Suresh Chand, Delhi V. ITO, Ward-47(2), New Delhi

ITA 1445/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9873 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 21-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIVEK AGGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Condonation of delay; Set aside
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 1445/DEL/2019 ASSESSMENT YEAR: 2009-10 SH. SURESH CHAND, VS. INCOME TAX OFFICER, 191A, ASHISH MARKET WARD-47(2), NEW DELHI KATRA PERAN, TILAK BAZAR KHARI BAWLI, DELHI (PAN:AAFPC7351R) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. VIVEK AGGARWAL, ADVOCATE REVENUE BY : SH. PRADEEP SINGH GAUTAM, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 31.01.2018 PASSED BY THE LD. CIT(A)-16, NEW DELHI R ELATING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. THAT, LD. CIT(A) OUGHT TO HAVE QUASHED THE IMP UGNED REASSESSMENT ORDER PASSED BY LD. AO U/S 147 AS THE CONDITIONS LAID DOWN U/S 147 TO 151 WERE NOT COMPLIED WITH. 2. THAT, THE ASSESSMENT ORDER PASSED BY LD. AO IS ILLEGAL AS THE SAME WAS PASSED WITHOUT SERVING THE NOTICE U/S 143( 2) AS PER LAW. 3. THAT, ON THE FACTS AND IN LAW, LD. CIT(A) HAS ERRED IN NOT ADMITTING THE APPEAL OF ASSESSEE AND THAT TOO WITHO UT CONSIDERING THE FACTUAL POSITION OF THE ASSESSEE AND ERRED IN N OT CONDONING THE DELAY AS THE REASON FOR THE SAME HAS BEEN EXPLAINED IN THE PETITION FILED ALONG WITH FORM-35. 4.THAT, LD. CIT(A) ERRED ON BOTH IN LAW AND ON FACT S IN DISMISSING THE APPEAL AND THAT TOO WITHOUT PROVIDIN G ADEQUATE OPPORTUNITY OF BEING HEARD AND IN VIOLATION OF PRIN CIPLES OF NATURAL JUSTICE. 5. THAT, LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS.9,94, 670/- IN THE IMPUGNED ASSESSMENT ORDER AND THAT TOO IN HASTY MAN NER AND 2 WITHOUT APPLICATION OF MIND AND ON THE BASIS OF PRE -CONCEIVED NOTION. 6. THAT, LD. CIT (A) HAS ERRED IN AFFIRMING THE ORD ERS PASSED BY THE LD. AO, WHERE IN LD. A.O. HAS GIVEN CONTRADICTO RY FINDING ABOUT THE CASE, AT THE FIRST INSTANCE LD. A.O . ALLEGES T HAT THE APPELLANT IS INTO THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIE S, WHICH IN ITSELF EXPLAINS THAT THE CASH DEPOSITED IN THE BANK , WHIC H IS ADDED TO THE INCOME OF THE APPELLANT DOESN'T PERTAIN TO HIM RATH ER IT SHOULD BE PART OF INCOME OF THE TRANSFEROR AND NOT THE TRANSF EREE I.E. THE APPELLANT. ON THE OTHER HAND LD, CIT APPEALS HAS MA DE THE ADDITION IN THE INCOME OF THE APPELLANT TREATING IT AS INCOM E FROM UNDISCLOSED SOURCES. 7. THAT, LD. A.O. HAS ERRED IN FACTS AND LAW AS W ELL, IN CONFIRMING THE ORDERS OF THE LD AO. THAT TOO WHEN T HE ORDERS HAS BEEN PASSED WITHOUT REFERRING TO ANY SPECIFIC PROVI SION OF LAW/ SPECIFIC SECTION, WHICH HAS BEEN NOT ADHERED BY THE APPELLANT. 8. THAT, LD. CIT(A) HAS ERRED IN NOT PASSING THE ORDERS OF THE APPELLANT TILL DATE AS THE IMPUGNED ORDERS IN APPEA L , ARE PASSED AGAINST THE PERSON HOLDING PAN NUMBER AAHPG7391M IN STEAD OF THE APPELLANT HOLDING PAN NUMBER AAFPC7351R.THUS IT SEE MS, THAT ORDERS IN THE CASE OF APPELLANT ARE STILL LYING UNP ASSED WITH THE LD CIT APPEALS HIMSELF. 9. THAT, LD. CIT(A) HAS ERRED IN NOT PROVIDING ADEQ UATE OPPORTUNITY TO / SUBSTANTIATE AND SUBMIT EXISTING AND THE ADDITIONAL EVIDENCES, TO PROVE THE PROPER SOURCE OF CASH, DEPO SITED IN THE BANK DURING THE YEAR. 10. THAT, LD. CIT(A) HAS ERRED IN PASSING THE ORDE RS ASSESSEED INCOME OF RS. 85,880/- INSTEAD OF RS. 10, 80,680/-, WHICH SHOWS THAT THE ORDERS HAS BEEN PASSED IN THE BIASED MANNER WITH WRONG FIGURES MENTIONED THEREIN, OR THIS ORDER PERT AINS TO THE PERSON HAVING PAN NUMBER AAHPG7391M. 11. THAT, LD. CIT(A) HAS ERRED IN UPHOLDING THE ORD ERS OF THE LD AO, IN THE CIRCUMSTANCES WHEN LD AO HAS NOT BEEN ABLE TO PROVE, ANY OTHER CORROBORATIVE EVIDENCE ABOUT THE C ASH GENERATION OR ANY OTHER UNDISCLOSED SOURCE OF INCOME. 2. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT LEARNED FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF THE ASSESSEE ON ACCOUNT OF 17 DAYS DELAY. HE STATED THAT ASSESSE E HAS FILED AN APPLICATION FOR CONDONATION, BUT THE LEARNED FIRST APPELLATE AUTHORITY HAS NOT CONDONED THE DELAY. HE REQUESTED THAT 17 DAYS D ELAY MAY BE 3 CONDONED AND ISSUES IN DISPUTE MAY BE SET ASIDE TO THE LEARNED FIRST APPELLATE AUTHORITY TO DECIDE THE SAME FRESH, AS PE R LAW, AFTER GIVING THE OPPORTUNITY TO THE ASSESSEE. ON THE CONTRARY, LEARN ED DR HAS NOT RAISED ANY SERIOUS OBJECTION ON THE REQUEST OF THE LEARNED COUNSEL FOR THE ASSESSEE. 3. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORD ER AND I FIND THAT LEARNED FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF THE ASSESSEE ON ACCOUNT OF DELAY OF 17 DAYS AS WELL AS ON MERIT ALSO. LEARNED COUNSEL FOR THE ASSESSEE HAS FILED A SUBMISSION ON THE ISSU E OF CONDONATION OF DELAY WHICH I HAVE READ AND I AM OF CONSIDERED VIEW THAT IN THE INTEREST OF JUSTICE, 17 DAYS DELAY SHOULD BE CONDONED AND TH E ISSUES IN DISPUTE TO BE SET ASIDE TO THE LEARNED FIRST APPELLATE AUTHORI TY TO DECIDE THE SAME AFRESH AS PER LAW, AFTER GIVING OPPORTUNITY TO THE ASSESSEE. 4. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, I CONDONE THE DELAY OF 17 DAYS AND SET ASIDE THE ISSU ES IN DISPUTE TO THE LEARNED FIRST APPELLATE AUTHORITY TO DECIDE THE ISS UES AFRESH, AS PER LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 06/01/2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 06/01/2020 SH 4 COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES