Pusham Bansal v. The Commissioner Of Income Tax-Iiludhiana

In the High Court for the States of Punjab and Haryana at Chandigarh… ITA No.439 of 2007 Date of decision:25.3.2008 Pusham Bansal Appellant Versus The Commissioner of Income Tax-IILudhiana Respondent Coram: Hon’ble Mr.Justice Satish Kumar MittalHon'ble Mr.Justice Rakesh Kumar Garg Present:Mr.Pankaj Jain, Advocatefor the Appellant. Rakesh Kumar Garg,J The assessee has filed the present appeal under Section260-A of the Income Tax Act, 1961 (for short' the Act') against theorder of the Income Tax Appellate Tribunal, Delhi Bench Delhi (forshort the “Tribunal”) passed in I.T.A.No.5153/DEL/2004 dated09.2.2007 for the assessment year 1996-97 raising the followingsubstantial questions of law:- (i)“Whether the Tribunal is justified in having dismissed the appeal of the assessee as infructuous mechanicallyoverlooking the legality and the merits ? (ii)“Whether the Tribunal order is sustainable against theprovisions of section 153(2A) as per which the set asideproceedings are barred by limitation ? The assessee, who is the Proprietor of M/s VikasEnterprises is in the Lottery business. During the impugned year, theassessee filed the return of income at an amount of Rs.97,290/- on30.3.1998 which was processed under Section 143(1)(a) of the Acton 31.3.1998.. Case was selected for scrutiny and assessment wasmade under Section 144 on 15.3.1999 at an amount ofRs.45,90,048/- making therein the following additions:- “Total income/loss as declared in the returnof income:(-)Rs.97,290/- Add: (i) Rs.17,87,338/- as unexplained income as discussed in body of the order: of the order: (ii) Rs.2 lakhs investments in car as discussed above as discussed above (iii)Investment in FDRs as discussed above as discussed above 17,87,338/- - 2,00,000/ (+)19,87,338/- 25,00,000/- (iv) Rs.2 lakhs is added in the absence of any details in respect of expenses as discussed absence of any details in respect of expenses as discussed - 2,00,000/-(+)46,87,338/ 45,90,048/- “ The assessee filed an appeal against the saidassessment order which was allowed vide order dated 4.4.2000 andaddition of Rs.17,87,338/- and Rs.2 lacs was deleted. The issueregarding addition of Rs.25 lacs on account of investment in FDRswas remanded to the Assessing Officer. Against the said order, thedepartment has filed ITA No.3682/Del/2000 before the Tribunal. TheTribunal vide its order dated 25.11.2005 passed in the said appealset aside both the orders of Commissioner of Income Tax(Appeals)and assessment order and remanded the matter to the Assessing ITA No.439 of 2007 Officer for de novo assessment. The said appeal was decided by the Tribunal vide order dated 25.11.2005 , which reads as under:- “We therefore, set aside both the orders of the learnedCIT(Appeals) and the assessment order and direct theAssessing Officer to frame the assessment de novo afterallowing the assessee to produce computerized accountsand after making necessary inquiries and verification inrelation thereto./ In view of these directions, it is notnecessary to adjudicate upon the two issues raised bythe revenue in this appeal.” It is also relevant to mention here that during theintervening period vide order dated 30.3.2002, the Assessing Officer,in compliance of the order dated 4.4.2004 of the Commissioner ofIncome Tax(Appeals) made the addition of Rs.25 lacs asundisclosed income on account of investment of the assessee in theform of FDRs. The assessee filed an appeal against the said orderbefore the Commissioner of Income Tax(Appeals), who vide his orderdated 20.2.2004 dismissed the appeal filed by the assessee. Theoperative part of the order of the Commissioner of Income Tax(Appeals) is reproduced:- It is also relevant to mention here that during theintervening period vide order dated 30.3.2002, the Assessing Officer,in compliance of the order dated 4.4.2004 of the Commissioner ofIncome Tax(Appeals) made the addition of Rs.25 lacs asundisclosed income on account of investment of the assessee in theform of FDRs. The assessee filed an appeal against the said orderbefore the Commissioner of Income Tax(Appeals), who vide his orderdated 20.2.2004 dismissed the appeal filed by the assessee. Theoperative part of the order of the Commissioner of Income Tax(Appeals) is reproduced:- “The appeal was fixed for hearing on 12.11.2003,9.12.2003, 8.1.2004 and 17.2.2004 by issuing notices.Neither the appellant nor his authorized representativeattended the hearing and also nor was any applicationfor adjournment filed. Persistent non compliance by the appellant leads to the apparent conclusion that he hasnothing to say regarding the grounds raised by him inappeal. In view thereof I have no alternative but todismiss the appeal. In the result the appeal isdismissed.” From the above order, it is clear that in spite of thevarious notices issued to the assessee for hearing of the case, noone was present on his behalf and therefore, the Commissioner ofIncome Tax(Appeals) came to the conclusion that there is nothing tosay by the assessee regarding the grounds raised by him in theappeal. The assessee further filed appeal, i.e.,ITANo.5153/Del/2004 before the Tribunal, which was dismissed videimpugned order dated 9.2.2007.While dismissing the appeal, theTribunal has taken note of the fact that vide order dated 25.11.2005passed in ITA No.3682/Del/2000, the Tribunal has already set asidethe order of assessment and de novo assessment by the AssessingOfficer has been ordered. Shri Pankaj Jain, Advocate, learned counsel for theappellant has argued that the Tribunal was not justified whiledismissing the appeal of the appellant as infructuous, as the samehas resulted into a miscarriage of justice to the assessee. He hasfurther argued that the order of the Tribunal is in divergence to therules of judicial consistency and the matter has been remandedmechanically to the Assessing Officer overlooking the period oflimitation prescribed under Section 153(2)(a) of the Act, wherein the proceedings have already become time barred as on 31.3.2007. We find no force in the arguments raised by the learnedcounsel for the appellant. A perusal of the impugned order, i.e., orderdated 9.2.2007 passed in ITA No.5153/Del/2004 shows that theTribunal has taken note of the fact that in the appeal filed by theRevenue before the Tribunal, i.e., ITA No.3682/Del/2000 decided on25.11.2005, the Tribunal has set aside the order of theCommissioner of Income Tax(Appeals) dated 4.4.2004 passed inappeal filed by the assessee and the original order of assessmentdated 15.3.1999 passed by the Assessing Officer against theassessee and the Assessing Officer has been directed to frame theassessment de novo. While dismissing the appeal of the assesseevide impugned order, the Tribunal has also made it clear that theAssessing Officer shall frame fresh assessment as per the order ofthe Tribunal dated 25.11.2005. Thus, no prejudice has been causedto the appellant. Even otherwise, we are of the view that the questionraised by the appellant does not arise from the impugned order of theTribunal. As before the Tribunal, the assessee has challenged theorder of the Commissioner of Income Tax(Appeals) dated 20.2.2004vide which addition of Rs.25 lacs on account of undisclosed incomeregarding investment in FDRs was upheld and the said order waspassed by the Commissioner of Income Tax(Appeals) as assesseehas failed to appear before him despite many adjournments grantedto him. Thus we find no infirmity in the order of the Tribunal. Nosuch question of law as raised by the appellant arises in the presentappeal for our determination. Dismissed.