Mrs. S.D. Malik, New Delhi V. DCIT, New Delhi

ITA 1282/DEL/2012

• Counselvise Citation: 128220114 RSA 2012
• Duration Of Justice: 2 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 08-01-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Keywords: Gift; Opportunity of being heard
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. B.C.MEENA, ACCOUNTANT MEMBER I.T.A .NO.1282 /DEL/201 2 (ASSESSMENT YEAR - 2 004 - 05 ) S.D.MALIK, C - 152, FF, LAJPAT NAGAR - II, NEW DELHI P AN - AAMPM9405D (APPELLANT) VS DCIT, CENTRAL CIRCLE - 20, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI - 110055. (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH.SATPAL SINGH, SR. DR ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 30 . 0 1.2012 OF CIT(A) - X XXI , N EW DELHI PERTAINING TO 200 4 - 05 ASSESSMENT YEAR ON VARIOUS GROUND S . HOWEVER AT THE TIME OF HEARING AN ADJOURNMENT WAS MOVED ON BEHALF OF THE ASSESSEE STATING THAT PARTICULARS OF THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW ARE BEING OBTAINED IN ORDER TO DEMONSTRATE THE PERVERSITY OF FINDING IN THE IMPUGNED ORDER. C ONSIDERING THE MATERIAL AVAILABLE ON RECORD THE REQUEST FOR TIME WAS REJECTED , T AKING THE FOLLOWING GROUNDS RAISED BEFORE US: - D. THE LEARNED CIT(A) ERRED IN LAW AND IN FACTS OF THE CASE IN HOLDING THAT THE APPEAL WAS NOT MAINTAINABLE DUE TO THREE DAYS A LLEGED DELAY. HAVING HIMSELF RETURNED PERVERSE FINDINGS IN UPHOLDING THE ERRONEOUS ASSESSMENT ORDER AFTER DULY NOTIFYING AND HEARING THE APPELLANT WITHOUT GIVING ANY HINT OF SUCH A VIEW BEING NURSED AGAINST THE APPELLANT THE DELAY IF ANY IS DEEMED TO HAVE BEEN CONDONED AND THE APPEAL IS LIABLE TO HELD AS MAINTAINABLE. 2. THE RECORD SHOWS THAT THE ASSESSEE RETURNED AN INCOME OF RS. 13,52,418/ - BY WAY OF FILING A RETURN ON 03.08.2007 AFTER ISSUANCE OF NOTICE UNDER SECTION 148 ON INCOME TAX ACT 1961 AND RECO RDING OF THE FOLLOWING REASONS , T HE ASSESSEE WAS REQUIRED TO EXPLAIN THE TRANSACTION IN THE IMPOUNDED DOCUMENTS: - 2 I.T.A .NO. - 1282 /DEL/201 2 AS PER INFORMATION ON RECORD, THE ASSESSEE HAD INTRODUCED RS.9,70,000/ - IN HER CAPITAL A/C AS GIFTS RECEIVED DURING THE FINANCIAL YEAR 2003 - 04 RELEVANT TO THIS ASSESSMENT YEAR. ON 17.03.2006, A SURVEY WAS CONDUCTED AT THE PREMISES OF LOVELY PUBLIC SENIOR SECONDARY SCHOOL. OUT OF VARIOUS DOCUMENTS FOUND AND IMPOUNDED IS A BUNCH OF DOCUMENTS MARKED ANNEXURE A - 7. AS PER PAGE - 8 OF THIS BUNCH, ONE SHRI AVTAR SINGH, SON OF SHRI BHIM SINGH OF VILLAGE VAJIRABAD, DISTT. - GURGAON, HARYANA HAS GIVEN A GIFT OF RS.9,00,000/ - TO THE ASSESSEE BY MEANS OF CHEQUES DATED 25.02.2004. HOWEVER, THE DOCUMENTS WHICH IS A PHOTOCOPY OF THE GIFT DEED SIGNED BY SHRI AVTAR SINGH DOES NOT CONTAIN THIS ADDRESS, PAN, WHETHER HE IS AN ASSESSEE OR NOT AND HIS RELATION WITH THE ASSESSEE. IN THE ABSENCE OF THESE PARTICULARS, THE GIFT IS NOT A GENUINE ONE AND IS AN ARRANGEMENT TO INTRODUCE UNACCOUNTED MONEY OF THE ASSESSEE. AS PER PAGES 1 - 5 OF ANNEXURE A - 6, SEIZED DURING THE ABOVE REFERRED SURVEY, THE ASSESSEE HAS SOLD FLAT NO.304, PLOT NO. - 6, ADITYA COMPLEX, PREET VIHAR, DELHI - 110092 FOR RS.9,00,000/ - . THIS SALE WAS COMPLETED ON 06.02.2004. HOWEVER THE ASSESSEE HAS NOT SH OWN THE INCOME FROM THIS SALE IN HER STATEMENT OF INCOME. AS SUCH THE CAPITAL GAIN ON THIS TRANSACTION HAS NOT BEEN PUT TO TAX. 3. CONSIDERING THE WRITTEN SUBMISSIONS FILED ON 18.12.2009 THE ASSESSMENT ORDER WAS PASSED ON 13.12.2009 U/S 143/147 MAKING AN ADDITION OF RS.9 LACS WHICH WAS CHALLENGED IN APPEAL BEFORE THE CIT(A). THE CIT(A) WHILE HOLDING THAT THE APPEAL OF THE ASSESSEE WAS NOT MAINT AINABLE , I N VIEW OF THE FACT THAT IT WAS LATE BY THREE DAYS HOWEVER P R O C E E D E D A L S O TO DISCUSS THE MERITS OF THE ADDITIONS MADE BY THE AO AND SUSTAINED THE SAME. 4. AGGRIEVED BY WHICH THE ASSESSEE I S IN APPEAL BEFORE THE TRIBUNAL WHEREIN THE ADJOURNMENT HAS BEEN M OVED BEFORE US. CONSIDERING THE SUBMISSIONS OF THE LD. SR. DR WHO RELIES UPON THE IMPUGNED ORDER W E ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES , THE IMPUGNED ORDER IS PERVERSE . IN CASE THE LD. CIT(A) WAS OF THE VIEW THAT THE APPEA L WAS LATE THAN AS PER THE REQUIREMENTS OF LAW , A SPECIFIC NOTICE FOR THE SAID SHORTCOMING SHOULD HAVE BEEN ISSUED REQUIRING T H E A S S E S S E E TO EXPLAIN THE DELAY . F ROM A PERUSAL OF THE FOLLOWING FINDING OF THE CIT(A) IT IS EVIDENT THAT NO SUCH E XERCISE WAS DONE: - ON PERUSAL OF RECORDS, IT IS OBSERVED THAT THE INSTANT APPEAL IS INSTITUTED ON 02/02/10 AND THE DATE OF SERVICE OF THE DEMAND NOTICE, AS RECORDED IN THE FORM NO. - 35 FILED BY THE APPELLANT IS 31/12/2009. AS SUCH THE APPEAL DOES NOT COMP LY WITH THE PARAMETERS OF TIME LIMIT OF FILING OF APPEAL AS PER SEC 249(2) OF I.T. ACT, 1961, AND IS LATE BY 3 DAYS. IT IS NOT MAINTAINABLE AS PER LAW. 3 I.T.A .NO. - 1282 /DEL/201 2 5. IN VIEW O F THE FACT THE IMPUGNED ORDER HAS NOT FOLLOWED THE PROCEDURAL REQUIREMENTS THE SAME IS S ET ASIDE BACK TO THE FILE TO THE CIT(A) TO DO THE NEEDFUL. SINCE THE ORDER I S H E L D T O B E PERVERSE THE FINDING OF FACT DOES NOT SURVIVE. THE CIT(A) SHALL FIRST DECIDE THE ISSUE OF LIMITATION AND THEREAFTER PASS A FRESH ORDER IN ACCORDANCE WITH LAW AFTER THE ASSESSEE GI VING A REASONABLE OPPORTUNITY OF BEING HEARD AND DECIDE EACH OF THE POINTS WHICH RISE FOR H I S DETERMINATION B Y W A Y O F THE GROUNDS RAISED BY THE ASSESSEE. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 9 T H OF JANUARY 2015 . S D / - S D / - ( B.C.MEENA ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 9 / 01 /201 5 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI