 October 2017AY 2008-094 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the assessment order was not sustainable in law because the Assessing Officer failed to produce proof of service of notice under Section 143(2) of the Income Tax Act, despite multiple opportunities. The Tribunal relied on Supreme Court and Delhi High Court decisions emphasizing the mandatory nature of issuing and serving such notices.

What were the facts?

The assessee filed a return of income, but failed to provide bank statements when requested. The Assessing Officer (AO) obtained the statements and found significant cash deposits, making additions to income. The assessee's appeal to the CIT(A) was dismissed.

What were the issues?

Whether the assessment order is valid when the Assessing Officer fails to prove the service of notice under Section 143(2) within the prescribed limitation period.

Which sections of the Income-tax Act were involved?

Section 143(2),Section 292BB

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, DELHI BENCH “G”: NEW DELHI

Before: SHRI H.S.SIDHU & SHRI PRASHANT MAHARISHI

For Appellant: Shri VK Sabharwal, Adv, Shri Ankur Sethi, Adv
For Respondent: Shri SS Rana, CIT DR
Hearing: 21/09/2017Pronounced: 10/10/2017

O R D E R PER PRASHANT MAHARISHI, A. M. 1. This is an appeal filed by the assessee against the order of the ld CIT(A)-XXII, New Delhi dated 25.02.2014 for the AY 2008-09. 2. The assessee has raised the following grounds of appeal:- “1. That the Assessment order passed by the Assessing Officer and upheld by the Ld. CIT(A)-XII, are perverse to the law and to the facts of the case because of not appreciating that the first notice has not been issued and served to the appellant within the prescribed period of limitation as contained u/s143(2) Proviso of the Income Tax Act, 1961, as such the assessment framed becomes barred by limitation.

2. That no reasonable and proper opportunity of being heard, has since been afforded to the appellant by the Assessing Officer, prior to pass orders u/s 143(3) on 16.12.2010 because on 16.12.2010 the appellant appeared with the required information I documents to explain the source of cash deposits of Rs. 76,47,500/- in her SB A/c maintained with Oriental Bank of Commerce, Derawal Nagar, Delhi, but the counsel was informed, that the orders have already been passed, which the Ld. CIT(A) has not appreciated while passing the appellate orders.

3. That the assessment order passed is further not legal and tenable, because the material collected on the back of the appellant was never confronted for its rebuttal thereof by the Assessing Officer

4. That the presumption drawn by the Assessing Officer, about the entire deposits/ credits of Rs. 76,47,500/- in the SB A/c of the appellant was factually her income earned during the year, was entirely based upon his guess work only, as without the (Assessment Year: 2008-09) Sunita Thukral Vs. ITO support of any cogent material, which could ever confirm his opinion, therefore not tenable.

5. That the order passed is further frivolous and vexatious, as the Assessing officer has not taken into consideration the records taken into consideration the records available with him and filed produced also before him in the course assessment proceedings.

6.

That the Assessment order passed on 16.12.2010 is further not correct, as the same was completed on 16.12.2010 itself, which was the date of hearing provided to the appellant, for appearance and to discharge her evidence. These facts were also confirmed by the Assessing Officer is his orders passed on 16.12.2010.

7.

That on the facts and circumstances of the case, the CIT(A) was further not justified and had erred in law to adjudicate himself on the fresh material filed and placed upon records under Rule 46A of the Income Tax Rules, without affording any opportunity to the concerned Assessing Officer, though for which he was not empowered to.

8.

That the orders passed are further illegal and not tenable because the CIT(A) has adjudicated the fresh material filed and placed upon records under Rule 46A on 21.01.2014 and on 19.02.2014 on the back of the appellant, himself, without providing any opportunity to the concerned Assessing Officer as laid down under Rule 46A of the Income Tax Rule.

9.

That the decision given by the CIT(A) is further perverse to the law and to the facts of the case because he has not tried to understand the meaning and implication of the authenticity of the documents produced, filed and placed upon records under Rule 46A.

10.

That the order passed by the Assessing Officer and upheld by the CIT(A) is entirely based upon presumption and guesswork, without the support of any material, which could confirm and substantiate the action taken by both of them while passing the respective orders.

11.

That the orders passed and confirmed by the CIT(A) are further not tenable because he was himself having opinion, that the additions made u/s 68 by the Assessing Officer in this case was not justified.

Brief facts 3. The assessee is an individual who filed her return of income on 30.09.2008 declaring income of Rs. 142740/- . During the course of assessment the assessee asked to furnish the details of bank statement of accounts maintained by the assessee. The assessee did not file the same. The ld Assessing Officer obtained the bank statement from Oriental Bank of Commerce, Derawal Nagar, New Delhi and noted that assessee has deposited Rs. 7647500/- into her savings bank accounts on various dates. The assessee was asked opportunity to furnish the information but same were not furnished. Therefore, ld Assessing Officer passed the assessment order u/s 143(3) of the Act on 16.12.2010 determining the total income of Rs. 7790240/- against the returned income of Rs. 142740/-.

(Assessment Year: 2008-09) Sunita Thukral Vs. ITO

4.

The assessee aggrieved with the order of the ld Assessing Officer preferred an appeal before the ld CIT(A)-XXII, New Delhi, who dismiss the appeal of the assessee vide order dated 25.02.2014. He rejected the contention of the assessee with respect the non servicing of notice 143(2) of the Act as well as on the merits also he confirmed the addition Rs. 7647500/-. Therefore, the assessee aggrieved with the order of the ld CIT(A) preferred appeal before us.

5.

The ld Authorised Representative vehemently referred to Ground NO. 1 and submitted that no notice u/s 143(2) of the Act was served on the assessee. He referred to the assessment order and submitted that Assessing Officer has mentioned notice u/s 143(2) and 142(1) were issued but he stated has been served on the assessee. He submitted that this issue was raised before the ld CIT at para NO. 7.1 of his order, however, the same contention was rejected summarily. He submitted that if the notice was not served on the assessee 143(2) of the Act then the order passed thereon, is bad in law. He therefore, relied upon the following decisions that assessment made without valid notice u/s 143(2) of the Act served on the assessee the assessment is bad in law. a. Shri Ram Kumar Vs. ITO 785/Del/2016 b. Meenakshi Aggarwal Vs. ITO 4171/Del/2015 c. CIT Vs. Abacus Distribution System India Pvt. Ltd, (Delhi High Court ) d. Saptagiri Finance and Investment Vs. ITO (Mad) ITA No. 159/2006 e. Alpine Electronics Asia PTE Ltd Vs. DGIT (Hon'ble Delhi High Court) WPC No. 7932/2010

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