Radhey Shyam Dixit, New Delhi V. ACIT, New Delhi

ITA 1452/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91441 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 02-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 28-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Keywords: Business income; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F , NEW DELHI) BEFORE SHRI J. S. REDDY, ACCOUNTANT MEMBER AND SHRI C. M. GARG, JUDICIAL MEMBER I.T.A. NO.1452 /DEL/2012 ASSESSMENT YEAR : 2008-09 RADHEY SHYAM DIXIT, VS. ACIT, CIRCLE 39(1), K-68, KIRTI NAGAR, NEW DELHI NEW DELHI-110 015 GIR / PAN:AAKPD7321H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KAPIL GOEL, ADV. RESPONDENT BY : SHRI VIKRAM SAHAY, SR. DR DATE OF HEARING : 02.07.2015 DATE OF PRONOUNCEMENT : 24.07.2015 ORDER PER J. S. REDDY, AM: THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(A) XXVIII, NEW DELHI DATED 17.02.2012 FOR THE ASSESSME NT YEAR 2008-09. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL EARNING INCOME UNDER THE HEAD BUSINESS INCOME, CAPITAL GAIN AND OTHER SOURCES. HE FILED RETURN OF INCOME ON 27.02.2009 DECLARING TOTAL INCOME OF RS.26,46,230/-. THE A.O. COMPLETED ASSESSMENT U/S 143(3) ON 31.12.2010 ASSESSING THE TOTAL INCOME AT RS.49,04,430/- INTER ALIA, MAKING ADDITION ON ACCOUNT OF UNSECURED LOAN TO THE TUNE OF RS.5,32,00 0/-, SHORT TERM CAPITAL GAIN TO THE TUNE OF RS.12,16,200/- AND RS.5,10,0-00 /- ON ACCOUNT OF DIFFERENCE IN SHORT TERM CAPITAL GAIN ON PROPERTIES SOLD AT DEHRADUN. THOUGH ITA NO.1452/DEL/2012 2 THE ASSESSEE ORDER WAS PASSED U/S 143(3), THE ADDIT IONS WERE MADE AS THE ASSESSEE HAD NOT FURNISHED THE DETAILS SOUGHT BY TH E A.O. ON APPEAL, THE FIRST APPELLATE AUTHORITY PASSED AN EX-PARTE ORDER. AGGRIEVED THE ASSESSEE IS BEFORE US ON THE FOLLOWING GROUNDS:- THE LD. CIT(A) WITHOUT GIVING PROPER OPPORTUNITY O F BEING HEAD, IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ACTION OF LD. A.O. MAKING AGGREGATE ADDITION OF RS.22,58,200/- TO THE RETURNED INCOME OF THE ASSESS EE. 3. WE HAVE HEARD MR. KAPIL GOEL, ADVOCATE, LD. COUN SEL FOR THE ASSESSEE AND SHRI VIKRAM SAHAY, CIT DR, ON BEHALF O F REVENUE. 4. THE FIRST APPELLATE AUTHORITY PASSED EX- PARTE O RDER ON THE GROUND THAT THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICES ISSU ED. BEFORE US, THE ASSESSEE SUBMITTED THAT THE NOTICES WERE RECEIVED B Y THE ASSESSEE. BE IT AS IT MAY, THE A.O. AT PARA 4.2 OF ASSESSMENT ORDER OBSER VED AS UNDER: BUT NO SALE DEED FOR PROPERTY NO.1, PROPERTY NO.2 AND PROPERTY NO.4 WAS FILED. ASSESSEE WAS ASKED TO THE SALE DEEDS AN D PURCHASE DEEDS OF ALL PROPERTY SOLD DURING THE YEAR THROUGH ORDER SHE ET ENTRY 23.11.2010, 6.12.2010 & 13.12.2010. AFTER THE HEAR ING WAS HELD ON 21.12.2010, 29.12.2010 & 30.12.2010. BUT THESE DOC UMENTS WERE NOT PROVIDED. IN ABSENCE OF THE DOCUMENTS , AN AMOUNT EQUALING TO ONE FIFTH OF SALE PRICE FOR PROPERTY 1, 2 & 4 IS BEING ADDED TO THE INCOME OF THE ASSESSEE. TOTAL SALE PRICE OF THESE PROPERTIES IS RS.60,81,000/- ONE FIFTH IS RS.12,16,200/-. THEREFORE THIS AMOUNT OF RS.12,16,2000/- IS BEING ADDED TO TOTAL INCOME FROM SHORT TERM CAPI TAL GAIN. PENALTY PROCEEDINGS U/S 271(1)(C) HAS BEEN INITIATED SEPARA TELY FOR CONCEALING THE PARTICULARS OF INCOME. 5. A PERUSAL OF THE SAME DEMONSTRATES THAT MODUS AD OPTED BY THE A.O. I.E. ADOPTING AN AMOUNT EQUIVALENT TO 1/5 TH OF SALE PRICE OF PROPERTY AT GURGAON, SHIPRA FLAT AND PLOTS AT DEHRADUN AND SAHI BABAD FOR MAKING ADDITION TO THE INCOME O THE ASSESSEE, IS NOT SUPPO RTED BY ANY PROVISION OF ITA NO.1452/DEL/2012 3 LAW. ASSESSEE, BEFORE US, DEMONSTRATED THAT HE WAS PREVENTED FROM SUFFICIENT CAUSE FROM APPEARING BEFORE THE AUTHORIT IES BELOW. UNDER THESE CIRCUMSTANCES, WE DEEM IT APPROPRIATE TO RESTORE TH E MATTER TO THE FILE OF FIRST APPELLATE AUTHORITY FOR FRESH ADJUDICATION IN ACCOR DANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. THE ASSESSEE SHALL APPEAR BEFORE LD. CIT(A) ON 07.11.2015 AND TA KE NOTICE OF THE MATTER AND COOPERATE IN DISPOSAL OF APPEAL. 6. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JULY 2015. SD./- SD./- ( C. M. GARG) (J. S. REDDY ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 24 TH JULY, 2015 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). ITA NO.1452/DEL/2012 4 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 22/7 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 22/7 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 24/7/15 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 24/7 SR. PS/PS 7 FILE SENT TO BENCH CLERK 24/7 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER