TMI Blog2022 (10) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 - DELHI HIGH COURT] Assessment order passed by the A.O. is not sustainable in law and, therefore, the assessment order is quashed. - Decided in favour of assessee. - ITA No.420/Del/2020 - - - Dated:- 19-10-2022 - Shri Chandra Mohan Garg, Judicial Member For the Assessee : Shri Anoop Sharma And Shri Sanjay Prashar, Advocates For the Revenue : Shri Anuj Garg, Sr. DR ORDER This appeal filed by the assessee is directed against the order dated 15.11.2019 of the CIT(A), Ghaziabad, relating to Assessment Year 2010-11. 2. Briefly stated facts of the case are that the assessee is an individual and has filed his return of income on dated 01.06.2010 declaring total income at Rs.2,15,500/-. In this case, AIR information was received by the A.O. that the assessee has sold residential house no.3/1045, Sector-3, Vasundhara, Ghaziabad for a consideration of Rs.46,55,000/- during financial year 2009- 10 relevant to the assessment year 2010-11. To verify the chargeability to tax under the head capital gains on the sale of immovable property, verification letters dated 04.03.2016, 25.04.2016, 09.09.2016 and 17.01.2017 were issued and sent to the assessee through spee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. Act, 1961 and also initiated penalty proceedings under section 271 (1)(c) of the I.T. Act, 1961 separately for concealing of long term capital gains income. 2.1. Aggrieved by the order of the A.O, the assessee carried the matter in appeal before the Ld. CIT(A), who vide order dated 15.11.2019 treated the addition made by the A.O. on account of long term capital gains at Rs.27,93,000/- as short term capital gains and enhanced the amount to Rs.46,55,000/-. 3. Aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before the Tribunal and has raised the following grounds : 1. That on the facts and in the circumstances of the case and in law, the order passed by Learned Income Tax Officer, Ward-2(4), Ghaziabad (Ld. AO) under section 143(3) read with section 147 and order passed by Learned Commissioner of Income Tax (Appeals), Ghaziabad [Ld. CIT(A)] under section 250 of the Income-tax Act, 1961 (the Act), is wrong and bad in law. 2. That on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in confirming the action of the Ld. AO in passing the order under section 143(3) of the Act, without issuing the initial notice under section 143( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee at the very outset submitted that the A.O. has not issued the statutory notice under section 143(2) of the I.T. Act, 1961 and, therefore, in absence of such notice, the assessment framed by the A.O. cannot be sustained in the eye of law and prayed that the assessment be annulled. In support of this contention, the Learned Counsel for the Assessee drew the attention of the Bench of the assessment order in which the A.O. has not mentioned about issuance of statutory notice under section 143(2) of the I.T. Act, 1961. The Learned Counsel for the Assessee also drew the attention of Bench at pages 9 to 11 of the paper book with respect to order sheet entries wherein the A.O. issued notices under section 142(1) only, but, no notice under section 143(2) has been issued to the assessee and in absence of such notice, the assessment framed under section 143(3)/147 of the I.T. Act, 1961 cannot be sustained in the law and, he, therefore, prayed that the assessment framed by the A.O. be annulled. The Learned Counsel for the Assessee also further drew the attention of the Bench of the order of the Ld. CIT(A) at page-8, para 6.1, in which, it is stated that notice under section 143(2) of the I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute, the relevant observations of the Coordinate Bench of Delhi Tribunal in the case of Flovel Energy Pvt. Ltd., New Delhi vs., ACIT, Circle-9(1), New Delhi (supra) are reproduced as under : 18. We find, under identical circumstances, the Tribunal in assessee s own case in the immediately preceding assessment year, has held the assessment order to be bad in law on account of non-issuance of notice u/s 143(2) of the IT Act, 1961 within the stipulated time prescribed under the Act. The relevant observations of the Tribunal at para 5 read as under:- 5. Heard the arguments of both the parties and perused the material available on record. We find that the judgment of Broadway Shoe Co . 99 Taxmann 83 relied by the ld. DR i s not applicable to the facts of the case as in that case the assessee has not filed a return in response to the notice issued u/s 148 of the Act whereas in the instant case, the assessee has filed return u/s 139(1) of the Act in regular course and al so replied to the notice that the return filed by them on 15.10.2010 may be treated as returned filed in response to the notice u/s 148 issued on 09.01.2015. Under such circumstances, it is incumbent upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be treated as return filed in response to notice u/s 148, therefore, respectfully following the decision of the Tribunal in assessee s own case for the immediately preceding assessment year, we hold that the assessment order passed by the Assessing Officer is not in accordance with law and has to be quashed. The legal ground raised by the assessee challenging the validity of the assessment order is accordingly allowed. Since the assessee succeeds on the legal grounds, the various other grounds raised by the assessee become academic in nature and, therefore, are not being adjudicated. 20. In the result, the appeal filed by the assessee is allowed. 6.1. Since the facts of the present case are squarely covered by the order of Coordinate Bench of the Tribunal in the case of Flovel Energy Pvt. Ltd., New Delhi (supra) and in absence of any contrary decision brought to my notice by the Ld. D.R. that the said decision has been overruled, stayed or modified by any higher judicial forum, I hold that the assessment order passed by the A.O. is not sustainable in law and, therefore, the assessment order is quashed. Accordingly, the grounds of appeal no.2 raised by the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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