Rupinder Singh Khurana, Noida V. Addl. CIT, New Delhi

ITA 1526/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6629 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 27-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-1526/DEL/2016 (ASSESSMENT YEAR-2008-09) RUPINDER SINGH KHURANA, D-55, SEC-36, NOIDA-201301. PAN-AQKPS2767G ( APPELLANT) VS ADDL. CIT, RANGE-17, NEW DELHI. (RESPONDENT) ASSESSEE BY NONE REVENUE BY NONE DATE OF HEARING 27 .09.2016 DATE OF PRONOUNCEMENT 09 .11.2016 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 22.01.2016 OF CIT(A)-33, NEW DELHI PERTAINING TO 2008-09 AY ON THE FOLLOWING GROUNDS:- 1. ADDITION MADE BY CIT & ADDL. CIT IS WRONG AND B AD IN LAW. 2. THE ORDER PASSED BY AO IS ILLEGAL AS CIT(A) HAS NO POWER TO REMAND THE MATTER AND ANY ASSESSMENT MADE CONSEQUENT TO AN SUC H DIRECTION IS ILLEGAL AND NONEST. 2. AT THE TIME OF HEARING, AN ADJOURNMENT WAS MOVED BY THE LD.SR.DR WHO WAS STATED TO BE ON LEAVE AND BY THE LD.AR WHO PLEADED PRIOR COMMITMENTS. HOWEVER, CONSIDERING THE MATERIAL AVAILABLE ON RECORD, THE S AID REQUESTS WERE REJECTED. THE RECORD SHOWS THAT THE ASSESSEE IN THE YEAR UNDER CONSIDERA TION RETURNED AN INCOME OF RS.10,39,500/- CONSISTING OF SALARY INCOME FROM ANG ELZ TECHNOLOGIES PVT.LTD. AND RENTAL INCOME FROM PROPERTY AT E-549, GREATER KAILASH-1, N EW DELHI. THE CASE WAS SELECTED FOR SCRUTINY IN VIEW OF THE AIR INFORMATION WHICH DISCL OSED THAT CASH OF RS.10,70,000/- HAD BEEN DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE IN THE ICICI BANK LTD. 3. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SAME. NOT CONVINCED WITH THE EXPLANATION OFFERED, THE ADDITION OF THE SAID AMOUN T WAS MADE IN THE HANDS OF THE ASSESSEE BY THE AO. I.T .A .NO.-1526/DEL/2016 PAGE 2 OF 3 4. THE ISSUE TRAVELLED IN APPEAL BEFORE THE CIT(A). THE ASSESSEE FILED A PETITION BEFORE THE CIT(A) SEEKING ADMISSION OF FRESH EVIDEN CES UNDER RULE 46A. THE SAID REQUEST WAS CONSIDERED BY THE CIT(A) IN THE FOLLOWI NG MANNER:- 5. IN THE COURSE OF THESE PROCEEDINGS, THE AR HAS FILED A PETITION DATED 10.06.2011 UNDER RULE 46A. THE CONTENTS OF THE SAI D PETITION ARE AS UNDER:- IT IS RESPECTFULLY STATED THAT THE APPELLANT RECEI VED A COPY OF CONFIRMATION FROM THE COMPANY WHICH IT HAS BEEN STATED TO BE SEN T TO THE LD.DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-17(1), NEW DELHI IN RESPONSE TO THE NOTICE U/S 133(6) OF I.T.ACT, 1961. THE SAID COPY IS IN THE POSSESSION OF THE APPELLANT WHICH IS BEING FILED AN ADDITIONAL EV IDENCE BEFORE YOUR HONOUR. IT MAY PLEASE BE ACCEPTED UNDER RULE 46(1) (D) OF INCOME TAX RULES, 1961. 6. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE AR FILED IN THIS REGARD. 7. ACCORDING TO THE AR< THE APPELLANT HAS RECEIVED CASH OF RS.17,50,000 IN PURSUANCE OF BAYANA AGREEMENT EXECUTED BETWEEN THE APPELLANT AND M/S INTIQUA INDIA LIMITED ON 14.08.2007 IN RESPECT OF S ALE OF 1800 SQ FT SITUATED AT LGF, E-549, G.K PART-II, NEW DELHI. THE CONTENTION OF THE AR IS THAT RS.10,70,000 DEPOSITED IN THE BANK ACCOUNT IS OUT T HE ABOVE ADVANCE. SINCE THERE WAS NO PROPER EXPLANATION AND EVIDENCE, THE A O MADE THE ADDITION. 8. IN THE COURSE OF THESE PROCEEDINGS, THE AR HAS B ROUGHT ON RECORD THE CONFIRMATION LETTER AND THE P&L A/C AND BALANCE SHE ET AND ALSO BREAK UP OF ADVANCES OF RS.4,00,00,000 FIGURING IN THE BALANCE SHEET OF THE SAID COMPANY WHICH INCLUDED THE ADVANCE MADE TO THE APPELLANT. 9. THERE IS SOME FORCE IN THE ARGUMENTS OF THE AR. HOWEVER, THE DOCUMENTS MENTIONED ABOVE WERE NOT MADE AVAILABLE T O THE AO FOR EXAMINATION. IN VIEW OF THESE FACTS, THE AO IS HERE BY DIRECTED TO VERIFY THE DOCUMENTS AND IF HE IS SATISFIED WITH THE GENUINENE SS OF THE DOCUMENTS AND EXPLANATION, NO ADDITION IS CALLED FOR. THE ISS UE IS SET ASIDE FOR LIMITED VERIFICATION. (EMPHASIS PROVIDED) 5. CONSIDERING THE GRIEVANCE OF THE ASSESSEE AND ST ATUTORY REQUIREMENTS AS SET OUT IN SECTION 251(1)(A) OF THE INCOME TAX ACT, 1961 AN D REQUIREMENTS OF RULE 46A OF THE I.T.RULES 1963, IT IS SEEN THAT THE PROCEDURE FOLLO WED BY THE LD. COMMISSIONER (APPEALS) IS NOT IN-CONFORMITY WITH THE ACT AND THE RULES. T HE DECISION TO ADMIT FRESH EVIDENCE IS NOT IN QUESTION IN THE PRESENT PROCEEDINGS, IT IS T HE PROCEDURE FOLLOWED AFTER ADMITTING THE SAME WHICH IS QUESTIONED. THE STATUTE NO LONGER PE RMIT THE CIT(A) TO SET ASIDE THE ISSUE. AFTER THE AMENDMENT OF THE INCOME TAX ACT, 1961 BY THE FINANCE ACT, 2001 W.E.F. 01.06.2001 THE POWER TO SET ASIDE IS NO LONGER AVAI LABLE TO THE COMMISSIONER (APPEALS). THE STATUTE IN UNAMBIGUOUS TERMS ENCOMPASSES THE PO WERS OF THE COMMISSIONER (APPEALS) UNDER CLAUSE (A) OF SUB-SECTION (1) OF SE CTION 251 TO CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. THUS EVEN IF FRESH EVIDENCE IS ADMITTED THE ISSUE I.T .A .NO.-1526/DEL/2016 PAGE 3 OF 3 CAN NOT BE SET ASIDE BY THE COMMISSIONER (APPEALS) TO THE AO AS THEN FOLLOWING THE PROCEDURE SET OUT IN RULE 46A, THE COMMISSIONER (AP PEALS) IS REQUIRED TO CONFRONT THE SAME TO THE AO AND OBTAIN A REMAND REPORT THEREON. IN THE FACTS OF THE PRESENT CASE, THE PROCEDURE PRESCRIBED UNDER SUB-RULE (3) OF RULE 46A IS REQUIRED TO BE FOLLOWED. IT IS ONLY AFTER OBTAINING A REMAND REPORT AND CONFRONTIN G THE SAME TO THE ASSESSEE THAT THE COMMISSIONER (APPEALS) CAN BE SAID TO HAVE PASSED A SPEAKING ORDER IN ACCORDANCE WITH LAW. ACCORDINGLY, IN VIEW OF THIS PATENT AND O BVIOUS PROCEDURAL AND STATUTORY SHORTCOMINGS, THE IMPUGNED ORDER IS SET ASIDE AND T HE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A). THE FRESH EVIDENCES PLACED ON RECORD B Y THE ASSESSEE TAKEN ON RECORD BY THE SAID AUTHORITY SHALL NOW BE REQUIRED TO BE CONF RONTED TO THE AO AND ONLY AFTER OBTAINING A REMAND REPORT AND HEARING THE ASSESSEE THEREON, THE CIT(A) SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. THE SAID OR DER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 TH OF NOVEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT A SSISTANT REGISTRAR ITAT NEW DELHI