RAJENDRA AGGARWAL,NEW DELHI vs. DCIT, NEW DELHI

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ITA 5982/DEL/2012Status: DisposedITAT Delhi17 August 2016AY 2004-053 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that relevant facts to decide the jurisdictional issue were not available on record. Therefore, the matter was set aside to the CIT(A) to first decide the jurisdictional issue and then proceed on merits if necessary.

What were the facts?

The assessee challenged an addition of Rs. 11,61,250/- made during assessment proceedings initiated under Section 153A. The assessee argued that the assessment was not abated at the time of search and no incriminating material was found.

What were the issues?

Whether additions made under Section 153A are valid when the assessment was not abated and no incriminating material was found during the search.

Which sections of the Income-tax Act were involved?

Section 153A,Section 143(1)

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Income Tax Appellate Tribunal, DELHI BENCH: ‘F’ NEW DELHI

Before: SMT DIVA SINGH & SH.O.P.KANT

Hearing: 09.06.2016Pronounced: 17.08.2016

Date of Hearing 09.06.2016 Date of Pronouncement 17.08.2016 ORDER

PER DIVA SINGH, JM

1.

The present appeal has been filed by the assessee assailing the correctness of the order dated 29.10.2012 of CIT(A)-XXXI, Delhi pertaining to 2004-05 assessment year on the following grounds:- 1. “The learned CIT(A) erred in law and on facts in confirming the addition of Rs. 11,61,250/- (equivalent to USD 25,000/-) lacs ignoring the fact that source of the same was duly reflected in the bank account and documentary evidences placed on record. Thus, the addition must be deleted.

2. The additions in the impugned assessment order passed u/s 153A are bad in law and on facts because a) the additions were not based on any books of account or other material not produced in the course of original assessment but which could alleged to have been found in the course of search or an undisclosed income or property discovered therein b) as the assessment proceedings were not abated but were already completed. Thus all the additions so made in the assessment order should be deleted following the Special Bench decision dated 6/7/12 in the case of All Cargo Global Logistics Ltd. in appeals no. ITA/5018-5022/M/10.

3. The appellant craves the leave to add, substitute, modify, delete or amend all or any ground of appeal either before or at the time of hearing.”

I.T.A .No.-5982/Del/2012

2.

At the time of hearing, Ld. AR inviting attention to Ground No. 2, relying upon the decision of the Jurisdictional High Court in the case of CIT vs Kabul Chawla 380 ITR 573 (Delhi) submitted that the assessment for 2004-05 AY was not abated (and deemed to be completed u/s 143(1)) as on the date of the search accordingly the addition in the absence of any incriminating material found during the search the addition could not have been made. The following chart of dates was relied upon in support of its prayer:- Particulars Date

Original Return filed u/s 139 23.08.04

Time limit prescribed for service of notice u/s 143(2) 31/08/05 12 months from the end of the month in which return was filed

Time limit prescribed u/s 153 for completion of assessment 31/12/06 21 months from the end of the assessment year concerned

Date of search 31/07/08

3.

The Ld. CIT.DR submitted that the facts relatable to this are not coming out from the orders and following the orders in the Rajdarbar Group of cases wherein the search took place, the issue may be restored to the file of CIT(A) following the precedent. The Ld. AR considering the request of the Department and the material available on record fairly submitted that he would have no objection if the issue is restored to the file of the CIT(A) to decide the jurisdictional issue first. Although it was his argument that even on merit the addition is not maintainable.

4.

We have heard the rival submissions and perused the material available record. We find that admittedly the relevant facts in order to decide the jurisdictional issue are not available on record. Accordingly in the light of the submissions of the parties before the Bench and the material available on record the impugned order is set aside and the CIT(A) is directed to first decide the jurisdictional issue and then proceed to address the issues on merits if need be. Needless to say that the CIT(A) shall pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.

I.T.A .No.-5982/Del/2012

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