M/s. Maheshwari & Co., New Delhi V. ITO, New Delhi

ITA 1204/DEL/2013

• Counselvise Citation: 120420114 RSA 2013
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 30-01-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 04-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KEYUR PATEL
• Assessee Lawyers: VINAY BAHL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 148; 144

Judgement Text

ITA NO. 1204/DEL/13 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SHRI B. C. MEENA, ACCOUNTANT MEMBER I.T.A .NO.-1204/DEL/ 2013 (ASSESSMENT YEAR-2005-06) MAHESHWARI & CO. B-7/1, SAFDARJUNG ENCLAVE EXTENSION NEW DELHI P AN-AALFM0143M (APPELLANT) VS ITO WARD-37(3) NEW DELHI (RESPONDENT) APPELLANT BY SH. VINAY BAHL, ADV RESPONDENT BY SH. KEYUR PATEL, SR. (DR) ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 2/1/2013 OF CIT(A) XXVIII, NEW DELHI PERTAINING TO 2005-06 ASSE SSMENT YEAR CHALLENGING THE ACTION OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS.15 LAC MADE BY THE ASSESSING OFFICER. 2. THE RECORD SHOWS THAT THE ASSESSEE RETURNED AN I NCOME OF RS. 8,45,280/-. THE ASSESSMENT WAS REOPENED U/S 148 ON THE GROUND T HAT THE AO FORMED THE BELIEF THAT RS.15 LAC REPRESENTED INCOME OF THE ASSESSEE C HARGEABLE TO TAX WHICH HAD ESCAPED ASSESSMENT. IN RESPONSE TO THE SAME, IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE RETURN FILED VIDE RECEIPT NO.5008 DATED 31.10.2005 MAY BE TREATED AS COMPLIANCE OF NOTICE U/S 148. THEREAFT ER NOTICE U/S 143(2) WAS ISSUED AND SERVED BY 29.07.2010 FIXING THE DATE OF HEARING AS 09.08.2010. INITIALLY ITA NO. 1204/DEL/13 2 ADJOURNMENTS WERE SOUGHT STATING THAT FOR TRACING T HE RECORDS OF 2005-06 ASSESSMENT YEAR SOMETIME IS REQUIRED. HOWEVER AFT ER GIVING SOME OPPORTUNITY THE ASSESSMENT ORDER WAS PASSED U/S 144 ON 20.12.20 10. 3. AGGRIEVED BY THIS THE ASSESSEE WENT IN APPEAL BE FORE THE CIT(A). BEFORE THE SAID AUTHORITY ADDITIONAL EVIDENCE WAS SOUGHT TO BE RELIED UPON. CANVASSING FOR ADMISSION OF FRESH EVIDENCE IT WAS CONTENDED THAT THE ASSESSEE COULD NOT FILE CONFIRMATION FROM THE 9 PARTIES BEFORE THE AO FROM WHOM ADVANCES WERE RECEIVED AGAINST AGRICULTURAL LANDS SITUATED AT VILLAGE ILLA HBAS, TEHSIL DADRI, DISTRICT GAUTAMBUDH NAGAR (U.P). IT WAS FURTHER STATED THAT THE EVIDENCE COULD NOT BE OBTAINED IN TIME. HOWEVER, THE SAID CLAIM OF THE AS SESSEE WAS NOT ACCEPTED BY THE CIT(A). 3. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEF ORE THE TRIBUNAL ON VARIOUS GROUNDS CHALLENGING THE ADDITION MADE INCLUDING GRO UND NO. 4 WHICH READS AS UNDER:- 4. THAT NO REASONABLE OPPORTUNITY OF BEING HEARD A ND PRESENT EVIDENCES HAVE BEEN GRANTED BY THE ASSESSING OFFICER AND THE CIT(A). THE CIT(A) HAS ERRED IN NOT INDEPENDENTLY APPRECIATING THE EVI DENCES FURNISHED BY THE APPELLANT BEFORE HIM. 4. WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE TH ROUGH THE MATERIAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE SAM E, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE IT WOU LD BE APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AS WELL AS THE ASSESSMENT ORDER AND RESTORE THE ISSUE BACK TO THE FILE OF THE A.O WITH THE DIRECTION TO ADMIT THE ADD ITIONAL EVIDENCE AND PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IT IS SEEN THAT DURING THE ASSESSMENT PROCEEDINGS ONLY TWO MONTHS TIME FROM OCT. 2010 (WHEN THE NOTICE WAS ISSUED) TO DEC. 2010 (WHEN THE ASSESSMENT ORDER WAS PASSED) HAS BEEN MADE AVAI LABLE TO THE ASSESSEE TO BRING ON RECORD THE FACTS RELATABLE TO 2005-06 ASSESSMEN T YEAR. THE SAID TIME CANNOT ITA NO. 1204/DEL/13 3 BE SAID TO BE SUFFICIENT TIME TO BRING THE NECESSAR Y EVIDENCES. THE EVIDENCE IT IS SEEN CONSISTS OF THE NAMES ALONGWITH THEIR PAN NUMB ER ETC AS FOUND MENTIONED IN THE STATEMENT OF FACTS FILED BEFORE THE CIT(A) AVAI LABLE ON RECORD. THE EVIDENCE IT IS SEEN IS RELEVANT EVIDENCE AND DESERVES TO BE CON SIDERED ON MERIT. ACCORDINGLY THE ISSUE IS RESTORED BACK WITH THE ABOVE DIRECTION . THE ASSESSEE IS AT LIBERTY TO FILE EVIDENCE IN SUPPORT OF ITS CLAIM AND THE AO SHALL E XAMINE THE FRESH EVIDENCES UNPREJUDICED AND CONSIDERING THEIR VERACITY SHALL P ASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS DIRECTED TO PARTICIPATE FU LLY IN LETTER AND SPIRIT IN THE PROCEEDINGS. THE SAID ORDER IS PRONOUNCED IN THE P RESENCE OF THE PARTIES IN THE OPEN COURT. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 07 TH OF FEBRUARY 2014. SD/- SD/- (B. C. MEENA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:-07 /02 /2014 *R. NAHEED & AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI