Anil Bansal, New Delhi V. ITO, New Delhi

ITA 1544/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65269 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-07-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 03-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: V K TULSIAN
• Keywords: Opportunity of being heard

Judgement Text

ITA NO. 1544/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 1544/DEL/2012 A.Y. : 2007-08 ANIL BANSAL, 208, 3 RD FLOOR, S-524, SHAKARPUR, VIKAS MARG, DELHI 110 092 (PAN: AAFPB2542K) VS. INCOME TAX OFFICER, WARD 37(1), NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : SH. V .K. TULSIAN, CA DEPARTMENT BY : DR. B.R.R. KUMAR, SR. D.R. ORDER ORDER ORDER ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXVIII, NE W DELHI DATED 01.2.2012 PERTAINING TO ASSESSMENT YEAR 2007-08. 2. THE GROUNDS RAISED READ AS UNDER:- I) WHETHER THE LD. COMMISSIONER OF INCOME TAX (A) WAS JUSTIFIED BY SUSTAINING THE ASSUMPTION OF JURISDICTION FOR INVOKING THE PROVISIONS OF SEC. 147/148 OF THE INCOME TAX ACT, 1961. ADMITTEDLY, THE PROCEEDINGS WERE BASED ON THE DEBATABLE EVIDENCE ALREADY ON RECORD. II) WHETHER THE LD. COMMISSIONER OF INCOME TAX (A) WAS JUSTIFIED BY NOT QUASHING THE ORDER WHEN THERE WAS NO DISPOSAL OFF OBJECTIONS BY ASSESSING OFFICER IN THE MANNER AS SUGGESTED IN THE CASE OF GKN DRIVESHAFT. ITA NO. 1544/DEL/2012 2 III) WHETHER THE LD. COMMISSIONER OF INCOME TAX (A) WAS JUSTIFIED EVEN ON MERITS THAT THE OUTSTANDING PROFESSIONAL CHARGES ` 93000/- AND RENT PAYABLE ` 108623/- WERE ADDED IN THE CURRENT YEARS INCOME, ALTHOUGH THESE ARE BROUGHT FORWARD EXCEPT ` 39000/- RENT PAYABLE FOR THE YEAR DIRECTLY CREDITED IN THE LANDLORD A/C, WITHOUT APPRECIATING THE EVIDENCE ON RECORD. THAT THE APPELLANT CRAVES LEAVE TO AMEND, AFTER OR TO RAISE ANY OTHER GROUND AT THE TIME OF HEARING. 3. IN THIS CASE PROCEEDINGS WERE INITIATED FOR ASS ESSMENT AND NOTICE U/S. 143(2) WAS ISSUED ON 15.9.2008. ASSESSEE CL AIMED THAT NOTICE U/S. 143(2) WAS NOT ISSUED WITHIN THE PERIOD SPECI FIED FOR SCRUTINY ASSESSMENT. HE OBSERVED THAT THERE WAS NO EVIDENCE FOR SERVICE OF NOTICE DATED 15.9.2008 HENCE THE PROCEEDINGS INITIA TED BY ISSUE OF NOTICE U/S. 143(2) DATED 15.9.2008 WERE DROPPED ON 18.12.2009. SUBSEQUENTLY, NOTICE U/S. 148 WAS ISSUED ON 29.12.2 009. DURING THE COURSE OF REASSESSMENT ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER THAT ASSESSEE WAS MAINTAINING BOOKS OF ACC OUNT ON THE BASIS OF HYBRID SYSTEM, I.E. THE RECEIPTS ON CASH BASIS AN D EXPENSES ON THE ACCRUAL BASIS. ASSESSING OFFICER NOTED THAT AS PE R THE BALANCE SHEET, FOLLOWING EXPENSES ARE SHOWN AS PAYABLE ON 31.3.200 7:- - PROFESSIONAL EXP. PAYABLE ` 93000 - RENT PAYABLE ` 108623 ` 2,01,623 ASSESSING OFFICER DISALLOWED THE EXPENSES AND MAD E ADDITION TO THE ASSESSEES INCOME. ITA NO. 1544/DEL/2012 3 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (A) NOTED THAT THE FACTS OF THE CASE AND THE ASSESSEES SUBMISSION ON BOTH THE ISSUE I.E. JURISDICTION AS WELL AS MERITS OF THE CASE, LD. COMMISSIONER OF INCOME TAX (A) PASSED A VERY NON-SPE AKING ORDER. HE HELD THAT HE AGREED WITH THE CONTENTION OF THE A SSESSING OFFICER AND SUSTAINED THE ACTION OF THE ASSESSING OFFICER FOR INVOKING THE PROVISIONS OF SECTION 147/148. LD. COMMISSIONER OF INCOME TAX (A) ALSO HELD THAT HE WAS OF THE OPINION THAT THE ACT ION OF THE ASSESSING OFFICER IS JUSTIFIED IN MAKING THE ADDITION OF ` 20 1623/-. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE ME. 6. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. I FIND THAT ASSESSEES CONTENTION IN THIS REGARD IS THAT R EOPENING HAS BEEN INITIATED ON THE BASIS OF DEBATABLE EVIDENCE. FUR THER, IT HAS BEEN CLAIMED THAT THERE WAS NO DISPOSAL OF OBJECTIONS BY THE ASSESSING OFFICER IN THE MANNER AS SUGGESTED BY THE HONBLE APEX COURT IN THE CASE OF GKN DRIVESHAFT. FURTHERMORE, ON MERITS OF THE CASE, IT HAS BEEN CONTENDED THAT OUTSTANDING PROFESSIONAL CHARGE S OF ` 93000/- AND RENT PAYABLE ` 108623/- WERE ADDED IN THE CURRENT Y EARS INCOME AND THESE ARE BROUGHT FORWARD EXCEPT FOR ` 39000/- RENT PAYABLE FOR THE YEAR CORRECTLY CREDITED IN THE LANDLORD ACCOUNT. ASSESSEES CONTENTION IS THAT THESE ADDITIONS HAVE BEEN MADE WITHOUT APPRECIATING THE EVIDENCE ON RECORD. 6.1 LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6.2 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. IN MY CONSIDERED OPINION AND ON THE FACT S AND CIRCUMSTANCES OF THE CASE, THE ISSUES IN THE APPEAL NEED TO BE ITA NO. 1544/DEL/2012 4 REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERING THE SAME, AFRESH IN VIEW OF THE SUBMISSIONS OF THE ASSESSEE N OW BEING MADE. THE ASSESSING OFFICER SHALL DISPOSE OFF THE ISSUE RAISED BY THE ASSESSEE IN TERMS OF HONBLE APEX COURT DECISION IN THE CASE OF GKN DRIVESHAFT. THE ASSESSING OFFICER SHALL ALSO EXAMIN E THE ASSESSEES CONTENTION THAT EXPENSES ADDED IN THE CURRENT ASSES SMENT YEAR WERE ACTUALLY BROUGHT FORWARD FROM PREVIOUS YEAR AND D ID NOT PERTAIN TO CURRENT ASSESSMENT YEAR. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09/8/2012. SD/- [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 09/8/2012 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