Neena Wadhwa, New Delhi vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH 'E ', NEW DELHI) BEFORE SHRI G. C. GUPTA, HON'BLE VICE PRESIDENT AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. No.1255 /Del/2012 Assessment year : 1998-99 Neena Wadhwa, Vs. DCIT, CC-5, 60-B, Sainik Farms, New Delhi -110 062 C-5, Street, New Delhi. GIR / PAN:AAAPW5822G (Appellant) (Respondent) Appellant by : Shri Sanat Kapoor, Adv. Respondent by : Shri P Dam Kanunjha, Sr. DR

Date of hearing : 17.03.2015 Date of pronouncement : 31.03.2015

ORDER

PER T.S. KAPOOR, AM:

This is an appeal filed by assessee against the order of Ld. CIT(A) dated 13.01.2012. The assessee has raised various grounds of appeal challenging the validity of assessment made u/s 148 of the Act. Ground NO.2 of appeal relates to the challenge that the A.O. had proceeded to reassess the income u/s 148 which was already considered in block assessment and, therefore, no notice u/s 148 could have been issued again to assess/reassess the income which has already been assessed. The grounds of appeal taken by assessee are reproduced below:

"1. That the notice issued U/s 148 and reassessment order passed by the assessing officer are illegal, bad in law, without jurisdiction and against the principle of natural justice.

2. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in ignoring the fact that AO has already 2 ITA No.1255/Del/2012

included the reassessed income in the block assessment order and notice U/s 148 cannot be issued to again assess I reassess the income that has already been assessed and taxed by the AO previously .

3. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not appreciating the fact that as per the reasons recorded itself it is clear that the notice U/s 148 has been issued to assess the income on protective basis and this itself is illegal, bad in law and contrary to well established principles of law.

4. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not appreciating the fact that as per the reasons recorded itself it is clear that the notice U/s J 48 has been issued as per the opinion of the standing counsel this itself is illegal, bad in law and contrary to well established principles of law.

5. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not appreciating the fact that the assessee had disclosed all facts truly and fully for assessment of income during the course of assessment proceedings, hence the notice Vis 148 is illegal, bad in law and without jurisdiction.

6. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not appreciating the submissions filed by the appellant on merits before him as well as the submissions filed before the CIT(A) in appeal against the block assessment order and which were relied on during the appeal against 148 order.

7. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in ignoring the fact that no incriminating document or material whatsoever and no undisclosed assets were found from the residence of office of the appellant.

8. That the addition of Rs 27,60,000/- made is illegal, bad in law and made on irrelevant grounds and based on surmises and conjectures and mere guesswork.

9. That the additions made are illegal, unjust and bad in law and are based on mere surmises and conjunctures and the same cannot be justified by any material on record.

10. That the various observations made by the AO and CIT(A) are illegal, bad in law and contrary to facts on record , without any material on record and on basis of surmises and conjectures.

11. That the AO and CIT(A) while passing the impugned orders have grossly erred in ignoring the well established principles of law.

3 ITA No.1255/Del/2012 12. That the evidences filed and materials available on record have not been properly considered and judiciously interpreted, hence the Addition / disallowance made is illegal and uncalled for.

13. That interest U/s 234A, 234B and 234C of the Income Tax Act, 1961 has been wrongly and illegally charged and has been wrongly worked out."

2. The assessee in various grounds of appeal has challenged the assessment completed u/s 148 on various legal issues. The brief facts of the case are that the notice u/s 148 was issued on 15.03.2004 and the assessee was asked to file return of income for the Assessment Year 1998-99 on 13.04.2004. After serving the notice u/s 143(2), the A.O. show cause the assessee that as to why addition of Rs.27,60,000/- be not made to the income of the assessee. However, the assessee did not reply and, therefore, the A.O. made the addition on the basis of material available on record and passed the order u/s148 of the Act. Ld. CIT(A) also dismissed the appeal of assessee and assessee contested the matter before ITAT. ITAT restored the mater back to the office of Ld. CIT(A) with the direction to re-adjudicate the issue on merits. Ld. CIT(A) again dismissed the appeal of assessee after adjudicating on merits and on legal issue therefore the assessee is again in appeal before us.

3. At the outset, Ld. A.R. submitted that the addition made by A.O. and confirmed by Ld. CIT(A) were already assessed to tax by order dated 29.05.2001 u/s 158BC of the Act. Ld. A.R. further submitted that ITAT had quashed the said order u/s 158BC on the basis that the assessment was time barred and, therefore, the Revenue went in for appeal before Hon'ble High Court and Hon'ble High Court had also admitted the substantial question of 4 ITA No.1255/Del/2012

law and in this respect, Ld. A.R. invited our attention to order dated 24.03.2008 of Hon'ble High Court. Therefore, it was submitted that the addition confirmed by Ld. CIT(A) in the year is already subject matter of addition u/s 158BC and, therefore, the addition cannot be again made by issuing notice u/s 148 of the Act. To support his contention that addition was already considered in the said order u/s 158BC, the Ld. A.R. invited our attention to paper book pages 39-63 and specifically took us to paper book page 58 where the said addition of Fs.27.60 for Assessment Year 1998-99 was assessed to tax. Ld. A.R. further submitted that the original assessment was made u/s 143(3) and reassessment u/s 148 was made after the completion of four years and there was no failure on the part of assessee as the assessee had declared fully and truly all material facts necessary for assessment. Ld. A.R. further submitted that in Assessment Year 1999-2000 in the case of assessee itself under similar circumstances, notice u/s 148 was issued and assessment was completed u/s 148 and Ld. CIT(A) had quashed the said order and the Revenue had not filed any appeal against the order of Ld. CIT(A) and in this respect, our attention was invited to paper book pages 4-9 where the order of Ld. CIT(A) was placed. It was submitted that during 1999-2000 also, the alleged escaped income formed part of block assessment. Our attention was invited to paper book page 58 where against column of 1999-2000 the income was mentioned. Ld. A.R. submitted that the same income was proposed to be reassessed and in this respect, our attention was invited to paper book pages 10-11 where a copy of reasons recorded was placed. Ld. A.R. submitted that the proceedings in Assessment Year 1999-2000 has attained finality and no appeal has been 5 ITA No.1255/Del/2012

preferred by Revenue and, therefore, following the above, the appeal of assessee in the year under consideration be also allowed.

4. Ld. D.R. on the other hand heavily placed his reliance on the orders of authorities below and submitted that ITAT had allowed relief to the assessee on legal issue and the merits of the case were not discussed and, therefore, the action for making assessment of escaped income was justified.

5. We have heard rival parties and have gone through the material placed on record. We find that an order u/s 158BC dated 29.05.2001 placed at paper book pages 39-63 was passed as block assessment wherein the income of the assessee proposed to be assessed by issuing notice u/s 148, was already assessed to tax vide that order. The Hon'ble Tribunal had allowed relief holding that the order passed u/s 158BC was time barred. The appeal filed by Revenue is pending before Hon'ble High Court. However, the question has been admitted vide Hon'ble Delhi High Court order dated 24.03.2008. From the reasons recorded and placed at paper book page 333, we find that the A.O. proposed to reassess the income of the assessee by holding that since ITAT had quashed the block assessment order, and standing counsel had advised for reopening of case. We find that in 1999- 2000 which was also subject matter of addition u/s 158BC, the case of the assessee was reopened and assessment was made. Ld. CIT(A) had quashed the assessment by holding as under:

"3.1.5 I have considered the arguments of the AR and the reasons recorded by the AO while re- opening the assessment.

3. 1.6 Section 148 comes into the picture when there is escapement of income. In the instant case, all the' additions which are made by the 6 ITA No.1255/Del/2012

AO were also treated as undisclosed income in the order U/S 158BC made on 29-05-2001. This order though squashed by ITAT has not become final. Department has appealed against the said order which is pending before the High Court. To that extent, it is obvious that the income which is being assessed under 148 has already been assessed to tax U/S 158BC. Thus to take a view that the said income has escaped assessment may be contrary to the existing facts. Whether an income which could have been validly assessed to tax u/s 158BC and which remained to be assessed and taxed due to-default of the AO in adhering to the time limit prescribed under 158BC of the Act can be treated as escaped income within the meaning of sec. 1477 The answer in my opinion could be in the negative.

3.1.7 The provisions of section 147 are meant for bringing to tax the income which has escaped assessment. In the garb of section 147, it may not be correct to assess the income which could not be assessed due to non-adherence to the limitations prescribed under the Act. It is pertinent to note that in case Hon'ble High Court upholds revenue's appeal against ITA T's order squashing order u/s I58BC the present assessment made u/s 148 could amount to double taxation of the same income. In such scenario the assessee would be put to great hardship. When the department has not accepted the order of IT A T, I am of the view that, the AO cannot treat the income duly assessed u/s I58BC as escaped income U/S 147 merely because the order under 158BC has been squashed by IT AT as time barred. Thus, I am not agree with the AO that there was any income which had escaped assessment while in reality such income was already assessed to tax u/s 158BC. Secondly, this is not a protective assessment which the A.O. has carried out. This is a substantive addition made by the AO even when department's appeal before High Court on the same income is pending for disposal. When there was no income that had escaped assessment, there is no question of issuing notice U/S 148.

3.1.8 It is also relevant to examine the provision of sec. 158BA which is a charging section for income unearthed due to search u/s 132 of ITAT Act. Section 158BA begins with a non obstante clause and states that the undisclosed income resulting from action u/s 132 and 132A shall be assessed only in accordance with the provisions of chapter 7 ITA No.1255/Del/2012

XIV -B. (Special procedure for assessment of search cases). Sec. 158BA(2) provides for taxing the undisclosed income at the rate specified u/s 113 as income of the block period. Thus, there is a, statutory mandate to assess the income discovered during search u/s 132 only as per provisions of chapter XIV -B. There is a higher rate of tax applicable to such income u/s 113. There are provisions for not charging (sec 158BF) certain kinds of interests (234A, 234B & 234C) otherwise chargeable in the normal course. Further, penalty u/s 271

(l)(c) is also not leviable (as per sec. 158BF) to income assessable under the chapter.

Therefore income unearthed during action u/s 132 or 132A can be subject matter of assessment only under chapter XIV -B which provides for special way .of taxing such income. If the A.O. has missed the bus, due the action u/s 158BC getting time barred, I do not think he can treat it as escaped income. For income discovered U/S 132, the provisions of sec. 147 are not applicable. Therefore, I hold that the invocation of jurisdiction u/s 147 by the AO is illegal and bad in law."

6. Ld. A.R. has stated at the bar that no appeal has been field by Revenue against above Ld. CIT(A)'s order and Ld. D.R. also could not controvert the statement of Ld. A.R., therefore the findings of Ld. CIT(A) in Assessment Year 1999-2000 have become final. We are in agreement with the findings of Ld. CIT(A) and hold that for an addition which has already been considered u/s 158BC, the same cannot be made subject matter of addition by again invoking the provisions of Section 148. The reasons recorded by A.O. itself do not point out to the fact that some income had escaped assessment. It has been mentioned in the reasons recorded that the reassessment is being proposed in view of the fact that ITAT had quashed the order u/s 158BC. The reasons recorded are not good enough to initiate proceedings u/s 148 especially in view of the fact that decision regarding 8 ITA No.1255/Del/2012

addition made u/s 158BC is pending before Hon'ble High Court. The provisions of section n147 are meant to tax only that income which had escaped income. The additions made during this year are admittedly part of block assessment when has been taxed by Revenue. If because of inefficiency or otherwise on the part of Revenue, the assessee is able to get some assessment order quashed, the revenue is not empowered to tax the same income by taking another route.

7. In view of above, appeal filed by assessee is allowed.

8. Order pronounced in the open court on 31st March, 2015.

Sd./- Sd./- ( G. C. GUPTA) (T.S. KAPOOR) VICE PRESIDENT ACCOUNTANT MEMBER Date: 31.03.2015

Sp

Copy forwarded to:- 1. The appellant 2. The respondent 3. The CIT 4. The CIT (A)-, New Delhi.

5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi. True copy.

By Order

(ITAT, New Delhi).

9 ITA No.1255/Del/2012 S.No. Details Date Initials Designation 1 Draft dictated on 26/3 Sr. PS/PS 2 Draft placed before author 27,30, Sr. PS/PS Draft proposed & placed before the 3 JM/AM Second Member Draft discussed/approved by Second 4 AM/AM Member 5 Approved Draft comes to the Sr. PS/PS 31/3/15 Sr. PS/PS 6 Kept for pronouncement 31/3 Sr. PS/PS 7 File sent to Bench Clerk 31/3 Sr. PS/PS Date on which the file goes to Head 8 Clerk 9 Date on which file goes to A.R. 10 Date of Dispatch of order