Shri Bhagwan Gaur, New Delhi V. ITO, New Delhi

ITA 1450/DEL/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7102 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 23-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Assessee Lawyers: DHARMINDER KUMAR
• Keywords: Additional evidence; Ignorance of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI I.P. BANSAL, JUDICIAL MEMBER ITA NO.1450/DEL/2011 ASSESSMENT YEAR : 2006-07 BHAGWAN GAUR, VILL. & P.O. SHAHBAD, MOHAMMADPUR, BIJWASAN, NEW DELHI. PAN : AGUPG8586D VS. ITO, WARD 44 (1), NEW DELHI 44. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DHARMINDER KUMAR, CA REVENUE BY : MRS. ANUSHA KHURANA, SR. DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 31 ST DECEMBER, 2010 FOR ASSESSMENT YEAR 2006-07. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THAT THE ORDER OF THE LEARNED CIT (A) IN CONFIRMING THE ADDITIONS MADE BY THE ASSESSING OFFICER IS ARBITRARY, BIASED, BAD IN LAW ON FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LD. CIT (A) HAS GROSSLY ERRED IN NOT ADMITTIN G THE ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES DESPITE THE FACT THAT THE ASSESSEE WAS A CLASS IIIRD EM PLOYEE OF AIRPORTS AUTHORITY OF INDIA AND HAD NOT AVAILED THE S ERVICES OF A PROFESSIONAL COUNSEL DURING THE COURSE OF ASSESSME NT PROCEEDINGS AND WAS NOT AWARE OF THE INCOME TAX RULES. 3. THAT THE LEARNED CIT (A) HAS GROSSLY ERRED IN CONF IRMING THE COMPUTATION OF CAPITAL GAINS ON ESTIMATED BASIS MADE BY THE ASSESSING OFFICER OF RS.4,27,250/- AND DISMISSING S UMMARILY THE SUBMISSION OF THE ASSESSEE. ITA NO.1450/DEL/2011 2 4. THAT THE LEARNED CIT (A) HAS GROSSLY ERRED IN CONF IRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING AN ADDITION OF RS.5,23,000/- U/S 69 OF THE INCOME TAX ACT, 1961 WITHO UT PROPERLY APPRECIATING THE SUBMISSIONS MADE AND FACTS O N RECORD. (B) THAT THE APPELLANT CRAVES TO ADD, ALTER, DELETE OR AME ND THE ABOVE GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. THE ASSESSMENT IN THE PRESENT CASE HAS BEEN FRAMED U/S 143 (3) VIDE ORDER DATED 4 TH OCTOBER, 2008. THE ASSESSEE IS AN EMPLOYEE WITH AIRPORTS AUTHORITY OF INDIA AND ACCORDING TO AIR INF ORMATION RECEIVED BY THE ASSESSING OFFICER, THE ASSESSEE HAD DEPOSITED A SUM OF ` 13,23,000/- IN CASH IN HIS SAVINGS BANK ACCOUNT ON VARI OUS DATES THE DETAILS OF WHICH HAS BEEN GIVEN AT PAGE 1 OF THE ASSESSME NT ORDER. IT WAS FURTHER FOUND THAT OUT OF THE AFOREMENTIONED DEP OSIT A SUM OF ` 8 LAC PERTAINED TO SALE OF LAND. EXCLUDING THE SAID AM OUNT, THE ASSESSING OFFICER ADDED A SUM OF ` 5,23,000/- TO THE INCOME OF THE ASSESSEE AND ALSO HAS COMPUTED LONG-TERM CAPITAL GAIN OF ` 4,27,25 0/- ON THE SALE OF THE SAID LAND AND, IN THIS MANNER, THE INCOME OF THE ASSESSEE HAS BEEN ASSESSED AT ` 11,91,580/- IN PLACE OF THE RETURNED INCO ME OF ` 2,41,333/. BEFORE THE CIT (A) IT WAS THE CASE OF THE ASSESSEE THAT ADDITIONAL EVIDENCE FILED SHOULD BE ADMITTED AS THE A SSESSEE WAS NOT AWARE OF THE REQUIREMENTS OF LAW AS THE ASSESSING OFFICER DID NOT GIVE SUFFICIENT AND REASONABLE OPPORTUNITY TO THE ASSESSEE. T HE LONG-TERM CAPITAL GAIN COMPUTED BY THE ASSESSEE WAS ON ESTIMATE BASI S AND ADDITION OF ` 5,23,000/- WAS UNJUSTIFIED. HOWEVER, L EARNED CIT (A) OBSERVED THAT IGNORANCE OF LAW IS NEVER AN EXCUSE. TH E ASSESSING OFFICER HAD GIVEN THE ASSESSEE AN OPPORTUNITY TO EXPLAI N THE SOURCE OF CASH DEPOSIT AND THE ASSESSEE SHOULD HAVE GONE THROUGH HIS RECORDS AND FURNISHED EXPLANATION. EVEN IF THE ASSESSEE WAS NOT AWARE OF LEGAL PROVISIONS HE COULD AT LEAST HAVE BROUGHT THE NECESSARY FACTS TO THE NOTICE OF ASSESSING OFFICER AND IF REQUIRED HE COULD HA VE AVAILED THE SERVICES OF AUTHORIZED REPRESENTATIVE. THE ASSESSEES FAIL URE TO AVAIL ITA NO.1450/DEL/2011 3 SUCH OPPORTUNITY DOES NOT MEAN THAT ADEQUATE OPPORTUN ITY WAS NOT GIVEN. THEREFORE, LEARNED CIT (A) REFUSED TO ACCEPT THE ADDITIONAL EVIDENCES AND HAS CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFICER. 3. AFTER EXPLAINING THE FACTS, IT IS THE CASE OF THE L EARNED AR THAT THE MATTER SHOULD BE SENT BACK TO THE FILE OF ASSESSING O FFICER FOR DENOVO CONSIDERATION OF THE ISSUES RAISED BY THE ASSESSEE IN HIS APPEAL. 4. ON THE OTHER HAND, THE LEARNED DR CONTESTED THE R EQUEST OF THE LEARNED AR ON THE GROUND THAT THE ASSESSEE WAS PROVIDED WITH A REASONABLE OPPORTUNITY BY THE ASSESSING OFFICER AND, THU S, LEARNED CIT (A) WAS RIGHT IN NOT ACCEDING TO THE REQUEST OF THE A SSESSEE AS THE ASSESSEE COULD NOT MAKE OUT ANY CASE FOR ADMISSION OF ADDI TIONAL EVIDENCE. 5. WE HAVE HEARD BOTH THE PARTIES AND WE HAVE ALSO CA REFULLY GONE THROUGH THE ORDER OF THE ASSESSING OFFICER AND CIT (A). WE ARE OF THE OPINION THAT IF THE MATTER IS RESTORED BACK TO THE FI LE OF ASSESSING OFFICER, IT WILL SERVE THE INTEREST OF JUSTICE. THERE FORE, WE RESTORE THE PRESENT ASSESSMENT TO THE FILE OF ASSESSING OFFICER ON THE A DDITIONS WHICH HAVE BEEN CONTESTED BY THE ASSESSEE IN HIS APPEAL. THE ASSESSING OFFICER WILL RE-ADJUDICATE THESE ADDITIONS AFTE R PROVIDING THE ASSESSEE WITH A REASONABLE OPPORTUNITY OF HEARING AND TH E ASSESSING OFFICER WILL PERMIT THE ASSESSEE TO FILE THE EXPLANATIO NS/EVIDENCE TO SUBSTANTIATE THE CLAIM THAT NO ADDITION SHOULD BE MADE . AFTER CONSIDERING ALL THESE EVIDENCES AND EXPLANATION FILED BY THE ASSESSEE, THE ASSESSING OFFICER WILL RE-ADJUDICATE THESE ADDITIONS AS PER THE PROVISIONS OF LAW. WE DIRECT ACCORDINGLY. AS WE ARE RESTORING THESE ITA NO.1450/DEL/2011 4 ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDIC ATION AS PER LAW, WE DO NOT EXPRESS ANY OPINION ON THE MERITS OF THE ADD ITIONS. 6. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPEAL FI LED BY THE ASSESSEE IS ALLOWED IN THE MANNER AFORESAID. THE ORDER PRONOUNCED IN THE OPEN COURT ON 29.12.20 11. SD/- SD/- [G.D. AGRAWAL] [I.P. BANSAL] VICE PRESIDENT JUDICIAL MEMBER DATED, 29.12.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES