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Income Tax Appellate Tribunal, KOLKATA BENCH “A” KOLKATA
Before: Shri Mahavir Singh & Shri Waseem Ahmed
आदेश /O R D E R
PER Waseem Ahmed, Accountant Member:-
This appeal by the Revenue is arising out of order of Commissioner of Income Tax (Appeals)-XXXVI, Kolkata in appeal No.241/CIT(A)-XXXVI/Kol /37/Ward-2(2), Mid.08/09 dated 26.11.2010. Assessment was framed by ITO Ward-2(2), Midnapore u/s 144/147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 31.12.2008 for assessment year 2005-06. Revenue has raised following grounds:- “1, On the facts and in the circumstances of the case the Ld. CIT(A)- XXXVI, Kolkata erred in deciding that the A.O was having no jurisdiction over the appellant at the time of re-opening the assessment and issuing notice u/s 148 and therefore, reopening of the assessment was void authorities below-initio.
ITO Wd-2(2) Mid. V. Sh. Kamal Kr. Jain Page 2 2. On the facts and in the circumstances of the case the Ld. CIT(A)- XXXVI, Kolkata erred in deleting the additions of Rs.89,26,000/- which was made as investment from undisclosed sources made by AO without appreciating the facts that the assessee has failed to comply with the terms of notice u/s. 148 within 30 days from the date of receipt of the notice.”
At the time of hearing of this appeal, none appeared on behalf of Revenue. The Ld. DR sought for the bulk adjournment in 19 cases but we rejected the adjournment application in those cases where we find that the hearing can take place without the presence of the DR. So we decided to hear this case and proceeded after Smt. Shreya Loyalka, Ld. Authorized Representative appearing on behalf of assessee.
First ground of Revenue’s appeal is regarding that Ld. CIT(A) has erred in deciding that Assessing Officer was having no jurisdiction over the appellant at the time of re-opening of assessment u/s. 147 of the Act.
Briefly stated facts are that assessee is an individual and has made investment of Rs.89.26 lakh in different mutual funds. During the financial year 2004-05 the AO found that assessee has not filed his return of income for the relevant assessment year i.e. 2005-06 and therefore he formed the belief that income has escaped assessment. So AO has issued a notice u/s. 148 of the Act requiring assessee to file its return of income, however, there was no compliance from the side of assessee in spite of several reminders issued on different dates. After that AO finally framed the income escaped assessment u/s 144 r.w.s 147 of the Act and raised tax demand accordingly. Aggrieved, assessee preferred appeal before Ld. CIT(A).
Before Ld. CIT(A) assessee demonstrated that till assessment A.Y 2003-04 was being assessed with ITO ward 2(2) of Midnapore and after that assessee has shifted to New Delhi at the following address:- “31 North Avenue Road, West Punjabi Bagh, New Delhi - 110026”
ITO Wd-2(2) Mid. V. Sh. Kamal Kr. Jain Page 3 After shifting to New Delhi assessee updated its address in its Permanent Account Number (PAN) and started filing its return at New Delhi i.e., ITO Ward-25(4) New Delhi from AY 2005-06 onwards and this assessment year is in dispute. The assessee has submitted the following documents in support of his claim:- “1) Registration of house in favour of Sunita Jain (wife) on 25.3.2003 (Pg 7) 2) Bill for common area maintenance of residence (Pg 15) 3) Bill for purchase of car in the name of Sunita Jain(wife) dated 9.3.2004 (Pg 16) 4) Gas Connection bill dated 25.7.2003 (Pg 18) 5) Driving license (Pg 20) 6) Ration card (Pg 21)”
Assessee received a notice u/s. 142(1) dated 25.08.08 through its old neighbor at Midnapore. On receipt of said notice assessee immediately informed the ITO ward 2(2) Midnapore on 29.08.2008 that he had shifted to New Delhi and have already filed his return of income for AY 2005-06 vide acknowledgment No. 21120 disclosing entire income therein. Ld. CIT(A) called for remand report from AO which reproduced below for the sake of clarity:- “Notice U/s 148 was issued on 02.04.2007 and sent it by Post to the assessee at the earlier returned address which was Chotta Tangra, Kharagpur, Paschim Medinipur. But the said notice was returned unserved by the Postal Man on 19.04.2007. Subsequently, the assessee submitted a letter on 11.05.2007 informing the change of his address at “Jain Building” Kharida Main Road, Khargpur, Paschim Medinipur (copy enclosed marked ‘A’ for kind perusal). So, notice u/s. 148 was served upon the assessee at the changed address (copy of acknowledgement enclosed marked- ‘B’ for kind perusal. In response to notice u/s. 148 the assessee did not file his return of income for A.Y 2005- 06. Notice u/s 142(1) was issued on 17.07.2008 asking the assessee to appear and produce on 04.08.2008 at 11.30 AM the details and evidence regarding source of investments in Mutual Funds. Neither the assessee nor his authorized representative was appeared on the scheduled date. In reply to notice u/s. 142(1) the assessee submitted a letter to this office on 29.08.2008 wherein he stated that he had already filed his return of income for the A.Y 2005-06 under acknowledgement no. 221120 dated 12th January 2006 at the office of the Income tax Officer, Ward No. 25(4), Vikas Bhawan, new Delhi – 110 002. But it is seen from the copy of return in Form No. 2D SARAL (copy enclosed marked –‘C’) as submitted by the assessee that Machine punching Acknowledgement No. is 0000021120 and date of receipt of the return is not ITO Wd-2(2) Mid. V. Sh. Kamal Kr. Jain Page 4 clear. It is also seen from S/d copy of intimation u/s. 143(1) of the I.T. Act 1961 (copy enclosed marked – ‘D’) that the date of filing return was 31/03/2006 whereas the assessee stated in his aforesaid letter that he had filed return on 12.01.2006. So, there is discrepancy in actual date of filing the return. Although the assessee intimated through letter filed on 29.08.2008 that he shifted to New Delhi in 2003 but he did not file any submission to Ld. Commissioner of Income Tax, Kol-XIX, Kolkata requesting to transfer his jurisdiction to ITO Ward 25(4), new Delhi from ITO, Ward 2(2), Midnapore as there was no evidence of such submission in the record. In absence of order u/s. 127 of the I.T. Act 1961 of the Ld. Commissioner of Income Tax, Kol-XIX, Kolkata the then ITO, Ward 2(2), Midnapore completed the assessment for the assessment year 2005-06 ” On the basis of above, Ld. CIT(A) opined that AO (ITO Ward-2(2) Midnapore) was not having jurisdiction over the appellant at the time of reopening of assessment by issuing notice u/s. 148 of the Act and held that the reopening of assessment was void ab-inito. Aggrieved, Revenue is in appeal before us.
We have heard Ld. AR and perused the materials available on record. Ld. AR submitted paper book containing pages 1 to 26 and he relied on the order of Ld. CIT(A). From the aforesaid discussion we find that petitioner has shifted its business and residence from Midnapore to New Delhi and assessee’s return of income were duly filed before AO having jurisdiction over the area where business of the petitioner situated. Further, Ld. AR drew our attention to the necessary details which were submitted at appellate stage, clearly specifying that assessee has shifted its business as well as residence from Midnapore to Delhi. PAN of assessee has also been transferred from Ward 2(2) Midnapore to Ward 25(4) New Delhi. We are also relying on the judgment of Hon'ble Delhi High Court in the case of K.K. Loomba v. CIT & Ors Civil Writ Petn. 2983 of 1997 & Civil Misc. No. 5877 of 1998 dated 30-11- 1998, wherein the head-note reproduced as under:- “IT authorities – Jurisdiction of AO-Territorial jurisdiction – Petitioners shifted their business / profession and residence from Amritsar to Delhi – Return could have been filed only before an AO at Delhi and he would have jurisdiction to assess them – Therefore, the AO having jurisdiction over them would also have jurisdiction to issue notices under s. 148, ITO Wd-2(2) Mid. V. Sh. Kamal Kr. Jain Page 5 though referable to the period when they were assessed or were assessable at Amritsar by virtue of s. 124(1) and 124(5) r/ws. 120(1) – No order under s. 127 or s. 124(2) was called for”
In view of the decision of Hon'ble Delhi High Court in the case of K.K. Loomba (supra) we infer that Assessing Officer was having no jurisdiction on the assessee as he was shifted from Midnapore to Delhi and same fact was duly communicated to the I.T. Department. In terms of the above decision, we are inclined to quash the proceedings u/s 147 of the Act. This ground of Revenue’s appeal is dismissed.
Since the jurisdictional issue for reopening of assessment in Revenue’s appeal is dismissed, hence, remaining ground of Revenue’s appeal does not require any adjudication.