Sh. Subhash Chand Arora, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 1641/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3366 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 28-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 29-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJEEV MITTAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.1641/DEL/2016 ASSESSMENT YEAR : 2011-12 SUBHASH CHAND ARORA, 155/4, ANSARI ROAD, MUZAFFARNAGAR. VS. ITO, WARD- 1(2), MUZAFFARNAGAR. PAN : ABNPA5895M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SANJEEV MITTAL, ADV. DEPARTMENT BY : MS. YAMINI, SR.DR DATE OF HEARING : 20-11-2017 DATE OF PRONOUNCEMENT : 20-11-2017 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 16.12.2015 OF CIT(A), MUZAFFARNAGAR RELATING TO ASS ESSMENT YEAR 2011-12. 2. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNA L FOR NON-PROSECUTION. SUBSEQUENTLY, THE TRIBUNAL VIDE MA NO.424/DEL/2016 ORDER DATED 11.08.2017 RECALLED ITS EARLIER ORDER. THEREFORE, THIS IS A R ECALLED MATTER. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 19.03.2013 SHOWING TAXABLE INCOME OF RS.2,12,820/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER OBSERVED THAT THE ASSESSEE HAS PURCHASED AGRICULTURAL LAND J OINTLY WITH SHRI ANKUR, SON OF SHRI RAJENDRA PRASAD AND SHRI MUKESH KUMAR, SON OF SHRI GHANSHYAM IN 2 ITA NO.1641/DEL/2016 VILLAGE LOHARI (DISTT. UDHAMNAGAR) FOR TOTAL CONSID ERATION OF RS.52,53,000/- ON 23.09.2010 AND OF RS.52,36,000/- ON 29.01.2011. TH E ASSESSEE HAD INVESTED AN AMOUNT OF RS.37,27,334/- BEING 1/3 RD HOLDING/OWNERSHIP INCLUDING EXPENSES OF REGISTRATION ETC. ON BEING CONFRONTED BY THE ASSES SING OFFICER, IT WAS STATED BY THE ASSESSEE THAT HE HAS INVESTED AN AMOUNT OF RS.1 8,66,667/- ON THE LAND PURCHASED ON 23.09.2010 AND AN AMOUNT OF RS.18,60,6 67/- ON 29.01.2011. THE TOTAL INVESTMENT THUS COMES TO RS.37,27,334/-. AN AMOUNT OF RS.8,00,000/- WAS TAKEN AS LOAN FROM WIFE AND AMOUNT OF RS.4,00,000/- WAS TAKEN AS LOAN FROM RITIK CHABRA AND THE BALANCE OF AMOUNT OF RS.29,27, 334/- WAS INVESTED OUT OF ADVANCE RECEIVED FROM ONE SHRI DULAL RELATING TO PR OPOSED DEAL FOR SALE OF LAND. FROM THE COPY OF AGREEMENT AS FILED, THE ASSESSING OFFICER NOTED THAT THE AGREEMENT WAS NOT SIGNED BY ANY WITNESS AND THERE W AS NO CLAUSE OF RIGHT TO GET THE REGISTRATION THROUGH COURT IN CASE, REGISTRATIO N IS NOT EFFECTED FOR ANY SHORT COMING OF THE ASSESSEE. HE, THEREFORE, ASKED THE A SSESSEE TO PRODUCE SAID DULAL FOR HIS EXAMINATION AND ASCERTAIN THE AVAILABILITY OF CASH AS PER TERMS IN THE SAID AGREEMENT. SINCE THE ASSESSEE DID NOT PRODUCE SHRI DULAL, THE ASSESSING OFFICER DISBELIEVED THE AVAILABILITY OF HUGE FUNDS IN THE H ANDS OF THE ASSESSEE. AFTER ALLOWING AN AMOUNT OF RS.9,00,000/- WHICH WAS RECEI VED BY THE ASSESSEE ON ACCOUNT OF SALE DEED DATED 14.12.2010, THE ASSESSIN G OFFICER MADE ADDITION OF RS.20,20,000/- TO THE TOTAL INCOME OF THE ASSESSEE. 3 ITA NO.1641/DEL/2016 4. IN APPEAL, THE LD. CIT(A) UPHELD THE ADDITION MA DE BY THE ASSESSING OFFICER. 5. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES AND MATERIAL AVAILABLE ON RECORD. I FIND THE ADDITION OF RS.20, 20,000/- WAS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF NON-PRODUCTION OF S HRI DULAL BEFORE HIM TO SUBSTANTIATE WITH EVIDENCE TO HIS SATISFACTION REGA RDING THE AVAILABILITY OF SUCH HUGE FUNDS WITH THE SAID PERSON. SINCE NOTHING WAS STATED BEFORE THE LD. CIT(A), HE UPHELD THE ADDITION SO MADE BY THE ASSES SING OFFICER. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT GIVEN AN OPPORTUNITY, HE WILL PRODUCE SHRI DULAL BEFORE THE ASSESSING OFFICER FOR HIS EXAMINATION AND SUBSTANTIATE WITH EVIDENCE TO HIS SATISFACTION REGA RDING THE AVAILABILITY OF SUCH HUGE FUNDS WITH HIM. CONSIDERING THE TOTALITY OF T HE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE TH E ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE AN OPPOR TUNITY TO THE ASSESSEE TO PRODUCE SHRI DULAL BEFORE HIM FOR HIS EXAMINATION. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING D UE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND DIRECT ACCORDINGLY. T HE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PU RPOSES. 4 ITA NO.1641/DEL/2016 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON THIS 20 TH DAY OF NOVEMBER, 2017. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 20-11-2017. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI