Kamal Sharma, Delhi V. ITO, New Delhi

ITA 1441/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6760 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 22-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 10-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRAYAN GOTRU
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH D NEW DELHI BEFORE : SHRI I.C. SUDHIR, JUDICIAL MEMBER & SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 1441/DEL./2014 ASSTT. YEAR : 20 09 - 10 KAMAL SHARMA, VS. INCOME - TAX OFFICER, C/O KAPIL GOEL ADV., WARD 23(3), NEW DELHI. A - 1/25, SECTOR - 15, ROHINI, DELHI. [PAN: AVAPS 1384A] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEV RAJ SHARMA, ADV. RESPONDENT BY : SHRI SHRAYAN GOTRU, SR. DR DATE OF HEARING : 22.02.2016 DATE OF PRONOUNCEMENT : 26 .02.2016 ORDER PER L.P. SAHU, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE ARISES OUT OF ORDER OF LD. CIT(A) - XXIII, NEW DELHI DATED 30.12.2013 FOR THE ASSESSMENT YEAR 2009 - 10, CHALLENGING THE PENALTY OF RS.47,780/ - IMPOSED BY ASSESSING OFFICER AND CONFIRMED BY CIT(A) U/S. 271B OF THE IT ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING INCOME OF RS.5,94,511/ - ON 25.02.2010 INCLUSIVE OF AGRICULTURAL ITA NO. 1441/DEL./2014 2 INCOME OF RS.1,09,800/ - . SUBSEQUENTLY, IN THE SCRUTINY PROCEEDINGS UNDER CASS, THE AO FOUND THAT THE ASSESSEE HAD DEPOSITED A SUM OF RS.15 LACS IN THE BANK ACCOUNT MAINTAINED WITH HDFC BANK. SEVERAL NOTICES WERE SENT TO THE ASSESSEE AS WELL AS CONCERNED BA NK TO FURNISH EXPLANATION/DETAILS OF BANK ACCOUNT, AS NOTED BY AUTHORITIES BELOW IN THEIR ORDERS, BUT THE ASSESSEE DID NOT COMPLY WITH ANY OF THE NOTICE S /SUMMON S NOR THE BANK FURNISHED THE DETAILS OF THE BANK ACCOUNT. THE AO THEREFORE, MADE ADDITION OF RS. 15 LACS TO THE INCOME OF ASSESSEE. 2.1. THE AO FURTHER NOTICED THAT THE ASSESSEE HAD DEPOSITS TO THE TUNE OF RS.76,99,907/ - IN S/B ACCOUNT WITH DENA BANK WHICH ALSO STOOD UNEXPLAINED BEFORE THE AO. THE AO, THEREFORE, ADDED A SUM OF RS.30 LACS TO THE INC OME OF ASSESSEE AFTER DRAWING THE PEAK OF THE SE DEPOSITS. FURTHER ADDITION OF RS.1,09,800/ - WAS MADE BY THE AO FOR WANT OF ANY EVIDENCE TO SUBSTANTIATE THE AGRICULTURAL INCOME CLAIMED BY THE ASSESSEE. THE ASSESSMENT ORDER WAS PASSED U/S. 144 OF THE ACT AND THE APPEAL AGAINST THE ASSESSMENT ORDER IS STATED TO BE PENDING WITH THE LD. CIT(A). 3. THE AO AFTER HAVING CONSIDERED THE TOTAL UNEXPLAINED DEPOSITS OF RS.91,56,137/ - , OBSERVED THAT THE ASSESSEE HAD RECEIPTS IN EXCESS TO THAT ITA NO. 1441/DEL./2014 3 REQUIRED FOR GETTING THE AC COUNTS AUDITED U/S 44AB OF THE ACT AND SINCE THE ASSESSEE HAS FAILED TO FURNISH AUDIT REPORT IN COMPLIANCE TO SEC. 44AB, THE AO IMPOSED PENALTY U/S. 271B OF RS.45,780/ - REPRESENTING HALF PER CENT OF THE TOTAL TURNOVER OF RS.91,56,137/ - . IN THE PENALTY PROC EEDINGS THE ASSESSEE FURNISHED REPLY THAT THE APPEAL AGAINST THE ASSESSMENT ORDER IS PENDING BEFORE THE CIT(A) AND THE PENALTY PROCEEDINGS BE KEPT IN ABEYANCE TILL THE DISPOSAL OF APPEAL. HOWEVER, THE AO DID NOT CONSIDER THE EXPLANATION OF ASSESSEE AS PRO PER AND IMPOSED PENALTY. THE APPEAL FILED AGAINST THE PENALTY ORDER ALSO STOOD DISMISSED EXPARTE, AS THE ASSESSEE REMAINED NON - COOPERATIVE BEFORE THE FIRST APPELLATE AUTHORITY ALSO. IT IS THIS ORDER OF LD. CIT(A) WHICH THE ASSESSEE HAS CHALLENGED BEFORE TH E TRIBUNAL BY MEANS OF THIS APPEAL. 4. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE NEEDS ONE MORE OPPORTUNITY OF BEING HEARD BEFORE THE LD. CIT(A) ALONG WITH ITS APPEAL AGAINST THE ASSESSMENT ORDER PENDING WITH THE LD. CIT(A). HE UNDERTAKES TO RENDER FULL COOPERATION WITH THE FIRST APPELLATE AUTHORITY. THE LD. COUNSEL FURTHER CONTENDED THAT THE APPELLANT IS NOT LIABLE TO FURNISH THE AUDIT REPORT AS HE HAS SHOWN GROSS RECEIPTS OF RS. 9,87,500/ - AND THE ARBITRARY ADDITIONS MADE BY AO ARE NOT SUSTAINABLE. HE, THEREFORE, URGED FOR ACCEPTANCE OF HIS CONTENTIONS. ITA NO. 1441/DEL./2014 4 5. ON THE OTHER HAND, THE LD. DR CONTENDED THAT MORE THAN SUFFICIENT OPPORTUNITIES HAVE BEEN AFFORDED TO THE ASSESSEE BEFORE BOT H THE AUTHORITIES BELOW, BUT HE UTTERLY FAILED TO EXPLAIN THE OBJECTIONS OF THE AO. THEREFORE, THE CONTENTIONS OF THE ASSESSEE ARE NOT LIABLE TO BE ACCEPTED. 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE O PINION THAT THE ASSESSEE SHOULD HAVE BEEN GIVEN ONE MORE OPPORTUNITY TO EXPLAIN ITS CASE BEFORE THE LD. CIT(A). IT IS NOTABLE THAT NEITHER THE ASSESSEE EXPLAINED THE DEPOSITS IN ASSESSMENT PROCEEDINGS, NOR THE ASSESSING OFFICER COULD BE ABLE TO GET THE DET AILS OF BANK ACCOUNTS FROM THE CONCERNED BANKS AS IS EMERGED OUT FROM THE ORDERS OF THE AUTHORITIES BELOW. IN PRESENCE OF THESE FACTS, NO CONCLUSIVE FINDINGS CAN BE ARRIVED ON THE TOTAL TURNOVER OF ASSESSEE FOR IMPOSITION OF PENALTY U/S. 271B OF THE ACT. T HEREFORE, IT IS EXPEDIENT IN THE INTEREST OF JUSTICE THAT THE MATTER SHOULD GO BACK TO THE FILE OF LD. CIT(A) FOR DECIDING THE APPEAL AFRESH ALONG WITH APPEAL AGAINST ASSESSMENT ORDER STATED TO BE PENDING WITH HIM , BY WAY OF SPEAKING ORDER IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO FULLY COOPERATE WITH THE FIRST APPELLATE AUTHORITY IN HEARING OF APPEAL, AS UNDERTOOK BY THE LD. COUNSEL, AND HE SHALL NOT SEEK UNNECESSARY ADJOURNMENTS IN THE MATTER , FAILING WH ICH THE LD. ITA NO. 1441/DEL./2014 5 CIT(A) SHALL BE AT LIBERTY TO TAKE APPROPRIATE ACTION IN ACCORDANCE WITH LAW. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26.02.2016 . SD/ - SD/ - ( I.C. SUDHIR ) (L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26.02.2016 *AKS/ - COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT. REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI