Ms. Neeru Kansal, Panchkula V. ITO, Mohali

ITA 1143/CHANDI/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6986 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N K SAINI ITP
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 1143/CHD/2016 ASSESSMENT YEAR: 2009-10 MS. NEERU KANSAL, VS. THE ITO, D/O SHRI JAGDISH RAI MITTAL, WARD 6(4), H. 652, SECTOR 11, PANCHKULA. MOHALI. PAN NO. AMMPK4823H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.K.SAINI, ITP RESPONDENT BY : SMT. CHANDER KANTA, SR.DR DATE OF HEARING : 29.06.2017 DATE OF PRONOUNCEMENT : 11.08.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 06.09.2016 OF CIT (APPEALS )-2 GURGAON PERTAINING TO 2009-10 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS : 1. THE ORDER PASSED BY THE LEARNED CIT (A) IS CON TRARY TO LAW & FACTS OF THE CASE. 2. THE LEARNED CIT (APPEAL) HAS ERRED IN LAW IN CONFIR MING THE ADDITION OF RS. 12,61,000/- MADE U/S 144 OF IT ACT 1961 ON THE GROU ND THAT ASSESSEE HAS FILED NEW EVIDENCE WITHOUT MAKING A REQUEST FOR ADMITTING THE SAME UNDER RULE 46A, WHEREAS NO NEW EVIDENCE OR DOCUMENT WAS FILED BEFORE CIT(A). 3. THE LEARNED CIT (APPEAL) HAS ERRED IN LAW IN CONFIR MING THE ADDITION OF RS. 12,61,000/- MADE U/S 144 OF IT ACT 1961 ON THE GROU ND THAT ARGUMENTS GIVEN BEFORE CIT (A) ARE NEW AND FOR THE ADMITTANCE OF SUCH ARGU MENTS, AN APPLICATION UNDER RULE 46 A WAS REQUIRED TO BE FILED WHICH NOTION IS AGAIN ST THE PROVISIONS OF LAW. 4. THE LEARNED CIT (APPEAL) HAS ERRED IN LAW IN CONFIR MING THE ADDITION OF RS. 12,61,000/- MADE U/S 144 OF IT ACT 1961 WITHOUT CON SIDERING THE ARGUMENTS OF THE ASSESSEE ONLY ON THE GROUND THAT NO SUCH EXPLANATIO N WAS TENDERED BEFORE THE AO. 5. THE APPELLANT CRAVES LEAVE TO ADD TO OR AMEND ANY G ROUND OF APPEAL BEFORE THE DISPOSAL OF APPEAL. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE AO IN TH E SCRUTINY PROCEEDINGS MADE AN ADDITION OF RS. 12,61,000/- AS THE SAID AMOUNT WAS FOUND DEPOSITED IN ASSESSEE'S SAVING BANK ACCOUNT NO.096 701500020 WITH ICICI BANK, DERA BASSI. IN APPEAL BEFORE THE FIRST APPE LLATE AUTHORITY, PART RELIEF WAS GRANTED AS THE ADDITION, ONLY UPTO THE PEAK AM OUNT WAS SUSTAINED. ITA 1143/CHD/2016 A.Y. 2009-10 PAGE 2 OF 3 2.1 THE SPECIFIC EXPLANATION OF THE ASSESSEE IN REGA RD TO THE DEPOSIT OF RS. 1 LAC EXPLAINABLE FROM A WITHDRAWAL OF INDIAN OVERSEAS B ANK, PANCHKULA WAS REJECTED ON THE GROUND THAT IT COULD BE SUPPORTED ONLY BY A NEW PIECE OF EVIDENCE AND SINCE NO FRESH APPLICATION FOR FRESH EVIDENCE W AS FILED, THE EXPLANATION WAS HELD TO BE NOT ACCEPTABLE. 2.2 THE CLAIM OF DEPOSIT OF RS. 9 LAC ON 27.06.2008 BY THE MANAGER OF ICICI BANK IN THE SAID LADYS ACCOUNT WAS ALSO CONSIDERE D TO BE UNBELIEVABLE CONSIDERING THE FACT THAT THE AMOUNT WAS WITHDRAWN ON 0 1.07.2008. ACCORDINGLY, THE APPEAL WAS DISMISSED. 3. THE LD. AR INVITING ATTENTION TO THE ASSESSMENT ORDER SUBMITTED THAT THOUGH THE ASSESSMENT IS MADE U/S 144, HOWEVER, AS PER SR.NO. 13 AND 14, THE ASSESSEE ON 23.09.2011 AND 05.10.2011 FILED SEPARATE SUBMISSIONS BEFORE THE AO. ACCORDINGLY, IT WAS SUBMITTED THAT THE DET AILS OF THE INDIAN OVERSEAS BANK SOUGHT TO BE RELIED UPON BEFORE THE CIT(A ) WERE NOT FRESH EVIDENCE AS THE DETAILS HAD ALREADY BEEN MADE AVAILABLE TO THE AO. APART FROM THAT, THE SUBMISSION OF THE ASSESSEE IN SUPPORT OF TH E ASSERTIONS THAT RS. 9 LACS WAS DEPOSITED AND WITHDRAWN BY MR. R.C.MEHANDIRA TTA, BRANCH MANAGER, AS IT WAS NEW BRANCH LOCATED IN THE PREMISES OW NED BY HER HUSBAND, IT WAS SUBMITTED IS SUPPORTED BY AN AFFIDAVIT OF T HE ASSESSEE AND THESE HAVE NOT BEEN CONSIDERED WHILE ADJUDICATION. IN TH E CIRCUMSTANCES, IT WAS HIS PRAYER THAT EITHER NECESSARY RELIEF MAY BE GRA NTED OR THE ISSUES MAY BE RESTORED. 4. THE LD. SR.DR RELIED UPON THE IMPUGNED ORDER. THE P RAYER MADE IN THE CONTEXT OF THE SUBMISSIONS NOT HAVING BEEN CONSIDERED WERE NOT C ONTROVERTED OR OBJECTED TO. 5. HAVING HEARD THE SUBMISSIONS AND CONSIDERING THE PECU LIAR FACTS AND CIRCUMSTANCES OF THE CASE, IN THE LIGHT OF THE SUBMISSIONS O F THE PARTIES BEFORE THE BENCH, I FIND THAT WITHOUT GETTING INTO THE DEB ATE WHETHER IT IS FRESH EVIDENCE OR EVIDENCE ALREADY AVAILABLE FOR THE AO, IT W OULD BE APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER BACK TO TH E FILE OF THE CIT(A) ACCEPTING THE ORAL UNDERTAKING BY THE LD. AR THAT THE A SSESSEE SHALL PLACE FULL FACTS AND EVIDENCES BEFORE THE CIT(A) IN SUPPORT OF HER CLAIM. THE LD. CIT(A) IS DIRECTED TO CONSIDER THE EVIDENCE, OBTAIN A REMAN D REPORT, IF NEED BE AND THEREAFTER PROCEED TO DECIDE THE APPEAL IN ACCOR DANCE WITH LAW. NEEDLESS TO SAY THAT THE OPPORTUNITY SO PROVIDED SHOULD NOT BE ABUSED BY THE ASSESSEE AND IN THE EVENTUALITY OF ABUSE OF THE SAME , CIT(A) WOULD BE AT ITA 1143/CHD/2016 A.Y. 2009-10 PAGE 3 OF 3 LIBERTY TO PASS SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AFTER PROVIDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPO SES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH AUGUST,2017. SD/- (DIVA SINGH) JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.