Susanta Kumar Mishra, Hyderabad V. ITO, Ward 66(4), New Delhi

ITA 1161/DEL/2022

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 0314 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 23-05-2022
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Assessee Lawyers: SHUBHASH ACHARYA; COMMODITY TRANSACTIONS
• Keywords: Principle of natural justice; Transactions in derivatives; Reasonable cause; Corroborative evidences
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘SMC’ NEW DELHI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA No.1161/Del/2022 Assessment Year: 2011-12 Sh. Susanta Kumar Mishra, SMQ-141/11A, Range Area, Air Force Station, Begumpet, Hyderabad Vs. Income Tax Officer, Ward-66(4), New Delhi PAN :AHEPM5141R (Appellant) (Respondent) ORDER This is an appeal by the assessee against order dated 05.05.2022 passed by National Faceless Appeal Centre (NFPC), Delhi, for the assessment year 2011-12. 2. Grounds raised by the assessee are as under: 1. Because the impugned order is bad in law and contrary to the facts of the case and therefore, if permitted to stand, would result in miscarriage of justice. 2. Because the learned respondent erred, in law and on the facts and circumstances of the case in confirming the addition of Rs.5,11,307/- to the income of the appellant by the learned Assessing Officer (A.O). The A.O erroneously added the amount in the income of the Appellant by Sh. Shubhash Acharya, Advocate Sh. P.C. Yadav, Advocate Respondent by Sh. Om Prakash, Sr. DR Date of hearing 27.07.2022 Date of pronouncement 05.08.2022 2 ITA No.1161/Del/2022 AY: 2011-12 appellant on presuming that the profit of such amount has accrued to the appellant by commodity transactions and thereby demand of Rs.2,25,953 as additional tax to be paid pertaining to the A.Y- 2011-12 was made. 3. Because the learned respondent has gravely erred in upholding the decision of the learned A.O on the ground that the appellant has failed to submit any response or produced any documentary evidence on record 4. Because the migration of the appeal from the jurisdiction of the CIT(A) to the jurisdiction of the respondent was purely the departmental and administrative work. That the failure or fault to put the written submissions filled by the appellant’s Authorized Representative Mr. Shubhash Acharya dated. 06.02.2020 on record and here by not informing the same to the respondent, is completely on the part of the learned CIT(A). Thus, the appellant shall not suffer from this act of inadequacy. 5. Because the learned A.O was in haste or flurry during the proceedings and thereby insufficient opportunities were provided to the appellant to put up his submissions and to produce documentary evidences. 6. Because the Order has been passed in gross violation of Principles of Natural Justice insofar as the learned A.O has failed to provide reasonable opportunities to the appellant to explain his case. 7. The appellant craves to amend, modify, alter, add or forego any ground of appeal at any time before or during the hearing of this appeal. 3. Briefly the facts are, the assessee is a resident individual, stated to be employed with Indian Air Force and posted at different airports. It is stated that since, the assessee did not have any tax liability for the assessment year under dispute, he did not file any return of income. Be that as it may, based on AIR/CIB information indicating that the assessee had entered into commodity exchange 3 ITA No.1161/Del/2022 AY: 2011-12 transaction and invested sum of Rs.10,22,61,480/- during the year under consideration, the Assessing Officer initiated proceeding under section 147 of the Act. As observed by the Assessing Officer, in response to notice issue under section 148 of the Act, the assessee filed his return of income on 14.10.2018. Subsequently, in reply to show-cause notice, the assessee furnished his reply. However, alleging that the assessee did not furnish any documentary evidence, the Assessing Officer estimated profit on the commodity transaction by applying the rate of 5% and added back an amount of Rs.5,11,307/-. Against the assessment order so passed, the assessee preferred an appeal before the first appellate authority. However, by the impugned order, the first appellate authority disposed of assessee’s appeal sustaining the addition made by the Assessing Officer. 4. Before me, learned counsel appearing for the assessee submitted that the assessee was prevented from furnishing supporting evidence before the Assessing Officer as he was preoccupied with work in various airports. As regards the proceedings before the first appellate authority, learned counsel submitted, at the relevant point of time, the assessee was posted at Srinagar Airport and due to suspension of internet services, the 4 ITA No.1161/Del/2022 AY: 2011-12 assessee did not receive the notice of hearing, hence, could not appear before the first appellate authority. However, he submitted, the submissions filed by assessee along with documentary evidences were not at all examined by learned first appellate authority. Thus, he submitted, the issue may be restored back to the Assessing Officer for examining assessee’s claim vis-à-vis the documentary evidences furnished. 5. Learned Departmental Representative agreed for restoration of issue to the Assessing Officer. 6. I have considered rival submissions and perused the materials on record. Undisputedly, the Assessing Officer has made the addition purely due to lack of supporting evidence. Whereas, learned first appellate authority has sustained the addition alleging failure of the assessee to represent his case. The submissions made before me by learned counsel for the assessee as well as materials placed, certainly advances the case of the assessee that he was prevented by reasonable cause in making representation before the first appellate authority and the Assessing Officer due to nature of his duty and the place where he was posted at the relevant point of time. It is also a fact on record that first appellate authority has 5 ITA No.1161/Del/2022 AY: 2011-12 not properly appreciated the submission filed by the assessee along with supporting evidence. 7. Keeping in view the aforesaid factual position, I deem it appropriate to restore this issue back to the Assessing Officer for fresh adjudication after due and reasonable opportunity of being heard to the assessee. Grounds are allowed for statistical purposes. 8. In the result, the appeal is allowed for statistical purposes. Order pronounced in the open court on 5 th August, 2022 Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER Dated: 5 th August, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi