Rahul Makkar, New Delhi V. ITO, New Delhi

ITA 1048/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4091 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 12-05-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 10-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Assessee Lawyers: RANI
• Keywords: Opportunity of being heard; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI K. G. BANSAL, ACCOUNTANT MEMBER ITA. NO.1048/D/2010 ASSESSMENT YEAR : 2006-07 SHRI RAHUL MAKKAR VS. INCOME-TAX OFFICER, R/O D-12, CC COLONY, OPP. WARD-20(3), RANA PRATAP BAGH, DELHI NEW DELHI PAN NO.AFBPM 3273P (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI TARUN KUMAR & MS. RANI RESPONDENT BY : SMT. MONA MOHANTY, SR. DR ORDER PER K.G. BANSAL: AM: THIS APPEAL OF THE ASSESSEE EMANATES FROM THE ORDER OF CIT(A)-XXII, NEW DELHI, PASSED ON 21.12.2009 IN I.T . APPEAL NO.194/08-09, PERTAINING TO ASSESSMENT YEAR 2006-07. THE ASSESSEE HAS TAKEN UP 8 GROUNDS IN THE APPEAL. GROUND NO.4 IS THAT THE ORDER OF THE LEARN ED CIT(A) IS CONTRARY TO LAW, ILLEGAL AND INCORRECT AN D IS LIABLE TO BE SET ASIDE BECAUSE HE FAILED TO CONSIDER THAT THE ASSESSING OFFICER COULD HAVE GIVEN THE OPPORTUNITY TO THE ASSESSEE BETWEEN THE LAST DATE OF HEARING I.E., 28.11.2008 AND THE DATE OF PASSING THE ORDER I.E., 29.12.2009. 2 2. THE FACTS ARE THAT THE RETURN OF INCOME WAS FILE D ON 30.10.2007 DECLARING TOTAL INCOME OF RS.1,18,380/-. NOTICE U/S 143(2) DATED 23.07.2007 WAS SERVED ON TH E ASSESSEE. NONE ATTENDED TO THIS NOTICE. SUBSEQUEN TLY A NUMBER OF OPPORTUNITIES WERE GRANTED UNDER THE AFOR ESAID PROVISION AND ALSO U/S 142(1). THESE OPPORTUNITIES WERE ALSO NOT AVAILED OF. THE ASSESSING OFFICER HAS SEP ARATELY INITIATED PROCEEDINGS U/S 271(1)(B) IN RESPECT OF AFORESAID DEFAULTS. THE LAST OPPORTUNITY WAS GRANTED ON 28.1 1.2008 AND AS MENTIONED EARLIER NO COMPLIANCE WAS MADE ON THIS DATE ALSO. THE ASSESSMENT WAS COMPLETED ON 29.12.2008 UNDER THE PROVISIONS OF SECTION 144 DETERMINING THE TOTAL INCOME AT RS.25,48,080/-. WH ILE DOING SO A SUM OF RS.24,29,700/- WAS ADDED TO THE RETURNED INCOME, BEING THE AMOUNT OF CASH DEPOSIT I N THE BANK ACCOUNT MAINTAINED WITH HDFC BANK. 3. AGGRIEVED BY THIS ORDER, THE ASSESSEE FILED APPE AL BEFORE THE CIT(A)-XXII, NEW DELHI. EVIDENCES WERE PRODUCE D BEFORE HIM TO EXPLAIN THE CASH DEPOSITS IN THE BANK . THE ASSESSING OFFICER OBJECTED TO THE ADMISSION OF THE ADDITIONAL EVIDENCE ON THE GROUND THAT THE ASSESSEE HAD BEEN PROVIDING SUFFICIENT OPPORTUNITIES IN THE COUR SE OF ASSESSMENT PROCEEDINGS FOR EXPLAINING CASH DEPOSITS IN THE BANK. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE LEARNED CIT(A) REDUCED THE ADDITION T O THE TOTAL INCOME RETURNED BY THE ASSESSEE TO RS.11,19,7 00/-. 3 3.1 BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSING OFFICER COULD HAVE GRANTED ONE M ORE OPPORTUNITY TO THE ASSESSEE BETWEEN 28.11.2008 AND 29.12.2008. ON THE OTHER HAND, THE LEARNED DR SUBM ITS THAT THE ASSESSING OFFICER WAS NOT GRANTED SUFFICIE NT OPPORTUNITY OF BEING HEARD BY THE LEARNED CIT(A) IN RESPECT OF CASH DEPOSITS MADE IN THE BANK ACCOUNT. THE ASSESSING OFFICER HAD OBJECTED TO ADMISSION OF ADDI TIONAL GROUND AND HIS REMAND REPORT DID NOT CONTAIN OBJECT IONS ON MERITS. IN VIEW OF THE AFORESAID SUBMISSIONS, I T WAS THE COMMON CASE OF BOTH THE PARTIES THAT IN TERMS O F GROUND NO.4 OF THE APPEAL, THE MATTER MAY BE RESTOR ED TO THE FILE OF THE ASSESSING OFFICER FOR MAKING FRESH ASSESSMENT AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3.2 WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. IN TERMS OF COMMON SUBMISSION OF BOTH THE PARTIES THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER, WE R ESTORE THE MATTER TO HIS FILE FOR MAKING FRESH ASSESSMENT AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. NEEDLESS TO SAY THAT THE ASSESSEE SHALL APPEAR BEFORE THE ASSESSING OFFICER IN RESPONSE TO HIS NOTICE WITHOUT FAIL AND SUBMIT REQUISITE DETAILS FO R FINALIZING OF THE ASSESSMENT. 4 4. IN RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 5. THIS ORDER WAS PRONOUNCED IN OPEN COURT ON 12.05 .2010 SOON AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- ( C.L. SETHI ) ( K.G. BANSA L ) JUDICIAL MEMBER ACCOUNTANT ME MBER DT.12.05.2010. NS COPY FORWARDED TO:- 1. SHRI RAHUL MAKKAR, R/O D-12, CC COLONY, OPP. RAN A PRATAP BAGH, DELHI-7. 2. INCOME TAX OFFICER, WARD 20(3), NEW DELHI. 3. THE CIT 4. THE CIT (A), NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY BY ORDER (ITAT, NEW DELHI).