ITA No.439 of 2007 1 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-II Ludhiana Respondent Coram: Hon’ble Mr.Justice Satish Kumar Mittal Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr.Pankaj Jain, Advocate for the Appellant. Rakesh Kumar Garg,J The assessee has filed the present appeal under Section 260-A of the Income Tax Act, 1961 (for short' the Act') against the order of the Income Tax Appellate Tribunal, Delhi Bench Delhi (for short the “Tribunal”) passed in I.T.A.No.5153/DEL/2004 dated 09.2.2007 for the assessment year 1996-97 raising the following substantial questions of law:- (i)“Whether the Tribunal is justified in having dismissed the appeal of the assessee as infructuous mechanically overlooking the legality and the merits ? (ii)“Whether the Tribunal order is sustainable against the provisions of section 153(2A) as per which the set aside proceedings are barred by limitation ? ITA No.439 of 2007 2 The assessee, who is the Proprietor of M/s Vikas Enterprises is in the Lottery business. During the impugned year, the assessee filed the return of income at an amount of Rs.97,290/- on 30.3.1998 which was processed under Section 143(1)(a) of the Act on 31.3.1998.. Case was selected for scrutiny and assessment was made under Section 144 on 15.3.1999 at an amount of Rs.45,90,048/- making therein the following additions:- “Total income/loss as declared in the return of income: (-)Rs.97,290/- Add: (i) Rs.17,87,338/- as unexplained income as discussed in body of the order: 17,87,338/- (ii) Rs.2 lakhs investments in car as discussed above 2,00,000/- (+)19,87,338/- (iii)Investment in FDRs as discussed above 25,00,000/- (iv) Rs.2 lakhs is added in the 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 said assessment order which was allowed vide order dated 4.4.2000 and addition of Rs.17,87,338/- and Rs.2 lacs was deleted. The issue regarding addition of Rs.25 lacs on account of investment in FDRs was remanded to the Assessing Officer. Against the said order, the department has filed ITA No.3682/Del/2000 before the Tribunal. The Tribunal vide its order dated 25.11.2005 passed in the said appeal set 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 3 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 learned CIT(Appeals) and the assessment order and direct the Assessing Officer to frame the assessment de novo after allowing the assessee to produce computerized accounts and after making necessary inquiries and verification in relation thereto./ In view of these directions, it is not necessary to adjudicate upon the two issues raised by the revenue in this appeal.” It is also relevant to mention here that during the intervening period vide order dated 30.3.2002, the Assessing Officer, in compliance of the order dated 4.4.2004 of the Commissioner of Income Tax(Appeals) made the addition of Rs.25 lacs as undisclosed income on account of investment of the assessee in the form of FDRs. The assessee filed an appeal against the said order before the Commissioner of Income Tax(Appeals), who vide his order dated 20.2.2004 dismissed the appeal filed by the assessee. The operative 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 representative attended the hearing and also nor was any application for adjournment filed. Persistent non compliance by the ITA No.439 of 2007 4 appellant leads to the apparent conclusion that he has nothing to say regarding the grounds raised by him in appeal. In view thereof I have no alternative but to dismiss the appeal. In the result the appeal is dismissed.” From the above order, it is clear that in spite of the various notices issued to the assessee for hearing of the case, no one was present on his behalf and therefore, the Commissioner of Income Tax(Appeals) came to the conclusion that there is nothing to say by the assessee regarding the grounds raised by him in the appeal. The assessee further filed appeal, i.e.,ITA No.5153/Del/2004 before the Tribunal, which was dismissed vide impugned order dated 9.2.2007. While dismissing the appeal, the Tribunal has taken note of the fact that vide order dated 25.11.2005 passed in ITA No.3682/Del/2000, the Tribunal has already set aside the order of assessment and de novo assessment by the Assessing Officer has been ordered. Shri Pankaj Jain, Advocate, learned counsel for the appellant has argued that the Tribunal was not justified while dismissing the appeal of the appellant as infructuous, as the same has resulted into a miscarriage of justice to the assessee. He has further argued that the order of the Tribunal is in divergence to the rules of judicial consistency and the matter has been remanded mechanically to the Assessing Officer overlooking the period of limitation prescribed under Section 153(2)(a) of the Act, wherein the ITA No.439 of 2007 5 proceedings have already become time barred as on 31.3.2007. We find no force in the arguments raised by the learned counsel for the appellant. A perusal of the impugned order, i.e., order dated 9.2.2007 passed in ITA No.5153/Del/2004 shows that the Tribunal has taken note of the fact that in the appeal filed by the Revenue before the Tribunal, i.e., ITA No.3682/Del/2000 decided on 25.11.2005, the Tribunal has set aside the order of the Commissioner of Income Tax(Appeals) dated 4.4.2004 passed in appeal filed by the assessee and the original order of assessment dated 15.3.1999 passed by the Assessing Officer against the assessee and the Assessing Officer has been directed to frame the assessment de novo. While dismissing the appeal of the assessee vide impugned order, the Tribunal has also made it clear that the Assessing Officer shall frame fresh assessment as per the order of the Tribunal dated 25.11.2005. Thus, no prejudice has been caused to the appellant. Even otherwise, we are of the view that the question raised by the appellant does not arise from the impugned order of the Tribunal. As before the Tribunal, the assessee has challenged the order of the Commissioner of Income Tax(Appeals) dated 20.2.2004 vide which addition of Rs.25 lacs on account of undisclosed income regarding investment in FDRs was upheld and the said order was passed by the Commissioner of Income Tax(Appeals) as assessee has failed to appear before him despite many adjournments granted to him. ITA No.439 of 2007 6 Thus we find no infirmity in the order of the Tribunal. No such question of law as raised by the appellant arises in the present appeal for our determination. Dismissed. (RAKESH KUMAR GARG) JUDGE March 25,2008 (SATISH KUMAR MITTAL) nk JUDGE