Shri Rajendra Kumar Khanna, Moradabad V. ITO, Bijnor

ITA 1325/DEL/2014

• Counselvise Citation: 132520114 RSA 2014
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 09-07-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHIM SINGH
• Assessee Lawyers: PI YUSH KAUSHIK ADVT
• Keywords: Gift; Opportunity of being heard; Difference of opinion; Onus to prove; Change of opinion
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC -I, NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 1325/DEL./2014 : ASSTT. YEAR : 2002-03 RAJENDRA KUMAR KHANNA C/O., MUKESH MEHROTRA, M. MEHROTRA & CO., 1 ST FLOOR, BAIJNATH TEMPLE, BARTAN BAZAR MORADABAD VS ITO WARD - II BIJNOR (APPELLANT) (RESPONDENT) PAN NO. ABKPK7125P APPELLANT BY : SH. PI YUSH KAUSHIK, ADVT. RESPONDENT BY : SH. BHIM SI NGH, SR. DR DATE OF HEARING : 9.07.2015 DATE OF PRONOUNCEMENT : 14.07.2015 ORDER PER N.K. SAINI, A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 08.08.2013 OF THE LD. CIT(A)-, BAREILLY. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPE AL :- 1. THAT ON THE FACTS & CIRCUMSTANCES OF T HE CASE & IN LAW THE ASSESSMENT ORDER DT. 10.11.2008 PASSED B Y THE A.O U/S 147 / 143 OF THE IT ACT, 1961 IS BAD IN LAW SINCE IT IS BASED ON A MERE CHANGE OF OPINION AND NOT ON THE BASIS OF ANY FRESH MATERIAL/EVIDENCE. ITA NO.1325/DEL/2014 2 2. THAT THE LD. AO HAS GROSSLY ERRED ON FACT & IN LAW BY MAKING THE ADDITION OF RS. 5 LAC U/S 68 OF THE IT A CT, 1961 ON THE ALLEGED GROUND THAT THE GIFT ARE BOGUS AS TH E ASSESSEE HAD DISCHARGED ITS PRIMARY ONUS OF GIVING THE NECESSARY EXPLANATION IN RESPECT OF GIFT RECEIVED. 2A- THAT LD. AO FAILED TO APPRECIATE THAT THE GIF T WERE RECEIVED BY THE APPELLANT IN F.Y. 2001-02 & ADDRESS ES IN THEIR AFFIDAVIT WERE GIVEN CORRECTLY OF THESE DAYS. 2B- THAT LD. AO FAILED TO APPRECIATE THE FACT THAT HIS ITI REPORTED THAT SHRI GAJANAND GOEL & SHRI ASHOK KUMAR (DONORS) WERE CARRYING THEIR BUSINESS LONG BACK AT ADDRESSES GIVEN IN AFFIDAVITS WHICH CONFIRMS THE ID ENTITY OF DONORS. 2C- THAT THE LD. AO HAS ADMITTED IN HIS ORDER TH AT THE DDS WERE ISSUED FROM THE BANK A/COF THE DONOR IN FAVOUR OF APPLICANT AND THUS GIFTS WERE GENUINE. 2D- THAT THE LD. AO FAILED TO APPRECIATE THAT AP PLICANT DISCHARGED HIS ONUS TO PROVE THE IDENTITY / CAPACIT Y OF THE DONORS. 3- THAT THE LD. AO ISSUED THE NOTICE U/S 148 OF TH E IT ACT, 1961 ON THE BASIS OF INFORMATION RECEIVED FROM DIRE CTOR OF INVESTIGATION, DELHI AND SUCH NOTICE IS BAD IN LAW & UNJUSTIFIED. 4- THAT THE LD. AO FAILED TO DECIDE THE ISSUE REGA RDING LEGALITY OF NOTICE U/S 148 CHALLENGED BY THE APPLIC ANT. 5- THAT THE ADDITION OF RS. 5,00,000/- U/S 68 IN THE HANDS OF THE ASSESSEE IS BAD IN LAW, SINCE ANY ADDITION O N ACCOUNT OF UNEXPLAINED MONEY CAN BE MADE ONLY IN THE HANDS OF DONOR WHO HAD GIFTED THE MONEY TO ASSESSEE. 6- THE ORDER OF LD. AO IS ERRONEOUS AND DESERVED TO BE ANNULLED. 7- THAT THE OTHER GROUND OF APPEAL CAN BE TAKEN A T THE TIME OF HEARING. ITA NO.1325/DEL/2014 3 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASS ESSEE FILED THE RETURN OF INCOME ON 31. 03.2003 DECLARING AN INCOME OF RS. 78 000/-. LATER ON THE AO ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS THE ACT), IN RESPON SE TO THE SAID NOTICE THE ASSESSEE STATED THAT THE RETURN OF INCOME ALREA DY FILED ON 31.03.2003 MAY BE TREATED AS RETURN FILED IN RESPON SE TO THE NOTICE U/S 148 OF THE ACT. THE AO FRAMED THE ASSESSMENT U/S 14 7 READ WITH SECTION 143(3) OF THE ACT AT A TOTAL INCOME OF RS. 5,78,000/- BY MAKING AN ADDITION OF RS. 5,00,000/- ON ACCOUNT OF GIFT, CONSIDERING THE SAME AS ACCOMMODATION ENTRY. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MAT TER TO THE LD. CIT(A) WHO CONFIRMED THE ADDITION BY OBSERVING AS UNDER :- IN THIS CASE SEVERAL NOTICES SENT FRO M THIS OFFICE HAVE COME BACK UN-SERVED. IN VIEW OF THIS IT HAS TO BE PRESUMED THAT THE APPELLANT IS NO LONGER INTERESTED IN PURSUING THIS MATTER. THIS APPEAL IS ACCORDINGLY DISMISSED. NOW THE ASSESSEE IS IN APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T THE LD. CIT(A) WITHOUT CONSIDERING THE SUBMISSIONS AND WITHOUT SER VING THE NOTICE OF HEARING DISMISSED THE APPEAL OF THE ASSESSEE EX PARTE. HE REQUESTED TO RESTORE THE CASE TO THE LD. CIT(A) TO BE DECIDED ON MERIT AFTER GIVING AN OPPORTUNITY OF BEIGN HEARD TO THE ASSESSE E. IN HIS RIVAL SUBMISSIONS, THE LD. DR OBJECTED FOR RESTORING THE APPEAL TO THE LD. CIT(A) AND SUPPORTED THE ORDER PASSED BY THE AUTHOR ITIES BELOW. ITA NO.1325/DEL/2014 4 6. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESEN T CASE IT IS NOTICED THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASS ESSEE EX PARTE, IN LIMINE, BY SIMPLY STATING THAT SEVERAL NOTICE SEN T FROM HIS OFFICE HAD COME BACK UN SERVED. SO, IT IS CLEAR THAT THE NOTI CE OF HEARING WAS NOT SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM, AUDI ALTERAM P ERTAM. IN THE PRESENT CASE, APPEAL OF THE ASSESSEE WAS DECIDE D BY THE LD. CIT(A), EX-PARTE, WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD. I THEREFORE, RESTORE THIS CASE BACK TO THE FILE OF TH E LD. CIT(A) TO BE DECIDED AFRESH, IN ACCORDANCE WITH LAW AFTER PROVID ING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. IN THE RESULT APPEAL OF THE ASSESSEE ALLOWED FOR S TATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 14/07/2015). SD/- (N. K. SAINI) ACCOUNT ANT MEMBER DATED: 14 / 07/2015 *B.RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.1325/DEL/2014 5 DATE INITIAL 1. DRAFT DICTATED ON 8.07.2015 2. DRAFT PLACED BEFORE AUTHOR 8.07.2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.