Income Tax Appellate Tribunal - Delhi
Anil Laul, Faridabad vs Assessee
ITA NO. 207/Del/2011
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "A", NEW DELHI
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER
AND
SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
I.T.A. No. 207/Del/2011
A.Y. : 1992-93
Shri Anil Laul, vs. Income Tax Officer,
Prop. Anangpur Building Centre, Ward 38(1),
Khera Dhumaspur, New Delhi
Distt. Faridabad - 121 003
(PAN:- AABPL5211H)
(Appellant ) (Respondent )
Assessee by : Sh. K.R. Manjani, Advocate
Department by : Sh. Pradee Kumar Meel, Sr. D.R.
ORDER
PER SHAMIM YAHYA: AM This appeal by the Assessee is directed against the order of the Ld. Commissioner of Income Tax (Appeals)-XXVIII, New Delhi dated 04.10.2010 pertaining to assessment year 1992-93.
2. The grounds raised in the appeal read as under:-
"Ld. Commissioner of Income Tax (Appeals) has erred on facts as well as in law in not declaring the assessment as void and illegal inspite of the fact that it is admitted by department that they have no record showing reasons recorded and issue and service of notice u/s. 148. On the 1 ITA NO. 207/Del/2011 basis of which, ITAT had admitted additional ground of appeal about voidness of the assessment.
That address of the appellant in 1995 was not of New Friends Colony but was Building Centre, Sarai Kale Khan, New Delhi as per our returns for 1993-94 and 1994-95.
Consequently, there is no question of service of notice u/s.
148 if at all issued. Department's finding that assessee had claimed to have filed return in March, 97 in response to notice u/s. 148 is wrong. No where it is claimed that return was filed in response to notice u/s. 148. The CA had asserted that he filed the return which fact is wrong. Even as per Ld. Commissioner of Income Tax (Appeals)'s order dated 24.10.2005. From the facts that return was filed in February, 2005. Consequently, holding that return claimed to have been filed in 1997 was response to notice u/s. 148 is wrong and against the fact of assessee's challenging non-
service of notice u/s. 148 which is also mentioned in Tribunal's order dated 17.10.2003, quoted in Ld. Commissioner of Income Tax (Appeals)'s order dated 24.10.2005.2
ITA NO. 207/Del/2011 The reasons recorded did not mention that no return was filed in 1992-93. It is only after getting the information for subsequent events that this is also claimed to be the reason for Section 148. Since they are not showing the reasons, this cannot be relied upon.
In view of the above, looking from any angle i.e. absence of reasons and no proof for service of notice u/s. 148, the assessment is void."
3. In this case the matter had earlier travelled to the tribunal and the tribunal had admitted the following additional ground raised by the assessee.
"The proceedings u/s. 147, notice u/s. 148 and assessment made in pursuance thereof are void, there being no reasons, no service of notice."
3.1 Vide order dated 16.12.2008, the Tribunal had held as under:-
"We have heard the rival submissions and perused the material available on record and have gone through the orders of the authorities below. We find that the issue raised by the assessee in additional ground in assessment year 1992-93 and 1997-98 goes to the root of the matter and hence, we admit the 3 ITA NO. 207/Del/2011 additional ground raised by the assessee in both these years. Since, this aspect of the matter was not looked into by Ld. Commissioner of Income Tax (Appeals), we feel that this matter should be restored back to the file of the Ld. Commissioner of Income Tax (Appeals) for his decision on this aspect of the matter in both these years after examining the assessment records and after providing adequate opportunity of being heard to both sides. The issues on merit are also being restored back to the file for fresh decision because it is the claim of the assessee that in assessment year 1992-93, Ld. Commissioner of Income Tax (Appeals) has erred in recording an incorrect finding that the books of account and related documents were not produced before the Assessing Officer on 24.3.2005 and that the assessee has not filed the return of income. Similarly, in assessment year 1997-98, this is the claim of the assessee that Ld. Commissioner of Income Tax (Appeals) has erred in ignoring the documentary evidence which was placed on record while confirming the addition of ` 65,91,503/-. In this year, it is also the claim of the assessee that Ld. Commissioner of Income Tax (Appeals) has erred in observing that the information received from the US Tax Authorities was confronted during the assessment proceedings vide entry dated 12.9.2005 which could not be correct as assessment order was passed much earlier on 29.3.2005. In this situation, we feel that 4 ITA NO. 207/Del/2011 the entire matter in both these years should go back to the file of Ld. Commissioner of Income Tax (Appeals) for afresh decision. We, therefore, set aside the order of Ld. Commissioner of Income Tax (Appeals) in both these years and restore the entire matter back to him for afresh decision on the issues already decided by him and also for a decision on the issue which is raised before us by way of additional ground."
3.2 In pursuance of this demand, the matter was taken up by the Ld. Commissioner of Income Tax (Appeals). Ld. Commissioner of Income Tax (Appeals) referred to the submissions of the assessee and the remand report of the Assessing Officer in this regard. Ld. Commissioner of Income Tax (Appeals) concluded as under:-
"5.11 It is apparent from the facts discussed above that a notice u/s. 148 was issued and served after recording of valid reasons. The Assessing Officer has been unable to produce the relevant assessment record containing the notice u/s. 148 and the reasons. However, it is necessary to consider that the matter is more than 15 years old and the department has since undergo a major restructuring with consequent dislocation of records. the fact that the notice u/s. 148 and the reasons, and proof of service, was not produced by the Assessing Officer at present does not 5 ITA NO. 207/Del/2011 necessarily lead to the conclusion that the notice was not issued or properly served, and that there was no reasons for issue of this notice. This is because of the significant facts discussed above. This case has twice travelled to the Ld. Commissioner of Income Tax (Appeals) and the ITAT and has been set aside first to the Assessing Officer and then to the Ld. Commissioner of Income Tax (Appeals). The assessment orders and appellate orders of the Ld. Commissioner of Income Tax (Appeals) in earlier rounds specifically mention the reasons for issue of notice u/s. 148. They give details of service of the notice u/s.
148. The appellant also claims to have filed return in response to the notice u/s.
148. These facts show that the notice u/s. 148 was duly served after recording of valid reasons but the relevant record is at present not available, as the matter is very old.
5.12 The appellant has referred to certain
judicial decisions in support of his
arguments. In the cases relied upon by the appellant, the facts were different because in these cases, no valid reason was found to be recorded or there was no proof of 6 ITA NO. 207/Del/2011 service of notice. These decisions are not applicable because in the present case, there did exists valid reasons for issue of notice u/s. 148, and the notice u/s. 148 was issued and duly served at the appellant's address by registered post. However, due to the case being more than 15 years old and the department having undergone a massive restructuring, these documents are not presently available. A distinction must be drawn between a case where no reasons were recorded and no notice was issued or served; and a case such as this, where the facts show that reasons were recorded and notice u/s 148 was issued and duly served however, as the matter is very old, the relevant record is not available at present. Judicial decisions have recognized the difficulties in adducing evidence after a long passage of time. In view of these facts, the judicial decisions relied upon by the appellant are not applicable in this case.
5.13 In view of above, the appellant's claim that the assessment order passed in consequence of the notice u/s. 148 is void is not acceptable. This view is supported by the decision in C.I.T. vs. Shankar Lal Ved 7 ITA NO. 207/Del/2011 Prakash (2008) 300 ITR 243 (Delhi) and Avneesh Kumar Singh vs. ITO (2010) 126 ITD 1 (Agra) (TM).
5.14 Considering the facts, the appellant's claim that "The proceedings were u/s. 147, notice u/s. 148 and assessment made in pursuance thereof are void, there being no reasons, no service of notice", is not acceptable. The ground is dismissed."
4. Against the above order the assessee is in appeal before us.
5. We have heard the rival contentions in light of the material produced and precedent relied upon. We find that Tribunal had specifically admitted the additional ground raised by the assessee that "The proceedings were u/s. 147, notice u/s. 148 and assessment made in pursuance thereof are void, there being no reasons, no service of notice." In this regard, Ld. Commissioner of Income Tax (Appeals) has given a finding that the matter is more than 15 years old and the department has since undergone a major restructuring with consequent dislocation of records. Ld. Commissioner of Income Tax (Appeals) has held the fact that the notice u/s. 148 and the reasons, and proof of service, was not produced by the Assessing Officer at present does not necessarily lead to the conclusion that the notice was not issued or properly served, and that there was no reasons for issue of this notice. Ld. Commissioner of Income Tax (Appeals) observed that the case had earlier twice travelled to the Ld. Commissioner of Income Tax (Appeals) and the ITAT and has been set aside first to the Assessing Officer and then to the Ld. Commissioner of Income Tax 8 ITA NO. 207/Del/2011 (Appeals). Ld. Commissioner of Income Tax (Appeals) noted that the assessment orders and appellate orders of the Ld. Commissioner of Income Tax (Appeals) in earlier rounds specifically mention the reasons for issue of notice u/s. 148. They give details of service of the notice u/s. 148. Ld. Commissioner of Income Tax (Appeals) further observed that the assessee also claims to have filed return in response to the notice u/s. 148. Ld. Commissioner of Income Tax (Appeals) concluded that these facts show that the notice u/s. 148 was duly served after recording of valid reasons but the relevant record is at present not available, as the matter is very old. 5.1 We have carefully considered the Ld. Commissioner of Income Tax (Appeals)'s finding as above. We find that earlier orders of Ld. Commissioner of Income Tax (Appeals) were before the tribunal in the earlier rounds and despite that Tribunal had noted that additional ground needs to be admitted and matter was sent to the Ld. Commissioner of Income Tax (Appeals) for examination on the aspect that there was no reasons and no proof of service of notice. As per the admitted position emanating of the Ld. Commissioner of Income Tax (Appeals)'s order that department was not having any record of the issue of notice. In these circumstances, in our considered opinion, Ld. Commissioner of Income Tax (Appeals) has not been able to follow the direction of the Tribunal and has relied upon the facts and matter which were prevailing earlier and despite which the tribunal has remitted the matter to the file of the Ld. Commissioner of Income Tax 9 ITA NO. 207/Del/2011 (Appeals). In these circumstances, in our considered opinion, since the department has not been able to prove that there was service of notice and valid reasons were recorded, we hold that the assessment in this regard is liable to be quashed and accordingly, is quashed as such.
6. In the result, the appeal filed by the Assessee is allowed.
Order pronounced in the open court on 11/5/2012.
Sd/- Sd/-
[RAJPAL YADAV]
YADAV] [SHAMIM YAHYA]
JUDICIAL MEMBER ACCOUNTANT MEMBER
Date 11/5/2012
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant 2. Respondent 3. CIT 4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
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