Om Prakash, Ghaziabad V. ITO, Ward 2(1) , Ghaziabad

ITA 1112/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3527 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: MADHUR JAIN
• Keywords: Principle of natural justice; Reason to believe
• Section: 54B; 54F; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1112/DEL/2018 ASSESSMENT YEAR: 2009-10 OM PRAKASH C/O JAIN SINGH & CO., 2 (BASEMENT), CENTRAL LANE, BENGALI MARKET, NEW DELHI. PAN: BOEPP0588P VS. ITO, WARD-2(1), GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MADHUR JAIN, ADVOCATE REVENUE BY : SHRI S.L. ANURAGI, SR. DR DATE OF HEARING : 19.02.2019 DATE OF PRONOUNCEMENT : .02.2019 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 15 TH DECEMBER, 2017 OF THE CIT(A)-2, NOIDA, RELATING TO ASSESSMENT YEAR 2009-10. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT ON THE BAS IS OF AIR INFORMATION RECEIVED THAT THE ASSESSEE, DURING THE FINANCIAL YEAR 2008-09 HAD DEPOSITED CASH IN HIS SB ACCOUNT OF RS.61,03,000/- MAINTAINED WITH ORIENTAL BANK OF COMMERCE, SIKROD, GHAZIABAD, THE CASE OF THE ASSESSEE WAS REOPENED AND NOTICE U/ S 148 WAS ISSUED. HOWEVER, THERE WAS NO PROPER COMPLIANCE FROM THE SIDE OF THE ASSES SEE. THE ASSESSEE, THROUGH HIS ADVOCATE, HAD FILED CERTAIN DETAILS STATING THAT TH E ASSESSEE HAS SOLD LAND FOR ITA NO.1112/DEL/2018 2 RS.48,74,000/- AND THE MONEY WAS DEPOSITED IN THE B ANK. IT WAS FURTHER SUBMITTED THAT CERTAIN AMOUNTS WERE WITHDRAWN FROM THE BANK AND WE RE SUBSEQUENTLY DEPOSITED. THE ASSESSING OFFICER ASKED FOR CERTAIN DETAILS, HOWEVE R, NO SUCH DETAILS WERE FURNISHED FOR WHICH THE ASSESSING OFFICER PROCEEDED TO COMPLE TE THE ASSESSMENT U/S 144 OF THE IT ACT AND MADE ADDITION OF RS.35,19,000/- AS UNEXP LAINED CASH DEPOSIT IN THE BANK ACCOUNT. SIMILARLY, HE HAS ALSO MADE ADDITION OF R S.4,45,267/- AS LONG-TERM CAPITAL GAIN ON ACCOUNT OF SALE OF THE AGRICULTURAL LAND. THUS, THE ASSESSING OFFICER DETERMINED THE TOTAL INCOME AT RS.39,64,267/-. 2.1 IN APPEAL, THE LD.CIT(A) DISMISSED THE APPEAL F ILED BY THE ASSESSEE BY OBSERVING AS UNDER:- HOWEVER, IN RESPONSE OF FIRST NOTICE FOR HEARING I SSUED ON 06.09.2017, FIXING DATE FOR HEARING 19.10.2017, AN APPLICATION FOR ADJ OURNMENT WAS FILED ON 19.10.2017 AND HEARING WAS ADJOURNED TO 03.10.2017. DURING THE APPELLATE PROCEEDINGS, THE APPELLANT FILED VARIOUS APPLICATIO NS FOR ADJOURNMENT DATED 10.10.2017, 30.10.2017, 20.11.2017, 24.11.2017 AND 05.12.2017. CONSIDERING THE REQUEST, THE APPELLANT WAS GIVEN SUFFICIENT, OP PORTUNITIES TO REPRESENT THE CASE. DESPITE PROVIDING FINAL OPPORTUNITIES ON 07.1 1.2017, 20.112017, 24.11.2017, 05.12.2017 AND 11.12.2017 TO REPRESENT THE CASE, THE ASSESSEE DID NOT AVAIL THE OPPORTUNITY. THE ABOVE FACTS MAKE IT ABUNDANTLY CLEAR THAT THE APPELLANT IS DELIBERATELY DELAYING THE APPELLATE PR OCEEDINGS AND NOT INTERESTED IN THE ADJUDICATION. THE APPEAL IS, THEREFORE, DECIDED ON MERITS AS BELOW. 5.2 IT IS GATHERED THAT THE APPELLANT HAD DEPOSITED CASH AMOUNTING TO RS.61,03,000/- IN SAVING BANK ACCOUNT DURING F.Y. 2 008-09 OUT OF WHICH SOURCE OF RS. 35,19,000/- REMAINED UNEXPLAINED. FURTHER TH E ASSESSEE SOLD PROPERTY FOR RS. 48,74,000/- OUT OF WHICH THE ASSESSEE HAD PURCH ASE AGRICULTURAL LAND IN HIS NAME AND IN THE NAME OF HIS WIFE FOR RS. 39,77,800/ - WHICH WAS CONSIDERED FOR THE PURPOSE OF COMPUTING THE LONG, TERM CAPITAL GAI NS. THE AO, HOWEVER, HAD NOT GIVEN THE BENEFIT OF DEDUCTION U/S 54F OF THE A CT AS THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE OF CONSTRUCTION OF HOUSE OVER SUCH LAND. THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITIES DURING ASSESSMENT PR OCEEDINGS TO FILE THE EXPLANATION OF THE ABOVE BUT ASSESSEE DID NOT MAKE ANY COMPLIANCE. DESPITE SEVERAL OPPORTUNITIES GIVEN DURING ASSESSMENT PROCE EDINGS AS WELL AS APPELLATE PROCEEDINGS, NO PLAUSIBLE EVIDENCE COULD BE PRODUCE D BY THE APPELLANT TO ITA NO.1112/DEL/2018 3 EXPLAIN THE SOURCE OF CASH DEPOSIT AND CONSTRUCTION OF HOUSE. IN VIEW OF THESE FACTS, I DO NOT FIND ANY REASON TO INTERFERE WITH T HE ACTION OF THE AO. HENCE, THE ADDITION MADE BY THE AO IS UPHELD. ALL GROUNDS OF A PPEAL ARE DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. 3. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) ERRED IN LAW AND FACTS BY CONFIRMIN G THE ADDITION OF RS.35,19,000/- AND DENYING THE DEDUCTION U/S 54F TO THE ASSESSEE. 2. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAVING EXPLAINED THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT, THE ONUS SHIFTED ON THE DEPARTMENT TO REBUT THE SAME, WHICH THE LD. AO FAILED TO DO. 3. THAT THE LD. CIT(A) FAILED TO APPRECIATE THE EVIDE NCES ON RECORD GIVEN BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT SHO WING CONSTRUCTION OF RESIDENTIAL HOUSE IN F.Y. 2008-09. 4. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE WAS ENTITLED TO EXEMPTIONS U/S 54B AND 54F SIMULTANEOUSLY. 5. THAT THE LD. CIT(A) ERRED IN NOT CONSIDERING THE F ACT THAT THE ASSESSMENT ORDER COULD NOT HAVE BEEN PASSED U/S 144 OF THE ACT . 6. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT THE NOTICE ISSUED TO THE ASSESSEE U /S 148 OF THE ACT WAS WITHOUT THE AUTHOR ITY OF LAW AND VAGUE. 7. THAT THE LD. AO ISSUED THE NOTICE U/S 148 WITHOUT ANY REASON TO BELIEVE AS CONTEMPLATED UNDER THE ACT. 8. THAT THE LD. AO FAILED TO COMMUNICATE THE REASONS RECORDED FOR ISSUING THE NOTICE U/S 148 OF THE ACT. 9. THAT THE NOTICE ISSUED U/S 148 OF THE ACT IS WITHO UT PROPER SANCTION AND APPROVAL AS REQUIRED UNDER THE ACT. 10. THAT THE ORDERS PASSED BY THE LD. AO AND THE LD. CI T(A) ARE IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AS NO PROPER HEAR ING WAS AFFORDED TO THE ASSESSEE. IT IS, THEREFORE, PRAYED THAT THE ADDITIONS/DISALLO WANCES MADE BY THE LD. ASSESSING OFFICER MAY KINDLY BE DELETED AND A FRESH ORDER BE PASSED GIVING RELIEF TO THE APPELLANT. ITA NO.1112/DEL/2018 4 ANY OTHER RELIEF, WHICH THIS HON'BLE TRIBUNAL MAY D EEM FIT AND PROPER BE GIVEN TO THE APPELLANT. 4. I HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH TH E SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD. I FIND DUE TO NON-SUBM ISSION OF VARIOUS DETAILS BEFORE THE ASSESSING OFFICER, HE MADE TWO ADDITIONS AS MENTION ED EARLIER. SINCE THERE WAS NO PROPER COMPLIANCE FROM THE SIDE OF THE ASSESSEE, TH E LD.CIT(A) ALSO DISMISSED THE APPEAL FILED BY THE ASSESSEE BY SUSTAINING THE VARI OUS ADDITIONS MADE BY THE ASSESSING OFFICER. IT IS THE SUBMISSION OF THE LD. COUNSEL F OR THE ASSESSEE THAT THE MATTER WAS NOT PROPERLY HANDLED BY THE LOWER AUTHORITIES FOR WHICH ALL THESE THINGS HAPPENED AND GIVEN AN OPPORTUNITY, THE ASSESSEE NOW IS IN A POSI TION TO SUBSTANTIATE HIS CASE. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THIS MATTER BACK TO THE FILE OF T HE ASSESSING OFFICER WITH A DIRECTION TO GIVE ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBST ANTIATE HIS CASE. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE ASSESSING OFFI CER TO SUBSTANTIATE HIS CASE WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT FAILING W HICH THE ASSESSING OFFICER IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. I HO LD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STAT ISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 2 1.02.2019. SD/- ( R.K. PANDA) ACCOUNTANT MEMFBE R DATED: 21 ST FEBRUARY, 2019 DK ITA NO.1112/DEL/2018 5 COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI