Firay Singh, New Delhi V. Income Tax Officer, New Delhi

ITA 1039/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8338 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 28-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 20-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Keywords: Business income
• Section: 144

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2: NEW DELHI BEFORE SHRI A.T.VARKEY, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.1039/DEL/2015 (ASSESSMENT YEAR: 2010-11) FIRAY SINGH, U-141, GROUND FLOOR, SHAKARPUR, NEW DELHI VS. INCOME TAX OFFICER, WARD-36(3), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY: SH. B.R.R. KUMAR, SR. DR DATE OF HEARING 28 / 01 /2016 DATE OF PRONOUNCEMENT 12 / 04 /2016 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A)-XIX, NEW DELHI FOR THE ASSESSMENT YEAR 2010-11. 2. THE APPEAL WAS FIXED FOR HEARING FOR TODAY I.E. 28.01.2016. NONE FROM THE SIDE OF THE ASSESSEE APPEARED BEFORE US AND THEREFORE THIS APPEAL IS DECIDED ON THE BASIS OF THE FACTS AVAILABLE ON THE RECORD. 3. THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS AN INDIVIDUAL FILED HIS RETURN OF INCOME ON 31 ST JULY 2010 DECLARING A TOTAL TAXABLE INCOME OF RS.168140/-. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. THE INFORMATION FILED WITH THE ASSESSING OFFICER THAT RS. 1 LAC IN CASH WAS DEPOSITED ON 24.06.2009 IN ACCOUNT NO.455701/- WITH KARNATAKA BANK LIMITED, LAXMI NAGAR BRANCH, NEW DELHI. THE ASSESSEE EXPLAINED THAT THIS IS OUT OF LOAN REPAYMENT RECEIVED FROM ONE SANJAY CHOUDHURY. THE ASSESSEE EXPLAINED THAT HE HAD ADVANCED RS. 4 LACS TO MR. SANJAY CHOUDHURY OUT OF HIS AGRICULTURAL INCOME RECEIPT. THE ENQUIRY LETTER SENT TO MR. SANJAY CHOUDHURY RETURNED BACK BY POSTAL PAGE 2 OF 3 AUTHORITIES WITH THE REMARK LEFT AND THEREFORE THE AO HAS MADE AN ADDITION OF RS.1 LAC BEING CASH DEPOSIT IN THE BANK AND OF RS 4 LACS ON ACCOUNT OF LOAN GIVEN TO MR. SANJAY CHOUDHURY. AGAINST THIS ADDITION OF RS. 5 LACS ASSESSEE IS IN APPEAL BEFORE THE LD CIT(A), WHO CONFIRMED THE ADDITION OF RS.1 LAC AND DELETED THE ADDITION OF RS.90,000/- OUT OF RS.4 LACS ON ACCOUNT OF LOAN GIVEN TO SANJAY CHOUDHRUY IN PRIOR YEARS AND THEREFORE CANNOT BE THE INCOME OF THIS YEAR. RESULTANTLY HE CONFIRMED ADDITION OF RS. 310,000/- ON THAT ACCOUNT. AGAINST THIS THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE NOTED THAT THE LD AO HAS PASSED ASSESSMENT ORDER U/S 144 OF THE ACT AND BEFORE THE LD CIT(A) IT WAS SUBMITTED THAT RS.1 LAC DEPOSITED IN THE BANK ACCOUNT ARE OUT OF THE BUSINESS RECEIPTS OF THE ASSESSEE FROM WHICH PROFIT HAS ALRREDAY BEEN DECLARED BY THE ASSESSEE OF RS.168140/- AND REGARDING THE LOAN TO SANJAY CHOUDHURY, HE SUBMITTED THAT DUE TO ILL HEALTH OF CHARTERED ACCOUNTANT DETAILS COULD NOT BE SUBMITTED BEFORE THE AO. 5. THE LD DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 6. WE HAVE CAREFULLY PERUSED THE RIVAL CONTENTIONS AND THE FACTS AVAILABLE ON RECORD DESPITE NOTICE NONE APPEARED FOR THE ASSESSEE AND HENCE THE ISSUE IS DECIDED ON THE BASIS OF INFORMATION AVAILABLE ON RECORD. FIRSTLY WE ARE OF THE VIEW THAT AS THE RETURN OF INCOME IS SELECTED FROM SCRUTINY UNDER CASS , THE AO IS PRECLUDED FROM MAKING ANY FURTHER ADDITION OTHER THAN CASS REASONS WITHOUT OBTAINING HE PERMISSION OF HIGH AUTHORITIES. ACCORDING TO THE INSTRUCTIONS OF CBDT SPECIFIC ISSUE BASED ENQUIRY IS TO BE CONDUCTED ONLY IN THOSE SCRUTINY CASES WHICH HAVE BEEN SELECTED ON THE PARAMETER(S ) OF AIR/CIB/26AS DATA . IN SUCH CASES, THE ASSESSING OFFICER, SHALL ALSO CONFINE THE QUESTIONNAIRE ONLY TO THE SPECIFIC ISSUES PERTAINING TO AIR/CIB/26AS DATA . WIDER SCRUTINY IN THESE CASES CAN ONLY BE CONDUCTED AS PER THE GUIDELINES AND PROCEDURES STATED IN INSTRUCTION NO. 7/2014. THIS FACT OF OBTAINING PERMISSION OR FOLLOWING THE SPECIFIC PROCEDURE IS NOT AVAILABLE ON RECORD. FURTHER ON PERUSAL OF THE ASSESSMENT ORDER IT IS APPARENT THAT IT HAS BEEN PASSED U/S 144 OF THE ACT BECAUSE OF THE REASON THAT THE CHARTERED ACCOUNTANT OF THE ASSESSEE COULD NOT PRODUCE EVIDENCE ON THE LAST DATE OF HEARING DUE TO HIS ILL HEALTH AND ALSO COULD NOT INFORMED THE ASSESSEE REGARDING HIS HEALTH. THEREFORE IT IS APPARENT THAT ASSESSEE HAS NOT BEEN PAGE 3 OF 3 GRANTED THE OPPORTUNITY OF HEARING. FURTHER THE ADDITION HAS ALSO NOT BEEN MADE AFTER ISSUING A SHOW CAUSE NOTICE BY THE LD AO. IN VIEW OF THE ABOVE FACTS WE ASIDE THE APPEAL TO THE FILE OF THE LD AO TO DECIDE THE ISSUE AFRESH ON MERIT AFTER GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12/04/2016. -SD/- -SD/- ( A.T.VARKEY) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 12/04/2016 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI