ACIT, New Delhi V. Sh. Praveen Kumar Kucheria, New Delhi

ITA 1633/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9844 (ITAT-DELHI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 04-08-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 21-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Keywords: Additional evidence
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : I : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 1633/DEL/2009 ASSESSMENT YEAR : 2005-06 ASSTT. COMMISSIONER OF INCOME- TAX, CIRCLE 35(1) NEW DELHI. VS. SHRI PRAVEEN KUMAR KUCHERIA, X-234, JAIN MANDIR, GALI NO.3, RAM NAGAR, GANDHI NAGAR, DELHI 110 031. PAN: ADTPK 7963 L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RANJAN CHOPRA, CA REVENUE BY : SMT. ANUSHA KHURANA, SR. DR O R D E R PER I.P. BANSAL, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER OF THE CIT (A) DATED 28 TH NOVEMBER, 2008 FOR ASSESSMENT YEAR 2005-06. GROUND S OF APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (A) HAS ERRED IN DELETING OF RS.18,14,500/- MAD E ON ACCOUNT OF UNEXPLAINED DEPOSITS U/S 68 OF THE IT A CT, 1961, ESPECIALLY WHEN AIR INFORMATION IS ON RECORD. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT (A) HAS ERRED IN ADMITTING ADDITIONAL EVIDENCE WITHOUT FOLLOWING THE REQUIREMENT OF RULE 46A (2) AND NOT S PECIFYING AS TO UNDER WHICH EXCEPTION (A TO D) OF RULE 46A (1 )THE ASSESSEES CASE IS COVERED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT (A) HAS FURTHER ERRED IN TERMS OF RULE 46A(3) B Y NOT ITA NO.1633/DEL/2009 2 SUPPLYING THE EVIDENCE PRODUCED BY THE ASSESSEE AND NOT ALLOWING A REASONABLE OPPORTUNITY TO THE A.O. TO EX AMINE THE SAME. 2. THE IMPUGNED ASSESSMENT IS AN ORDER DATED 13 TH DECEMBER, 2007 PASSED U/S 144 OF THE INCOME-TAX ACT, 1961. IT HAS BEEN S TATED IN THE ASSESSMENT ORDER THAT ACCORDING TO INDIVIDUAL TRANSACTION STATEMENT IT WAS REVEALED THAT ASSESSEE HAD BANK DEPOSITS AMOUNTING TO RS.18,14,500/- AS ON 31 ST MARCH, 2005. ACCORDINGLY, ASSESSEE WAS REQUIRED TO PREPARE A TRU E AND CORRECT RETURN FOR THE YEAR UNDER CONSIDERATION AND TO SUBMIT THE SAME ON OR BEFORE 30 TH OCTOBER, 2007. RETURN OF INCOME WAS NOT FILED AND NO REQUES T FOR POSTPONING OF THE HEARING WAS RECEIVED. IT IS IN THESE CIRCUMSTANCES , AS ASSESSMENT WAS GETTING TIME BARRED, THE ASSESSING OFFICER HAS TREATED THE SAID BANK DEPOSIT OF RS.18,14,500/- AS INCOME OF THE ASSESSEE BY WAY OF EX-PARTE ORDER. AGGRIEVED, THE ASSESSEE FILE AN APPEAL BEFORE THE LD. CIT (A), WHO, AFTER EXAMINING THE DOCUMENTS PRODUCED BEFORE HIM, HAS DELETED THE ADDI TION. 3. THE GRIEVANCE OF THE REVENUE IS THAT THE DOCUMEN TS, ON THE BASIS OF WHICH THE ADDITION HAS BEEN DELETED BY LD. CIT (A), WERE NEVER CONFRONTED TO ASSESSING OFFICER AND, THEREFORE, THERE IS A VIOLAT ION OF RULE 46A AND ADDITION HAS WRONGLY BEEN DELETED BY THE LD. CIT (A). 4. RELYING ON THE GROUNDS OF APPEAL IT WAS SUBMITTE D BY LD. DR THAT THE DOCUMENTS ON THE BASIS OF WHICH THE LD. CIT (A) HAS DELETED THE ADDITION WERE NEVER PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AND, THUS THE ASSESSING OFFICER HAD NO CHANCE TO GO THROUGH THOSE DOCUMENTS AND, THEREFORE, THE DELETION OF ADDITION IS AGAINST THE PROVISIONS OF RULE 46A OF IT RULES, 1962 AND THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER TO GIVE HIM THE OPPORTUNITY TO LOOK INTO THE DOCUMENTS ON THE B ASIS OF WHICH IT IS CLAIMED THAT NO ADDITION WAS LIABLE TO BE MADE AND ON THE BASIS OF WHICH THE LD. CIT (A) HAS DELETED THE ADDITION. ITA NO.1633/DEL/2009 3 5. ON THE OTHER HAND, IT WAS SUBMITTED BY LD. AR TH AT THE ADDITION HAS BEEN DELETED BY THE LD. CIT (A) BY CALLING THE RELEVANT DOCUMENTS FROM THE ASSESSEE. HOWEVER, HE DID NOT OBJECT TO THE SUBMISSION OF THE LD. DR THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER F OR DENOVO ASSESSMENT. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAS NOT APPEARED BEFORE THE ASSESSING OFFICER, THER EFORE, THERE IS NO QUESTION OF SUBMITTING ANY DOCUMENTS BEFORE THE ASSESSING OFFIC ER. LD. CIT (A) REFERRING TO NUMBER OF DOCUMENTS FILED BEFORE HIM HAS DELETED TH E ADDITION. THE LIST OF THESE DOCUMENTS CAN BE FOUND IN PARA 6.4 OF THE ORDER OF THE LD. CIT (A). IN THIS VIEW OF THE SITUATION, IT IS CLEAR THAT ON THE BASIS OF VARIOUS DOCUMENTS THE LD. CIT (A) HAS DELETED THE ADDITION. THESE DOCUMENTS WERE NEV ER CONFRONTED TO THE ASSESSING OFFICER AND NO REMAND REPORT WAS EVER CAL LED FOR BY THE LD. CIT (A). THUS, KEEPING IN VIEW THIS FACT, WE FIND THAT THE R EQUEST OF LD. DR IS LIABLE TO BE ACCEPTED THAT THE MATTER MAY BE RESTORED TO THE FIL E OF ASSESSING OFFICER FOR DENOVO ASSESSMENT. THEREFORE, WE RESTORE THIS ASSE SSMENT TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO FRAME DENOVO ASSESSMENT AFTER GRANTING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE T O PLACE ALL THE SUPPORTING DOCUMENTS ON RECORD ON THE BASIS OF WHICH IT HAS BE EN CLAIMED THAT NO INCOME WAS ASSESSABLE. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL FILED BY THE DEPARTMENT IS TREATED TO BE ALLOWED. . 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.08. 2009. [A.K. GARODIA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 21.08.2009. DK ITA NO.1633/DEL/2009 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES