ACIT, New Delhi V. Mrs. Seema Jain, New Delhi

ITA 1147/DEL/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 6702 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 23-11-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 15-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PN SHASTRI
• Keywords: Search and seizure; Opportunity of being heard
• Section: 132; 144

Judgement Text

ITA NO. 1147/DEL/2010 A.Y. 2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 1147/DEL/2010 A.Y. : 2006-07 ACIT - CC - 12, ROOM NO. 330, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI VS. MRS. SEEMA JAIN, H-78, SOUTH EXTN., NEW DELHI (PAN/GIR: AAHPJ3093P) (APPELLANT ) (RESPONDENT ) ASSEESSEE BY : SH. M.P. RASTOGI, ADV. & SH. P.N. SHASTRI, CA DEPARTMENT BY : S H. GAJANAND MEENA, C.I.T.(D.R.) PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 24.12. 2009 PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE FIRST ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS WRONG IN ACCEPTING ADDITIONAL EVIDENC E FILED AS ENOUGH OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN CONTRAVENTION TO RULE 46A . 3. IN THIS CASE ASSESSMENT WAS FRAMED U/S 144 OF THE IT ACT. THE CASE IS RELATED TO SEARCH AND SEIZURE OPERATION U/ S 132 OF THE IT ACT. DURING THE COURSE OF ASSESSMENT, NO REPLY TO ASSESSI NG OFFICER S QUERY WAS FILED. ASSESSING OFFICER PROCEEDED TO MA KE ASSESSMENT TOTAL TAXABLE INCOME OF ` 31,38,871/-. ITA NO. 1147/DEL/2010 A.Y. 2006-07 2 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) IN PARA 3.1 OF HIS ORDER NOTED THAT SIN CE THE ASSESSING OFFICER PASSED ORDER U/S 144 WHEN NO DETAILS WAS S UBMITTED ON BEHALF OF THE ASSESSEE DESPITE GIVING SUFFICIENT OPPORTUNI TIES, THE PASSING OF EXPARTE ORDER IS HELD AS JUSTIFIED. HOWEVER, THE PAPER BOOK SUBMITTED EXPLAINING THE INFORMATION SUBMITTED AND THE PAST INF ORMATION ON RECORD ARE BEING CONSIDERED. THEREAFTER, LD. COMMIS SIONER OF INCOME TAX (APPEALS) PROCEEDED TO ADJUDICATE THE ISSUE AND PARTLY ALLOWED THE APPEAL. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BE FORE US. 6. AT THE THRESHOLD, IT HAS BEEN CONTENDED THAT NO INFORMATION WHATSOEVER WAS PROVIDED TO THE ASSESSING OFFICER DESPITE SUFFICIENT OPPORTUNITIES WERE BEING GIVEN TO THE ASSESSEE. THIS FACT HAS CLEARLY BEEN ACCEPTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), DESPITE THAT HE HAS PROCEEDED TO ADJUDICATE THE ISSU E ON THE BASIS OF PAPER BOOK AND EXPLANATION AND INFORMATION SUBMITTED , WITHOUT GIVING THE ASSESSING OFFICER AN OPPORTUNITY TO GO THROUGH THE SAME. 6.1 LD. COUNSEL OF THE ASSESSEE FAIRLY AGREED TO THE PROPOSITION THAT ASSESSING OFFICER HAS NOT BEEN GIVEN PROPER OPPORT UNITY BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO GO THROUGH THESE SUBMISSIONS AND DOCUMENTS WHICH WERE NOT SUBMITTED BE FORE THE ASSESSING OFFICER. UNDER THE CIRCUMSTANCES, BOTH THE COUNSEL FAIRLY AGREED THAT THE MATTER SHOULD BE REMITTED TO THE FILE S OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH. A CCORDINGLY, THE ISSUE IS REMITTED TO THE FILES OF THE ASSESSING OFFICER T O CONSIDER THE SAME AFRESH. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. ITA NO. 1147/DEL/2010 A.Y. 2006-07 3 7. SINCE WE ARE REMITTING THE MATTER FOR FRESH CONSID ERATION ON THE PRELIMINARY ISSUE TO THE FILES OF THE ASSESSING OFFI CER, THE OTHER ISSUES RAISED IN THE APPEAL ARE NOT BEING ADJUDICATED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26/11/2010 UP ON CONCLUSION OF HEARING. SD/- SD/- [I.P. BANSAL] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 26/11/2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES