Delhi High Court
Commissioner Of Income Tax vs Bhushan Kumar on 7 September, 2010
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
{ITA No.1135 of 2009}
&
{ITA No.1148 of 2009}
Judgment delivered on:07.09.2010
(1) ITA No.1135 of 2009
COMMISSIONER OF INCOME TAX . . . APPELLANT
Through: Ms. Rashmi Chopra, Advocate
VERSUS
BHUSHAN KUMAR . . .RESPONDENT
Through: Mr. Satyen Sethi, Advocate
(2) ITA No.1148 of 2009
COMMISSIONER OF INCOME TAX . . . APPELLANT
Through: Ms. Rashmi Chopra, Advocate
VERSUS
BHUSHAN KUMAR . . .RESPONDENT
Through: Mr. Satyen Sethi, Advocate
CORAM:-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J. (oral)
1. These two appeals pertain to the assessment years 1994-95
and 1995-96. In respect of both these assessment years, the
Assessing Officer has issued notice under Section 148 of the Act and
reopened the reassessment proceedings after receiving the report of
the DVO as per which the investments made by the assessee in the
construction of property No. 29, Sector 15A, NOIDA was shown less.
The Income Tax Appellate Tribunal vide impugned judgment
(whereby appeals of both the years have been decided) held that
the issuance of notice under Section 148 of the Act were not valid. In
this behalf, we find from the orders of the Tribunal that it is recorded
that the original assessment under Section 143 (3) was completed
on 18th March, 1997 and reference was made to the DVO on 27th
March, 1998. Thus, according to the Tribunal since this reference
was made to the DVO after the completion of the assessment, this
was not permissible. However, these are the dates which pertain to
the assessment year 1994-05 only. In so far as assessment year
1995-96 is concerned, it is stated by the learned counsel for the
respondent assessee that assessment was completed only on 25th
March, 1998 whereas reference to DVO was made before that i.e.
27th March, 1998. It is clear therefrom that on the aforesaid premise,
the notice under Section 148 of the Act in respect of assessment year
1994-05 only could be set aside.
2. Thus, in so far as ITA 1148/2009 is concerned, which pertains
to the assessment year 1994-95 is hereby dismissed.
3. As far as ITA 1135/2009 for the assessment year 1995-06 is
concerned, since there is a factual error and Tribunal has not
considered that assessment year was completed on 25th March, 1998
and matter was referred before that on 27th January, 1998, discussion
contained in the last sub paragraph of para 7 qua this assessment
year would not be valid. The observation of the Tribunal that in view
of this judgment of the Jurisdictional Court in Bawa Abhai Singh vs.
Deputy Commissioner of Income Tax, 253 ITR 83 is
distinguishable is also not correct. For this reason alone, we set
aside the order of the Tribunal so far as it relates to the assessment
year 1995-06 is concerned.
4. We may state that we have not otherwise arrived at any finding
as to whether judgment in Bawa Abhai Singh (supra) would be
applicable or not. However, it is also necessary to record that learned
counsel for the revenue had also argued that the observations of the
Tribunal in para 7.9 wherein the Tribunal has observed that the
assessee produced the requisite details asked for by the Assessing
Officer at the time of assessment is also not correct as in the
'reasons to believe' it is specifically recorded that during the course
of assessment proceedings the assessee justified the investment
but the correct and complete details of investment were not filed.
We only observe that this is again a matter to be argued before the
Tribunal and the Tribunal shall apply its independent mind while
dealing with this appeal afresh. ITA 1135/2009 is disposed of in
aforesaid terms.
(A.K. SIKRI)
JUDGE
(REVA KHETRAPAL)
JUDGE
SEPTEMBER 7,2010
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