Mrs. Priti Josh, New Delhi V. ITO, New Delhi

ITA 1466/DEL/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69631 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 06-11-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 05-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEEK KUMAR
• Assessee Lawyers: ANOOP SHARMA SH MANU K GIRI S
• Keywords: Opportunity of being heard
• Section: 143(3); 142(1)

Judgement Text

ITA NO. 1466/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 1466/DEL/2010 A.Y. : 200 5 - 0 6 MRS. PRITI JOSH, C/O MR. J.K. MONGA, CA G-8, PARPAT BHAWAN, 5, BSZ MARG, NEW DELHI - 110002 (PAN: ACFPJ9591E) VS. INCOME TAX OFFICER, WARD 8(1), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. ANOOP SHARMA, SH. MANU K. GIRI, ADVOCATES DEPARTMENT BY : SH. VIVEEK KUMAR, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS-XI), N EW DELHI DATED 17.2.2010 PERTAINING TO ASSESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED READ AS UNDER:- (I) THE APPELLATE ORDER IN THE FIRST APPEAL PASS ED BY THE LD. CIT(A) IS PRIMA FACIE AGAINST THE ESTABLIS HED NORMS OF TAX JURISPRUDENCE; SO FAR IT IS HIGHLY PREJUDICIAL TO ASSESSEE. (II) THE LD. CIT(A) HAS BEEN PLEASED NOT TO CONS IDER THE SUBMISSIONS MADE DURING THE COURSE OF APPELLATE PROCEEDINGS. ITA NO. 1466/DEL/2010 2 (III) WITH DUE RESPECT ASSESSEE SUBMITS THAT THE FI NDING RECORDED IN PARA 2.5 OF THE APPELLATE ORDER OF THE FIRST APPEAL ARE NOT CORRECT. (IV) THE ASSESSEE HAD SUBMITTED COMPLETE AND CORREC T DETAILS BEFORE THE LD. AO AND THE LD. CIT(A). THE LD. CIT(A) FAILED TO CONSIDER THIS IMPORTANT ASPECT OF THE CASE. (V) AT THE ADVICE OF LD. CIT(A) THE ASSESSEE HAD HE RSELF OFFERED THE AMOUNT OF RS. 51,548.00 WHICH OUGHT TO HAVE BEEN ADDED IN THIS CASE. (VI) THE LD. CIT(A) HAD CALLED FOR DETAILS OF STATE MENT OF WITHDRAWALS BY THE ASSESSEE AND HER HUSBAND AND DETAILS OF EXPENSES ON EDUCATION AND UTILITIES WHIC H WERE DULY SUBMITTED AND VERIFIED BY THE LD. CIT(A) . THE ITAT MAY BE PLEASED TO MODIFY THE ORDER OF LD . CIT(A) AND RESTRICT THE ADDITION TO RS. 51548/- AS SUBMITTED IN ITEM NO. 15 OF THE STATEMENT OF FACTS. 3. IN THIS CASE PROCEEDINGS U/S. 147 WERE INITIATED ON THE BASIS OF INFORMATION THAT THE ASSESSEE HAS INVESTED A SUM O F RS. 4 LACS IN THE MUTUAL FUNDS OF KOTAK MAHINDRA ON 24.2.2005 FOR 40,000/- UNITS. THIS WAS NOT MENTIONED IN THE BALANCE SHEET OF T HE ASSESSEE AS ON 31.3.2005 FILED DURING THE COURSE OF ASSESSMENT PRO CEEDINGS U/S. 143(3) OF THE I.T. ACT. THE TOTAL OF THE BALANCE S HEET WAS SHOWN AT 3,77,154/-. FURTHERMORE, IN THE COURSE OF ORIGINA L PROCEEDINGS ASSESSEE HAD CATEGORICALLY DENIED HAVING ANY OTHER BANK ACCOUNT. IN RESPONSE TO NOTICE U/S. 142(1) DATED 14.10.2008, ASSESSEE HAD SUBMITTED A BANK ACCOUNT OF THE ASSESSEE HERSELF MAINTAINED WITH THE STANDARD CHARTERED BANK, GREATER KAILASH BRANC H, NEW DELHI. ITA NO. 1466/DEL/2010 3 LD. AO ON THE PERUSAL OF THE OPENING BALANCE IN THE CAPITAL ACCOUNT FOUND THAT THERE WAS DIFFERENCE OF RS. 5,23,417/- I N THE CAPITAL ACCOUNT IN TWO SEPARATE STATEMENT OF AFFAIRS FURNIS HED. THE LD. AO ADDED THE SAME TO THE INCOME OF THE ASSESSEE AS INC OME FROM THE UNDISCLOSED SOURCES. 4. LD. CIT(A) AFFIRMED THE ACTION OF THE LD. AO. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT IN THIS CASE IN THE REASSESSMENT PROCEEDI NGS ASSESSEE HAS ADMITTED THAT SHE WAS HAVING ANOTHER BANK ACCOUNT. IN THIS SITUATION, THE ENTRIES IN THE SAME BANK STATEMENT H AVE TO BE EXAMINED AS TO WHETHER THE SOURCES OF DEPOSIT WERE PROPERLY EXPLAINED OR NOT. WE FIND THAT THIS EXAMINATION HAS NOT BEEN DONE BY THE AUTHORITIES BELOW. IN OUR CONSIDERED OPINION , THIS EXAMINATION IS VERY ESSENTIAL IN ORDER TO ATTRIBUTE ANY AMOUNT AS UNDISCLOSED INCOME OF THE ASSESSEE. IN THIS REGARD, LD. COUNSE L OF THE ASSESSEE SUBMITTED THAT THE MATTER MAY BE REMITTED TO THE FI LE OF THE LD. AO. HE PLEADED THAT HE WILL BE ABLE TO GIVE THE SOURCE OF DEPOSITS MADE IN THIS BANK ACCOUNT OF THE ASSESSEE WITH STANDARD CHARTERED BANK. LD. DEPARTMENTAL REPRESENTATIVE DID NOT HAVE ANY S PECIFIC OBJECTION TO THIS PROPOSITION. HENCE, WE REMIT THIS ISSUE TO THE FILE OF THE LD. AO. THE LD. AO SHALL EXAMINE THE ISSUE AFR ESH. THE LD. AO IS DIRECTED TO EXAMINE THE VERACITY OF THE SOURCES OF DEPOSITS IN THIS ITA NO. 1466/DEL/2010 4 CASE. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVE ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22/11/2013. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 22/11/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 1466/DEL/2010 5