Manish Kumar, Uttar Pradesh V. ITO, Shamli

ITA 1177/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3535 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: C K GOEL
• Keywords: Principle of natural justice; Additional evidence
• Section: 147; 68; 148

Judgement Text

ITA NO. 1177 /DEL./201 7 ASSESSMENT Y EAR: 2009 - 10 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B BENCH NEW DELHI) BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER & SHRI AMIT SHUKLA , JUDICIAL MEMB E R ITA NO. 1177 / DEL./20 1 7 ASSESSMENT YEAR: 20 0 9 - 1 0 MANISH KUMAR S/O SRI MEGHPAL, R/O H.NO. 395, KHALAPAR, NEHRU MARKET, SHAMLI, UTTAR PRADESH VS. IT O WARD 1 ( 4 ) PALIKA MARKET, NEAR HANUMAN TILLA, SHAMLI (APPELLANT ) (RESPONDENT) (PAN: BGXPK7849F ) ASSESSEE BY: SH. C.K. GOEL ADVOCATE REVENUE BY: SH. ANIL KUMAR SHARMA, SR. DR DATE OF HEARING 1 8 / 0 4 /201 7 DATE OF PRONOUNCEMENT 1 8 / 0 4 /201 7 ORDER PER AMIT SHUKLA, JUDICIAL MEMBER : TH E AFORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE AGAINST I MPUGNED ORDER DATED 17 . 1 1 .201 6 , PASSED BY THE LD. CIT (APPEALS) MUZAFFARPUR FOR THE QUANTUM OF ASSESSMENT PASSED U/S 1 4 7 R.W.S. 144 FOR THE A.Y. 20 0 9 - 1 0 . IN THE GROUNDS OF APPEAL , THE ASSESSEE HAS RAISED AS MANY AS 29 GROUNDS OF APPEAL RUNNING INTO 9 PAGES WHICH ARE NOTHING BUT VA RIOUS ARGUMENTS , HENCE ARE IN VIOLATION OF RULE 8 OF INCOME TAX APPELLATE TRIBUNAL RULES, 1963 . WE ACCORDINGLY, ARE PROCEEDING AS PER THE ISSUES INVOLVED. PAGE 2 OF 5 2. THE ASSESSEE IS MAINLY AGGRIEVED BY THE ADDITION OF RS. 11,58,400/ - ON ACCOUNT OF CASH DEPOSITS M ADE IN THE SAVING BANK ACCOUNT BASED ON AIR INFORMATION AND ALSO THE REOPENING OF THE ASSESSMENT U/S 147 AS T HE ASSESSEE S CASE WAS REOPENED ONLY ON THE BAS IS OF SAME AIR INFORMATION. AS NOTED BY THE LD. ASSESSING OFFICER, IN THE ASSESSMENT ORDER, NONE APPEAR ED ON BEHALF OF ASSESSEE DESPITE ISSUANCE OF NOTICE U/S 148 AND ALSO VARIOUS OTHER NOTICES SENT FROM TIME TO TIME. ACCORDINGLY, ASSESSING OFFICER HAD NO OPTION BUT TO PASS THE ORDER U/S 14 4 TREATING THE CASH DEPOSIT MADE IN THE SAVING S BANK ACCOUNT A GGREGATING RS. 11,58,400/ - AS INCOME OF THE ASSESSEE U/S 68 . 3. BEFORE THE LEARNED CIT (APPEALS) , ASSESSEE CHALLENGED THE REOPENING OF THE ASSESSMENT U/S 148 AND ALSO THE ISSUANCE AND SERVICE OF VARIOUS NOTICES ON THE GROUND THAT THE ADDRESS O N WHICH THE NOTICES WERE SENT IS NOT CORRECT AS THE ASSESSEE HAD LEFT THE VILLAGE LONG TIME BACK. HOWEVER , THE LEARNED CIT (APPEALS) REJECTED THE ASSESSEE S CONTENTION ON THE GROUND IN F ORM NO. 35 ADDRESS OF THE ASSESSEE HAS BEEN SHOWN AS THE SAME VILLAGE. REGARDING CASH DEPOSITS ON VARIOUS DATES, IT WAS SUBMITTED THAT THE ASSESSEE WAS HAVING INCOME FROM HIRE OF A TRUCK AND AGRICULTURAL INCOME. SINCE THE ASSESSEE S INCOME WAS BELOW TAX LI MIT , THEREFORE , HE WA S NOT REQUIRED TO FILE THE RETURN OF INCOME. T HE LEARNED CIT APPEALS) REJECTED THE ASSESSEE S CONTENTION AND CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT NO EVIDENCES COULD BE FILED BY THE ASSESSEE TO EXPLAIN HIS CASE . 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES AND SUBMITTED THAT PAGE 3 OF 5 THE ENTIRE INFORMATION SHOULD NOT BE MADE AVAILABLE BEFORE THE LEARNED CIT (APPEALS) DUE TO FACT THAT BANKS W ERE BUSY POST DEMONETIZATION AND DESPITE REQUESTS REQUISITE INFORMATION AND DETAILS COULD NOT BE MADE AVAILABLE . IT WAS ONLY WHEN THE BANKS STARTED FUNCTIONING NORMALLY; THE VARIOUS DOCUMENTS WERE OBTAINED FROM THE BANK WHICH IS BEING FILED BEFORE THE TRIB UNAL AS ADDITIONAL EVIDENCE . HE SUBMITTED THAT IN LIGHT THESE ADDITIONAL EVIDENCES AND VARIOUS OTHER MATERIALS PLACED ON RECORD THE MATTER SHOULD BE DECIDED AFRESH. 5 . ON THE OTHER HAND , THE LD. DR SUBMITTED THAT IF THE ADDITIONAL EVIDENCES ARE TO BE ADMI TTED TH EN THE MA T TER SHOULD BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER FOR PROPER ADJUDICATION AND FOR PASSING THE ASSESSMENT ORDER AFRESH AND IN ACCORDANCE WITH THE LAW. 6 . AFTER CONSIDERING THE RIVAL SUBMISSIONS AND ON PERUSAL OF THE IMPUGNED ORDER S, WE FIND THAT THERE WA S NO COMPLIANCE BY THE ASSESSEE IN RESPONSE TO VARIOUS NOTICES ISSUED BY THE LD. ASSESSING OFFICER AND THAT IS WHY THE ASSESSMENT ORDER WAS PASSED EXPARTE . THE ASSESSEE HAS CLAIMED THAT NONE OF THE NOTICES HAVE BEEN RECEIVED BY HIM INCLUDING THE JURISDICTIONAL NOTICE ISSUED U/S 148. NOW BEFORE US , VARIOUS GROUNDS HAVE BEEN RAISED NOT ONLY CHALLENGING THE VALIDITY OF THE REOPENING U/S 147/148 BUT ALSO ALLEGING VIOLATION OF NATURAL JUSTICE. APART FROM THAT, ADDITIONAL EVIDENCES HA VE BEEN FILED TO SUBSTANTIATE THE CASE. THE REASON CITED BY THE ASSESSEE FOR NOT FILLING THE SAME BEFORE CIT (A) APPEARS TO BE A REASONABLE GROUND. HENCE, I N THE INTEREST OF JUSTICE AND UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE OPIN I ON T HAT THE ENTIRE MAT T ER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING PAGE 4 OF 5 OFFICER WHO SHALL PROVIDE THE COPY OF THE REASONS RECORDED TO THE ASSESSEE ; AND THE ASSESSEE IF REQUIRED CAN FILE HIS OBJECTIONS AND ALSO FURNISH ALL THE EVIDENCES EXPLAINING /SUBSTANTIATING ITS CASE BEFORE THE ASSESSING OFFICER INCLUDING THE ADDITIONAL EVIDENCES FILED BEFORE US . ACCORDINGLY , THE ENTIRE MATTER IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO PASS FRESH ASSESSMENT ORDER AND IN ACCORDANCE WITH THE LAW AFT ER GIVING DUE PROPER OPPORTUNITIES TO THE ASSESSEE TO EXPLAIN HIS CASE. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER P RONOUNCED IN THE OPEN COURT ON 1 8 . 0 4 .201 7. ( N.K. SAINI ) (AMIT SHUKLA) ACCOUNTANT MEMB E R (JUDICIAL MEMBER) DATED: 1 8 . 0 4 .2017 NARENDER COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR PAGE 5 OF 5 DATE DRAFT DICTATED ON 1 8 .0 4 .2017 DRAFT PLACED BEFORE AUTHOR 1 8 .0 4 .2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 18 . 4 .2017 KEPT FOR PRONOUNCEMENT ON FILE SENT TO THE BENCH CLERK 19 . 4 .2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.