Sh. Arun Aggarwal, New Delhi V. ITO, New Delhi

ITA 1421/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6911 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 10-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Keywords: Unexplained expenditure; Opportunity of being heard; Peak credit; Additional evidence
• Section: 69C

Judgement Text

ITA NO. 1421/DEL/2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 1421/DEL/2014 A.Y. : 2008-09 SHRI ARUN AGGARWAL, PROP. VICTOR ENTERPRISES, 129, KAMLA MARKET, NEW DELHI 110 0002 (PAN:: AAEPA7658L) VS. INCOME TAX OFFICER, WARD 31(3), NEW DELHI (APPELLANT ) (RESPONDENT ) ASSESSEE BY : SH. RAJ ESH JAIN, CA DEPARTMENT BY : SH. K.K. JAISWAL, DR DATE OF HEARING: 20-01-2016 DATE OF ORDER : 05-02-2016 ORDER PER H.S. SIDHU, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIX, NEW DELHI DATED 29.11.2013 PERTAINING TO ASSESSMENT YEAR 2008-09 ON THE FOLLOW ING GROUNDS:- 1. THAT THE LD. CIT(A) ERRED IN DISMISSING ALL TH E GROUND OF APPEAL RAISED BY THE APPELLANT WITHOUT APPRECIATING THE A PPELLATE SUBMISSIONS JUDICIALLY. THE LD. CIT(A) DID NOT CO NSIDER THE DOCUMENTS FILED DURING THE APPELLATE PROCEEDINGS, BEING ADDITIONAL EVIDENCE IN TERMS OF RULE 46A ON TECHNIC AL GROUND THAT THE APPELLANT HAS NOT MADE ANY REQUEST FOR ADMISSIO N OF ADDITIONAL ITA NO. 1421/DEL/2014 2 EVIDENCE IN ACCORDANCE WITH RULE 46A. THE APPELLAT E ORDER PASSED BY THE LD. CIT(A) IS TOTALLY ARBITRARY AND H AS NO BASIS. 2. WITHOUT PREJUDICE TO THE ABOVE 2.1 THE LD. CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 13,83,674/- MADE BY THE AO ON ACCOUNT OF ALLEGED UNEXPLAINED DE POSITS IN THE BANK ACCOUNT WITHOUT CONSIDERING THE FACTS AND SUBM ISSION OF THE APPELLANT FILED DURING THE APPELLATE PROCEEDINGS. 2.1A. THAT THE LOWER AUTHORITIES, OTHERWISE ALSO E RRED IN MAKING ADDITION OF ENTIRE AMOUNT OF RS. 13,83,674/-, DEPOS ITED IN THE SAVING BANK ACCOUNT, WITHOUT APPRECIATING THAT THE RE ARE CASH WITHDRAWAL ALSO WHICH BEEN HAVE RE-DEPOSITED IN TH E BANK ACCOUNT AND HENCE THE ADDITION SHOULD HAVE BEEN RES TRICTED TO PEAK CREDIT IN THE BANK ACCOUNT. 2.2 THE LD. CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 2,83,713/- MADE BY THE AO, ON ACCOUNT OF ALLEGED UNEXPLAINED C HEQUE DEPOSITS IN THE BANK ACCOUNT WITHOUT CONSIDERING TH E FACTS AND SUBMISSION OF THE APPELLANT FILED DURING THE APPELL ATE PROCEEDINGS. 2.3 THE LD. CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 1,77,274/- U/S. 69C OF THE ACT MADE BY THE AO, ON ACCOUNT OF A LLEGED UNEXPLAINED EXPENDITURE WITHOUT CONSIDERING THE FAC TS AND SUBMISSION OF THE APPELLANT FILED DURING THE APPEL LATE PROCEEDINGS. OUT OF TOTAL EXPENDITURE OF RS. 1,77,274/-, THE APP ELLANT CLAIMED EXPENDITURE OF RS. 71,040/- ON ACCOUNT OF TOUR EXPE NSES IN THE PROFIT AND LOSS ACCOUNT. 2.4 THAT THE ORDERS OF THE AO & CIT(A) ARE NOT BAS ED ON THE FACTS OF THE CASE AND AS PER LAW AND HENCE ADDITIONS SUSTAIN ED BY THE CIT(A) ARE TOTALLY ILLEGAL AND CONTRARY TO BINDING JUDICIAL PRECEDENTS. ITA NO. 1421/DEL/2014 3 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIE S ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT BEING REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESS EE REQUESTED FOR ANOTHER OPPORTUNITY OF BEING HEARD TO FILE THE PROPER APPLI CATION UNDER RULE 46A OF THE ITAT RULES, 1963. LD. DR HAS NOT RAISED ANY SERIOU S OBJECTION ON THE REQUEST OF THE LD. COUNSEL OF THE ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE VI EW THAT THE LD. CIT(A) HAS REJECTED THE APPLICATION UNDER RULE 46A BY HOLDING AS UNDER VIDE PARA NO. 3.4 AT PAGE NO. 6 TO 7 OF THE IMPUGNED ORDER:- 3.4 THE APPELLANT HAS ALSO FILED A COPY OF CERTAIN DOCUMENTS ALONG WITH HIS SUBMISSIONS BUT THERE IS NO INDEX AND PAGE NUMB ERING AND NO CERTIFICATE REGARDING WHETHER THESE DOCUMENTS WERE FILED DURING ASSESSMENT PROCEEDINGS. IN THE ASSESSMENT ORDER, TH E A.O. HAS STATED THAT THE REQUIRED DETAILS WERE NOT FURNISHED EVEN AFTER REPEATED OPPORTUNITIES. IT THEREFORE, APPEARS THAT THE COPY OF DOCUMENTS FI LED WITH THE SUBMISSIONS ARE ADDITIONAL EVIDENCE. THE APPELLANT HAS NOT MADE ANY REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE IN TERMS OF RULE 46A. IN VIEW OF HIS CLAIM DISCUSSED ABOVE THAT SUFFICIENT OPPORTUNITY WAS NOT GIVEN DURING ASSESSMENT PROCEEDINGS, IT APPEARS THAT THE APPELLA NT HAS FILED ADDITIONAL EVIDENCE ON. THE GROUND THAT SUFFICIENT OPPORTUNITY WAS NOT PROVIDED DURING ASSESSMENT PROCEEDINGS. IN SUCH A SITUATION, IT IS NECESSARY TO MAKE A REQUEST FOR ADMISSIONS OF ADDITIONAL EVIDENC E UNDER RULE 46A, SPECIFY THE ADDITIONAL EVIDENCE SOUGHT TO BE FILED, AND GIVE REASONS IN TERMS OF RULE 46A FOR ADMISSION OF ADDITIONAL EVIDE NCE. THE APPELLANT HAS FAILED TO DO SO. HE HAS TAKEN SEVERAL ADJOURNMENTS AND FILED THESE SUBMISSIONS ON THE FINAL HEARING WITHOUT FOLLOWING THE PRESCRIBED PROCEDURE. FURTHER, FOR THE REASONS DISCUSSED ABOV E, IT IS CLEAR THAT ITA NO. 1421/DEL/2014 4 SUFFICIENT OPPORTUNITY WAS GIVEN DURING ASSESSMENT PROCEEDINGS, AND THE APPELLANTS CLAIM THAT SUFFICIENT OPPORTUNITY WAS NOT GIVEN, IS NOT JUSTIFIED. WHEN THE APPELLANT HAS CHOSEN NOT TO AVAIL THE REPE ATED OPPORTUNITIES GIVEN BY THE AO, HE CANNOT SEEK TO TAKE ADVANTAGE OF HIS OWN FAILURE BY FILING ADDITIONAL EVIDENCE DURING APPELLATE PROCEED INGS. IN VIEW OF THESE FACTS, THE ADDITIONAL EVIDENCE IS NOT ADMITTED AS N ONE OF THE REQUIREMENTS LAID DOWN IN RULE 46A ARE FULFILLED IN THIS CASE. 4.1 AFTER GOING THROUGH THE AFORESAID FINDING OF TH E LD. CIT(A), WE ARE OF THE VIEW THAT LD. CIT(A) HAS REJECTED THE APPLICATION OF THE ASSESSEE UNDER RULE 46A MERELY ON TECHNICAL GROUNDS. IN THE INTEREST O F JUSTICE, WE ARE OF THE VIEW THAT OPPORTUNITY OF HEARING IN THE MATTER FOR FILI NG THE APPLICATION UNDER RULE 46A SHOULD BE GIVEN TO THE ASSESSEE, AS REQUESTED BY THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE. LD. AUTHORISED RE PRESENTATIVE OF THE ASSESSEE, SH. RAJESH JAIN, CA UNDERTAKES TO APPEAR BEFORE TH E LD. CIT(A) AND READY TO FILE THE PROPER APPLICATION UNDER RULE 46A AND SHAL L COOPERATE IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), IF THE ISSUE IS SET ASIDE TO THE LD. CIT(A). KEEPING IN VIEW OF THE STATEMENT MADE BY SH. RAJE SH JAIN, CA/AUTHORISED REPRESENTATIVE OF THE ASSESSEE, WE SET ASIDE THE I SSUE IN DISPUTE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SA ME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. THE ASSESSEE THROUGH SH. RAJESH JAIN, CA/AUTHORISED REPRESENTATI VE OF THE ASSESSEE IS DIRECTED TO FILE THE PROPER APPLICATION UNDER RULE 46A BEFORE THE LD. CIT(A), WHO WILL DECIDE THE SAME, AS PER RULES. THE ASSESSE E IS ALSO DIRECTED THROUGH SH. RAJESH JAIN, CA/AUTHORISED REPRESENTATIVE OF TH E ASSESSEE TO APPEAR BEFORE THE LD. CIT(A) ON 20.02.2016 AT 10.00 AM TO REPRESENT THE CASE. THERE IS NO NEED TO ISSUE NOTICE TO THE ASSESSEE BECAUSE THE DIRECTIONS FOR APPEARANCE BEFORE THE LD. CIT(A) WERE ISSUED IN TH E OPEN COURT AND THE SAME WERE NOTED DOWN BY SHRI RAJESH JAIN, CA/AUTHORISED REPRESENTATIVE OF THE ASSESSEE. ITA NO. 1421/DEL/2014 5 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/2/2016. SD/- SD/- [J.S. REDDY] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 05-02-2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR