Shri Narpal Yadav, Rewari V. ITO, Rewari

ITA 1060/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8035 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 12-04-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 29-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: NARPAL YADAV
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice
• Section: 44AD; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A - SMC , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. KULDIP SINGH , JM ITA NO. 1060 /DEL/2016 : ASSTT. YEAR : 2006 - 07 SH. NARPAL YADAV, S/O SH. RAM PARTAP, VPO MUSEPUR, DISTT. REWARI VS INCOME TAX OFFICER, WARD - 2, REWARI (APPELLANT) (RESPONDENT) PAN NO. A BHPY0421H ASSESSEE BY : SH. NARPAL YADAV, ASSESSEE REVENUE BY : SH. K. K. JAISWAL, DR DATE OF HEARING : 12 .0 4 .201 6 DATE OF PRONOUNCE MENT : 27 .04 .201 6 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 15 .12.2015 OF LD. CIT(A) - II , GURGAON . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN TH IS APPEAL: 1. THAT THE INITIATION OF PROCEEDING U/S 148 IS ILLEGAL AND NOT BASED ON ANY MATERIAL INFORMATION AND REASONS RECORDED ARE AGAINST FACT. AS NO PAYMENT WAS MADE DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2006 - 07. 2. THAT THE LD. ASSE SSING OFFICER AS WELL AS THE LD. CIT(A) ARE NOT JUSTIFIED IN LAW IN TREATING THE ADVANCE PAYMENT MADE FOR THE PURCHASE OF LAND ITA NO . 1060 /DE L/2016 NARPAL YADAV 2 AFTER WITHDRAWING FROM BANK AS UNEXPLAINED INVESTMENT FOR WANT OF DOCUMENTARY EVIDENCE FOR PAYMENT MADE 18 MONTHS AGO. 3. THAT T HE LD. CIT(A) AND LD. AO HAS ERRED IN LAW AND FACTS IN TREATING RS. 10,6007 - AS INVESTMENT MADE IN THE PURCHASE OF LAND BY REJECTING THE EXPLANATION OF THE ASSESSEE EXPLAINING THE SOURCE OF INVESTMENT. 4. THAT THE LD. AO HAS ERRED IN TREATING THE AGRICULT URAL INCOME OF RS. 42,450/ - AS UNPROVED/ UNEXPLAINED INCOME FROM AGRICULTURAL LAND FOR WANT OF FARD AND J FORM. 5. THAT THE LD. AO WAS NOT JUSTIFIED IN LAW IN CHARGING INTEREST WITHOUT SPECIFYING FOR WHAT DEFAULT THE INTEREST WAS BEING CHARGED. 5A. THAT INITIATION OF PROCEEDINGS U/S 148 WAS BEYOND LIMITATION AND THEREFORE WAS ILLEGAL 6 . THE PETITIONER CRAVE LEAVE TO ADD AMEND OR RECIND ANY OF THE GROUND ON OR BEFORE HEARING THE APPEAL. 3. FROM THE ABOVE GROUND, IT IS GATHERED THAT THE ASSESSEE HAS CHA LLENGED THE VALIDITY OF THE INITIATION OF THE PROCEEDINGS U/S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND ALSO THE VARIOUS ADDITIONS MADE BY THE AO. ITA NO . 1060 /DE L/2016 NARPAL YADAV 3 4. FACTS OF THE CASE IN BRIEF ARE THAT THE AO DURING THE COURSE OF ENQUIRY IN TAX EVASION PETITION AVAILABLE IN HIS OFFICE NOTICED THAT THE ASSESSEE HAD PURCHASED A LAND FOR A CONSIDERATION OF RS.6,34,900/ - ON 27.02.2006. HE, THEREFORE, ASKED THE ASSESSEE VIDE LETTER DATED 10.05.2012 TO FURNISH HIS REPLY ON THE INVESTMENTS SO MADE . S INCE THERE WAS NO RESPONSE FROM THE ASSESSEE SIDE, T HE AO ISSUED NOTICE U /S 148 OF THE ACT ON 28.03.2013. I N RESPONSE , THE ASSESSEE FURNISHED THE RETURN OF INCOME ON 29.04.2013 DECLARING TOTAL INCOME OF RS.75,880/ - U/S 44AD OF THE ACT AND AGRICULTURAL IN COME OF RS.42,450/ - . THE ASSESSMENT HOWEVER WAS FRAMED AT AN INCOME OF RS.7, 63,830/ - BY MAKING THE ADDITION OF RS.6,34,900/ - ON ACCOUNT OF INVESTMENT IN AGRICULTURAL LAND, RS.10,600/ - ON ACCOUNT OF PURCHASE OF OTHER LAND AND RS.42,450/ - TREATING THE SAME A S INCOME FROM OTHER SOURCES INSTEAD OF AGRICULTURAL INCOME DECLARED BY THE ASSESSEE. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION MADE BY THE AO BY PASSING THE EX - PARTE ORDER WHILE DOING SO THE LD. CIT(A) OBSERVED THAT THE NOTICE OF HEARING WAS ISSUED ON 27.11.2015 AND THE CASE WAS FIXED FOR HEARING ON 17.12.2015 BUT NOBODY APPEARED ON THE SAID DATE. ITA NO . 1060 /DE L/2016 NARPAL YADAV 4 6. NOW THE ASSESSEE IS IN APPEAL. DURING THE COURSE OF HEARING THE ASSESSEE HIMSELF WAS PRESENT AND SUBMIT TED THAT THE OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED BY THE LD. CIT(A) AND THE APPEAL WAS DISMISSED EX - PARTE WITHOUT HEARING THE ASSESSEE WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. IT WAS ALSO SUBMITTED THAT NO NOTICE OF HEARING ISSUED BY THE LD. CIT(A) WAS RECEIVED BY THE ASSESSEE. 7. IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE. HE SIMPLY MENTIONED THAT THE NOTICE OF HEARING WAS ISSUED ON 27.11.2015 AND THE CASE WAS FIXED FOR HEARING ON 07.12.2015 BUT NOBODY ATTENDED ON BEHALF OF THE ASSE SSEE. HOWEVER, IT IS NOT BROUGHT ON RECORD THAT THE SAID NOTICE WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ITA NO . 1060 /DE L/2016 NARPAL YADAV 5 ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO COOPERATE AND NOT TO SEEK UNDUE OR UNWARRANTED ADJOURNMENTS. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 27 /04 / 2016 ) SD/ - SD/ - ( KULDIP SINGH ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27 /04 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR