Nadeem Husan, Delhi V. ITO, Ward- 48(3), New Delhi

ITA 1050/DEL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9457 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 10-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH MAHANA
• Keywords: Principle of natural justice; Peak credit; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC-2” BENCH: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA No. 1050/DEL/2019 [Assessment Year: 2010-11 Nadeem Husan 159, Meena Bazar, Jama Masjid, Delhi-110006. PAN- ACCPH8788G Vs Income-tax Officer, Ward-48(3), New Delhi. APPELLANT RESPONDENT Appellant by Shri Rajesh Mahana, Advocate Respondent by Sh. Om Prakash, Sr. DR Date of hearing 18.01.2022 Date of pronouncement 31.01.2022 O R D E R PER KUL BHARAT, JM: This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals)-16, New Delhi, dated 20.12.2018, pertaining to the assessment year 2010-11. The assessee has raised following grounds of appeal: “1. That the Ld. CIT (Appeal) has erred in law and facts in deciding the appeal against the appellant without considering any evidences placed on record. The order of the Ld. CIT (Appeal) is illegal, arbitrary and unreasonable. 2. That the Ld. CIT (Appeal) failed to appreciate the grounds of appeal 2 ITA 1050/Del/2019 Nadeem Husan Vs. ITO and wrongly upheld the action of the Assessing Officer. The action of the CIT (A) is wrong and illegal. 3. That the Ld. CIT (Appeal) and AO had erred in law and facts in sustaining the addition of Rs. 19,01,908/- u/s 68 of the Income Tax Act, 1961 as an unexplained cash deposit by him. The cash deposited outside Delhi were explained and cannot be considered as an income. 4. That the appellant had discharged the onus lay upon him by producing all the relevant evidence of the sale of the goods for the customer outside Delhi. There was no justification with the AO to invoke the provision of section 68 of the Income Tax Act, 1961. The Ld. CIT (A) failed to consider the evidences placed on record by the appellant. 5. That the Ld. CIT(A) erred in law and facts and failed to appreciate and understand the applicability of provision of Section 68 of the Income Tax Act, 1961 in the facts and circumstances. That Ld. AO invoked the provision of Section 68 of the Act, 1961 and CIT (Appeal) has blindly upheld the action of the AO against the appellant, without appreciating the difference of sale proceeds and credit entry in terms of section 68 of the Income Tax Act, 1961 6. That the Ld. CIT(A) and AO erred in law and facts and make addition of the sum of Rs. 19,01,208/- by merely clubbing the total credited amount. That the source being clear as it relates to the sale and services of the goods in Delhi and outside Delhi, which can be evidenced from the bank statement and the sales vouchers produced before the authority for verification. Explanation of cash deposited is related to the activities of the sale. No confirmation could be obtained as it is old case. 7. That the Ld. CIT (A) failed to appreciate the principle of peak credit. This principle is clearly applicable in the case of the appellant as he has explained the source of the cash deposits and corresponding payments, during the period under consideration. 3 ITA 1050/Del/2019 Nadeem Husan Vs. ITO 8. That the Ld. CIT (Appeal) has further erred in law and facts in upholding the action of the AO which is entirely contrary to the provision of Income Tax Act. Therefore the order of the Ld. CIT (Appeal) is illegal, arbitrary and unreasonable. 9. That the judgments and case laws quoted by the Ld. CIT(A) of different courts, which are quite distinguishable in facts and law. That these judgments are not applicable in the case of the Appellant, henceforth the addition so made by AO and confirmed by the CIT(A) by invoking the provision of section 68 of the Income Tax Act, 1961 is untenable. 10. That the appellant craves leave to add or amend any ground of appeal at any time before or at the time of hearing of the appeal.” 2. At the outset learned counsel for the assessee submitted that the Assessing Officer passed an ex parte order against the assessee without giving sufficient opportunity and on appeal to the learned CIT(Appeals) the evidences that were filed were not considered. He submitted that the assessment may be restored to the file of the Assessing Officer in the interest of principles of natural justice. 3. Learned Dr opposed the submissions of the assessee and supported the orders of authorities below. 4. I have heard rival submissions and perused the material available on record. There is no dispute with regard to the fact that the impugned assessment order was passed ex parte to the assessee. Therefore, in the interest of principles of natural justice and more particularly to sub serve the substantial justice the impugned 4 ITA 1050/Del/2019 Nadeem Husan Vs. ITO order is hereby set aside and the assessment is restored to the file of the Assessing Officer to make fresh assessment after giving adequate opportunity to the assessee. Grounds raised in this appeal are allowed for statistical purposes. 5. Appeal of the assessee is allowed for statistical purposes. Sd/- (KUL BHARAT) JUDICIAL MEMBER *Madan PalVerma* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI