Wahabuddin, Meerut V. ITO, Meerut

ITA 1642/DEL/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1861 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 29-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N MEENA
• Keywords: Additional evidence
• Section: 271(1)(c); 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI C BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND MS. SUCHITRA KAMBLE, JUDICIAL M EMBER ITA NOS. 1642/DEL/2016 [A.Y 2011-12] ITA NOS. 1643/DEL/2016 [A.Y 2011-12] SHRI WAHABUDDIN VS. THE INCOME-TAX OFFICER S/O SHRI MEHERBAN WARD 2 (4) 545, AMEER ROAD MEERUT BADHWALI GALI, MEERUT PAN: ABEPW 2480 P (APPLICANT) ( RESPONDENT) ASSESSEE BY : SHRI VINOD KU MAR GOEL, ADV DEPARTMENT BY : SHRI S.N. MEENA, SR. DR DATE OF HEARING : 04.12.2019 DATE OF PRONOUNCEMENT : 06.12.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THE ABOVE TWO SEPARATE APPEALS BY THE ASSESSEE ARE PREFERRED AGAINST TWO SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX [APPEALS] - MEERUT DATED 14.01.2016 AND 15.01.2016 PERTAINING TO 2 ASSESSMENT YEAR 2011-12. SINCE BOTH THESE APPEALS WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF BY THIS COMMO N ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT D URING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFI CER NOTICED SOME CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCES OF THE CASH DEPOSITS I N THE BANK ACCOUNT WITH ICICI BANK. AS NO ONE RESPONDED TO THE QUERIE S RAISED BY THE ASSESSING OFFICER, THE ASSESSING OFFICER FRAMED ASS ESSMENT ORDER U/S 144 OF THE ACT AND LEVIED PENALTY U/S 271(1)(C) OF THE ACT. 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) ON BOTH THE COUNTS I.E. ADDITION MADE AND PENALTY LEVIED, BUT C OULD NOT SUCCEED. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO. 1644/DEL/2016 AND POINTED OUT THAT THE CO-ORDINATE BENCH HAS RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFF ICER TO BE DECIDED AFRESH. 3 7. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE FI NDINGS OF THE ASSESSING OFFICER. 8. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE OR DERS OF THE AUTHORITIES BELOW. WE FIND FORCE IN THE CONTENTION S OF THE LD. COUNSEL FOR THE ASSESSEE. ON IDENTICAL SET OF FACTS AND ON IDENTICAL GROUNDS OF APPEAL, THE CO-ORDINATE BENCH IN ITA NO. 1644/DEL/2 016 VIDE ORDER DATED 26.07.2018 HAS HELD AS UNDER: 6. AFTER HEARING BOTH THE SIDES, I FIND DUE TO NON -APPEARANCE BY THE ASSESSEE, THE ASSESSING OFFICER COMPLETED TH E ASSESSMENT U/S 144/148 BY ESTIMATING THE INCOME OF THE ASSESSEE BEING THE CASH DEPOSITED IN THE BANK ACCOU NT MAINTAINED WITH ICICI BANK, SINCE THE ASSESSEE DID NOT EXPLAIN THE SOURCE OF SUCH DEPOSIT. I FIND THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE ON THE G ROUND THAT THERE WAS NO PROPER APPLICATION UNDER THE RULE 46 F OR ADMISSION OF THE ADDITIONAL EVIDENCES AND THE ASSES SEE COULD NOT EXPLAIN AS TO WHY THERE WAS NON-COMPLIANCE BEFO RE THE ASSESSING OFFICER DESPITE SEVERAL OPPORTUNITIES GRA NTED. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND CONSIDERING THE UNDERTAKING GIVEN BY THE LD. COUNSE L FOR THE ASSESSEE THAT GIVEN AN OPPORTUNITY THE ASSESSEE SHA LL APPEAR BEFORE THE ASSESSING OFFICER TO SUBSTANTIATE HIS CA SE TO THE 4 SATISFACTION OF THE ASSESSING OFFICER, THEREFORE, I N THE INTEREST OF JUSTICE I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HI S CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. THE GROUNDS R AISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICA L PURPOSES. 9. IN RESPECT OF PENALTY LEVIED U/S 271(1)(C) OF TH E ACT, THE CO- ORDINATE BENCH IN ITA NO. 868/DEL/2017 HAS HELD AS UNDER: AFTER CONSIDERING THE WRITTEN SYNOPSIS FILED ALONG WITH COPY OF THE ORDER OF THE TRIBUNAL IN ITA NO. 1644/DEL/20 16 AND AFTER HEARING THE LD. DR I FIND THE QUANTUM APPEAL HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR D ECIDING THE ISSUE AFRESH. SINCE, QUANTUM ADDITION HAS BEEN REST ORED TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, I DEE M IT PROPER TO RESTORE THE ISSUE RELATING TO LEVY OF FT PENALTY TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND DIRECT ACCO RDINGLY. THE APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALL OWED FOR STATISTICAL PURPOSE. 5 10. ON FINDING PARITY IN THE FACTS VIS A VIS THE GR IEVANCE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, RESPECTF ULLY FOLLOWING THE FINDINGS OF THE CO-ORDINATE BENCH, WE DIRECT ACCORD INGLY. 11. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN I TA NO. 1643 & 1642/DEL/2016 ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06.12 .2019. SD/- SD/- [ SUCHITRA KAMBLE ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 06 TH DECEMBER, 2019 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 6 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER