DIPANKAR MOHAN GHOSH,NEW DELHI vs. CIT-1, NEW DELHI
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Income Tax Appellate Tribunal, DELHI BENCH ‘B’: NEW DELHI
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘B’: NEW DELHI BEFORE, SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA No.277/Del/2021 (ASSESSMENT YEAR 2012-13) ITA No.531/Del/2021 (ASSESSMENT YEAR 2012-13) Late, Dipankar Mohan CIT(IT)-I, Ghosh International Taxation [Through legal heir Mrs. Vs. New Delhi-110 002 Sagarika Ghosh] C/o R.N. Marwah & Co.LLP 4/80, Janpath New Delhi-110 001 PAN-AMRPG 9569K (Appellant) (Respondent)
Appellant by Mr. Salil Kapoor, Mr. Sumit Lalchandani and Mr. Praveen Geol, Advocates Respondent by Mr. T.James Singson, CIT-DR Date of Hearing 19/04/2023 Date of Pronouncement 28/06/2023
ORDER PER M. BALAGANESH, AM: The appeal of the assessee in ITA No.277/Del/2021 is against
the order passed by the Learned Principal Commissioner of Income
Tax [“Ld. PCIT(A)”, for short] in DIN No. ITBA/COM/F/17/2019-
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ITA No.277 & 531/Del/2021 Dipankar Mohan Ghosh vs. CIT 20/1026866696(1) dated 23/03/2020 for Asst. Year 2012-13 and
ITA No.531/Del/2021 is against the revision order passed by the
Ld. PCIT in DIN No. ITBA/REV/F/REV5/2020-21/1031948078(1)
dated 30/03/2021 for Asst. Year 2012-13.
The assessee has raised the following grounds in both
appeals:
ITA No.277/Del/2021
“1. That on facts and in Law the Learned Commissioner of Income Tax, International-1 New Delhi erred in purportedly passing order u/s263 dated: 23.03.2020 which is prima facie Non-Est, void ab-initio, bad in law for the following reasons: a) That the order passed and uploaded in portal on 23 March 2020 Le.. During Lock Down while offices were closed, without attaching any signature, either manually or digitally, in contravention of the provision of section 282A of the Act has no legal validity and cannot be said to be in substance and effect an Order" in conformity with or according to the intent and purpose of the Act.
b) That the impugned order passed without appreciating or considering the Orders of the Hon'ble High Court of Delhi pursuant to Departmental appeal against order of AAR. c) That the order passed mentions wrong address which resulted in non-service of the said order physically at address for communication. 2.1 That the Ld. CIT erred in assuming jurisdiction u/s. 263 of the Act and holding that the order u/s147/143(3) dated 26.02.2018 passed by AO pursuant to directions of AAR was erroneous and prejudicial to interest of Revenue. 2.2 That the Learned CIT while holding that the impugned order is erroneous has erred in concluding that AO failed to enquire/ examine the correctness of the computation of Capital gains with respect to valuation, Sale consideration, claims of Expenses and Investment in new property in London, despite the fact that all evidence necessary was duly filed during
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ITA No.277 & 531/Del/2021 Dipankar Mohan Ghosh vs. CIT assessment proceedings and AO being satisfied accepted the Computation of Capital Gains.
2.3 That the Ld. CIT failed to appreciate that u/s 263 of the Act, an order of assessment cannot be set-aside merely to withhold refund and granting second innings to Ld. AO to make further enquiries and as such, impugned order is contrary to law and hence, unsustainable.
That the Ld. CIT has erred in holding that impugned order was erroneous and prejudicial to interest of revenue without conducting any independent enquiry or application of mind.
That the Ld. CIT while holding that impugned order is erroneous and prejudicial to interest of Revenue erred in concluding that Appellant not entitled to refund of Income Tax u/s239 of the Act as return filed pursuant to notice u/s147 and rejected the contention of the Appellant that the refund was in fact due u/s240 of the Act as determined pursuant to order u/s154 Dated 28.03.2018, wrongly stated by CIT as Draft Order.
That the assessee craves leave to alter, amend or withdraw all or any objections herein or add any further grounds as may be considered necessary either before or during the hearing.”
ITA No.531/Del/2021
“1.1 That on facts and in Law the Learned Commissioner of Income Tax, International Tax -1 New Delhi erred in purportedly passing a 2 order u/s 263 dated: 30.03.2021 which is prima facie Non-East void ab-initio, bad in law for the following reasons:
(i) That the assessment order passed u/s. 147/143(3) dated 26.02.2018 sought to be set aside, already ceased to exist having already been set aside by the predecessor CIT, International Taxation-1, New Delhi pursuant to his order u/s. 263 of the Act dated 23.03.2020 passed after initiation of the proceedings vide Notice dated 02.08.2019 served thru portal and the impugned order could not have been passed thereafter;
(ii) That the Notices dated: 9.03.2021, 17.03.2021 & 23.03.2021 issued in continuation of the earlier proceedings u/s. 263 of the Act initiated vide Notice dated 2.08.2019 are invalid as no proceedings u/s 263 of the Act was pending on date of aforesaid notices;
(iii) That the impugned order passed u/s. 263 of the Act setting aside the assessment order dated 26.02.2018 was passed ignoring
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ITA No.277 & 531/Del/2021 Dipankar Mohan Ghosh vs. CIT the fact that the Appellant had already intimated the filing of appeal before ITAT against the order dated 23.03.2020 passed u/s. 263 of the Act by predecessor CIT who too had set aside the same assessment order dated 26.02.2018;
1.2 That the Ld. CIT International -1, New Delhi erred in law in exercising powers of a judicial/ appellate authority by holding and recording a finding that the Order u/s. 263 of the Act dated 23.03.2020 passed by her predecessor setting aside the assessment order u/s 147/143(3) of the Act dated 26.02.2018 has no legal validity. Without Prejudice to the above Ground of Appeal: 2. That the Ld CIT erred on facts and in Law in assuming jurisdiction u/s 263 of the Act and holding that the order u/s147/14313) of the Act dated 26.02.2018 passed by d AO pursuant to binding directions of AAR was erroneous and prejudicial to interest of Revenue. 3. That the Ld. CIT erred in holding that the impugned order is erroneous and prejudicial for the reason that the Ld. AD failed to enquire / examine the correctness of the computation of Capital Gains with respect to valuation, Sale consideration, claims of Expenses and Investment in new property in London, despite the fact that all evidence necessary was duly filed during assessment proceedings and td AD after examination and enquiry being satisfied accepted the Computation of Capital Gains. 4. That the Ld CIT has wrongly and illegally held that the order passed by the Ld. AO is erroneous and prejudicial to the interest when no independent enquiry has been made by her. Hence the notice issued u/s 263 of the Act and the order passed u/s 263 of the Act is illegal and bad in law. 5. That the Ld CIT while holding that impugned order is erroneous and prejudicial to interest of Revenue erred in concluding that Appellant not entitled to refund of Income Tax by virtue of Section 239 of the Act despite the fact that refund was determined vide order u/s 154 of the Act dated 28.03.2018 served upon Appellant, rejecting the contention of the Appellant that the same was covered by provisions of Section 240. In any case the Appellant is also entitled to refund u/s 237 of the Act. 6. That the assessee craves leave to alter, amend or withdraw all or any objections herein or add any further grounds as may be considered necessary either before or during the hearing”
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ITA No.277 & 531/Del/2021 Dipankar Mohan Ghosh vs. CIT 3. We have heard the rival submissions and perused the
materials available on record. Ground No.1 raised by the assessee
in ITA No.277/Del/2021 was stated to be not pressed by the Ld.
AR. The same is reckoned as statement made from the Bar.
Accordingly, Ground No.1 in ITA No.277/Del/2021 is hereby
dismissed as not pressed.
With regard to the other ground raised in both the appeals,
the undisputed facts are as under:-
(a) The first revision order passed u/s 263 of the Act dated
23/03/2020 by the Ld. PCIT was not signed by the Ld. PCIT either
manually or through digital signature. Page-1 of the order of the Ld.
PCIT u/s 263 of the Act dated 23/03/2020 contains a foot note
specifically mentioning as under:
NOTE:- If digitally signed, date of digital signature made be
taken as date of document.
As stated earlier, this order was neither signed manually nor
digitally signed by the Ld. PCIT.
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ITA No.277 & 531/Del/2021 Dipankar Mohan Ghosh vs. CIT (b) This order dated 23/03/2020 was served on the assessee
through email on 25/03/2020 and uploaded in the portal of the
Income Tax Department.
(c ) Thereafter, second order was passed by the Ld. PCIT u/s 263 of
the Act digitally signing the same on 30/03/2021. This order also
was uploaded in the portal of the Income Tax Department.
The Ld. Authorized Representative of the assessee (“Ld. AR” for
short) before us argued on the validity of the first revision order
passed u/s 263 of the Act by placing reliance on Rule 127A of the
Income Tax Rules. The Ld. DR filed written submissions before us
stating that since the first revision order passed u/s 263 of the Act
dated23/03/2020 was not signed by the ld. PCIT, it becomes
unsigned document, non est, null and void ab initio. Accordingly,
the Ld. CIT-DR submitted that no course of action arises from such
unsigned, non est revision order dated 23/03/2020 and prayed for
dismissal of the appeal of the assessee as infructuous. In our
considered opinion, the aforesaid contentions of both assessee as
well as Revenue need not be gone into, pursuant to the adjudication
of the issue in dispute on merits herein below. Page 6 of 10
ITA No.277 & 531/Del/2021 Dipankar Mohan Ghosh vs. CIT 6. On merits, we find that assessment was completed u/s 143(3)
r.w.s 147 of the Act for A.Y.2012-13 in the case of assessee, being a
non - resident, on 26/02/2018 determining total income of
Rs.55,48,95,950/-. The assessee vide letter dated 23.03.2018
pointed out that tax credit was given in the assessment order only
for Rs.11,42,39,474/- as against the claim made in the return for
Rs.16,58,02,551/-. Accordingly, the Ld. AO passed a rectification
order u/s 154 of the Act on 28.03.2018 granting the differential tax
credit of Rs.5,15,63,077/- to the assessee. This order u/s 154 of
the Act dated 28/03/2018 is enclosed in page 268 of the Paper
Book. The Ld. AO passed another rectification order u/s 154 of the
Act dated 27/09/2018 withdrawing the grant of additional TDS
credit of Rs.5,15,63,077/-. The assessee preferred an appeal
against this order before the Ld. CIT(A) which was disposed of by
the Ld. PCIT-42, New Delhi in Appeal No.104/2018-19/CIT(A)-42
dated 08.05.2019 allowing the appeal of the assessee for statistical
purpose and holding that rectification order was passed by the Ld.
AO without granting opportunity to the assessee. Accordingly, the
Ld. AO was directed to allow opportunity to the assessee and decide
the rectification application preferred by the assessee. Against this Page 7 of 10
ITA No.277 & 531/Del/2021 Dipankar Mohan Ghosh vs. CIT order, the assessee preferred an appeal before the Tribunal which
was disposed of in ITA No.6674/Del/2019 dated 26/07/2022
allowing the appeal of the assessee.
We find that the assessee filed a grievance petition through his
AR on 08.07.2019 before the Ld. PCIT(IT)-1, New Delhi seeking for
refund of taxes. Based on this, the Ld. PCIT initiated revision
proceedings u/s 263 by issuing show cause notice dated
02/08/2019 by treating the order passed by the Ld. AO u/s 143(3)
r.w.s 147 dated 26/02/2018 as erroneous and prejudicial to the
interest of the Revenue. The assessee furnished the detailed reply
narrating the entire facts and chronology of events which are
enclosed in pages 299 to 323 at the Paper Book. We find that as far
as the issue in dispute on merits in the first revision order passed
u/s 263 of the Act by the Ld. PCIT dated 23/03/2020, the said
issue was already decided by the Ld. CIT(A) vide order dated
08/05/2019. Hence, on the date of initiation of section 263
proceedings on 02/08/2019, the Ld. CIT(A) had already disposed of
the appeal on 08/05/2019 by adjudicating the issue on merits.
Hence, this issue of grant additional TDS credit of Rs.
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ITA No.277 & 531/Del/2021 Dipankar Mohan Ghosh vs. CIT 5,15,63,077/- was already considered and decided by the Ld. CIT(A)
by his order dated 08.05.2019. Hence, for adjudication of very same
issue, the Ld. PCIT cannot invoke revision proceedings u/s 263 of
the Act in view of the provisions of Explanation-1(c) to section
263(1) of the Act. On this limited issue itself, we could conclusively
hold that revision order passed by the Ld. PCIT u/s 263 of the Act
be it on 23/03/2020 or on 13/03/2021 are against the provisions
of the Act and deserves to be quashed. Accordingly, both the
revision orders passed by the Ld. PCIT are hereby quashed as void
ab initio. Accordingly, other grounds raised by the assessee are
allowed.
In the result, both the appeals of the assessee are allowed.
Order pronounced in the open court on 28th June, 2023.
Sd/- Sd/- (CHANDRA MOHAN GARG) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 28/06/2023 Pk/sps Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
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ITA No.277 & 531/Del/2021 Dipankar Mohan Ghosh vs. CIT ASSISTANT REGISTRAR ITAT, NEW DELHI
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