Kulvinder Singh , New Delhi V. ITO, Ward- 41(2), New Delhi

ITA 137/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1117 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 09-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJIV K GAWRI
• Keywords: Set aside
• Section: 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC-1 BENCH, NEW DELHI [THROUGH VIDEO CONFERENCE] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND MS. SUCHITRA KAMBLE, JUDICIAL M EMBER ITA NO. 137/DEL/2019 [ASSESSMENT YEAR: 2005-06] SHRI KULVINDER SINGH VS. THE INCOME TAX OFFI CER C 123, EKTA ENCLAVE WARD 41 (2) NEAR PEERAGARHI CHOWK NEW DELHI NEW DELHI PAN: AWSPS 9338 R [APPELLANT] [RESPONDENT] DATE OF HEARING : 02.06.2020 DATE OF PRONOUNCEMENT : .06.2020 ASSESSEE BY : SHRI RAJIV K GAWRI , ADV REVENUE BY : SHRI R.K. GUPTA, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE CIT(A)-24, NEW DELHI DATED 12.06.2014 PERTAINING TO ASSESSMENT YEAR 2005-06. 2 2. THE GRIEVANCE OF THE ASSESSEE IS TWO-FOLD- FIRST LY, THE ASSESSEE HAS CHALLENGED THE REOPENING OF THE ASSESSMENT U/S 147 OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] STATING THAT THE ISSUE OF NOTICE U/S 148 IS BAD IN LAW AND SECONDLY, THE ASSESSEE IS AGGRIEVED BY THE ADDITIONS CONFIRMED BY THE LD. CIT(A). 3. AT THE VERY OUTSET, WE HAVE TO POINT OUT THAT TH IS IS THE SECOND ROUND OF LITIGATION. IN THE FIRST ROUND, THE QUARR EL TRAVELLED UPTO THE TRIBUNAL AND THE TRIBUNAL IN ITA NO. 4164/DEL/2014 SET ASIDE THE ISSUE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION THAT THE LD. CIT(A) SHOULD FIRST DECIDE THE JURISDICTIONAL ISSUE RAISED BEFORE HIM. 4. PURSUANT TO THE DIRECTION OF THE TRIBUNAL, THE L D. CIT(A) DISPOSED THE APPEAL CHALLENGING THE REOPENING OF THE ASSESSM ENT AND THE VALIDITY OF NOTICE U/S 148 OF THE ACT BY DISMISSING THE APPEAL OF THE ASSESSEE ON THIS GROUND. HOWEVER, ON MERITS OF THE ADDITION, THE LD. CIT(A) RESTRICTED THE ADDITION OF RS. 23 LAKHS MADE BY THE ASSESSING OFFICER TO RS. 6 LAKHS. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE REIT ERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES AND IN THE FIRST ROUND OF LITIGATION. 3 6. FACTS ARE THAT, AS PER THE AIR INFORMATION RECEI VED FROM THE INV WING IN THE FORM OF TEP, IT CAME TO THE KNOWLEDGE O F THE ASSESSING OFFICER THAT THE ASSESSEE HAS INITIATED RECOVERY PR OCEEDINGS OF AN ADVANCE OF RS. 23 LAKHS GIVEN TO ONE SHRI JAI DEEP. ON THE BASIS OF SUCH INFORMATION, THE ASSESSING OFFICER PROCEEDED T O EXAMINE THE SOURCE OF RS. 23 LAKHS WHICH WAS ADVANCED TO SHRI J AI DEEP. 7. THE ASSESSEE EXPLAINED THAT RS. 23 LAKHS WAS GIV EN BY THE ASSESSEE OUT OF SALE PROCEEDS OF AGRICULTURAL LAND SOLD BY THE ASSESSEE. THIS EXPLANATION OF THE ASSESSEE DID NOT FIND ANY F AVOUR WITH THE LOWER AUTHORITIES THOUGH THE LD. CIT(A) ACCEPTED PARTLY T HE EXPLANATION THAT THE LOAN WAS GIVEN OUT OF SALE CONSIDERATION AND RE STRICTED THE DISALLOWANCE OF ADDITION TO RS. 6 LAKHS. 8. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VEHE MENTLY STATED THAT THE LOAN WAS GIVEN ON 08.03.2004 WHICH IS RELE VANT TO A.Y 2004-05 AND THEREFORE, NO ADDITION COULD BE MADE IN THE IMP UGNED A.Y. THOUGH, THIS CLAIM OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT(A) FOR WANT OF EVIDENCE. 4 9. BEFORE US ALSO, THE ASSESSEE COULD NOT FURNISH A NY EVIDENCE THAT THE LOAN WAS GIVEN IN F.Y. 2003-04. IN OUR CONSIDE RED OPINION, THIS VERY STATEMENT BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE LOAN WAS GIVEN IN F.Y. 2003-04 GOES TO THE ROOT OF THE MATTE R AND WITHOUT EXAMINING THE SAME, THE QUARREL CANNOT BE DECIDED. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE DEEM IT FIT T O RESTORE THE ENTIRE ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE AS SESSEE IS DIRECTED TO DEMONSTRATE THAT THE LOAN WAS ACTUALLY GIVEN IN F.Y . 2003-04 AND THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE SAME A ND IF THE CONTENTION OF THE ASSESSEE IS FOUND TO BE CORRECT, NO ADDITION BE MADE IN THE IMPUGNED A.Y I.E. 2005-06. 10. ALL OTHER RELATED ISSUES REMAIN OPEN FOR BOTH T HE SIDES WHICH WILL BE SUBJECT TO THE DETERMINATION OF CORRECT A.Y. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO. 137/DEL/2019 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03.06 .2020. SD/- SD/- [SUCHITRA KAMBLE ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 03 RD JUNE, 2020. 5 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT, NEW DELHI 5. DR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER