Wahabuddin, Meerut V. ITO, Meerut

ITA 1644/DEL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6928 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 26-09-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 29-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Additional evidence
• Section: 147; 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.1644/DEL/2016 ASSESSMENT YEAR : 2012-13 WAHABUDDIN, C/O. VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT. VS. ITO, WARD- 2(4), MEERUT. PAN : ABEPW2480P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINOD KUMAR GOEL, ADV. DEPARTMENT BY : SHRI S. L. ANURAGI, SR. DR DATE OF HEARING : 17-07-2018 DATE OF PRONOUNCEMENT : 26-07-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 14.01.2016 OF CIT(A), MEERUT RELATING TO ASSESSMENT YEAR 2012-13. 2. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNA L FOR NON-APPEARANCE. SUBSEQUENTLY, THE TRIBUNAL VIDE ORDER DATED 20.04.2 018 IN M.A. NO.467/DEL/2016 RECALLED ITS EARLIER ORDER. HENCE THIS IS A RECALLED MATTER. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT ON THE BAS IS OF AIR INFORMATION THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.29,35,800/- D URING FINANCIAL YEAR 2011-12, THE CASE OF THE ASSESSEE WAS REOPENED BY ISSUE OF N OTICE U/S 148 OF THE I.T. ACT, 1961. SINCE THERE WAS NON-COMPLIANCE TO THE STATUT ORY NOTICES ISSUED, THE 2 ITA NO.1644/DEL/2016 ASSESSING OFFICER IN THE ORDER PASSED U/S 144/148 D ETERMINED THE INCOME OF THE ASSESSEE AT RS.33,95,800/- ON THE GROUND THAT THE A SSESSEE HAS DEPOSITED CASH AMOUNTING TO RS.33,95,800/- IN HIS ICICI BANK BEARI NG ACCOUNT NO.036801510233 AND NO DOCUMENTARY EVIDENCE WAS PRO DUCED TO EXPLAIN THE SOURCE OF SUCH DEPOSITS. 4. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE FAILED TO ESTABLISH TH E CIRCUMSTANCES WHICH PREVENTED HIM TO APPEAR BEFORE THE ASSESSING OFFICE R WHILE AMPLE OPPORTUNITIES WERE GIVEN TO HIM. ACCORDING TO HIM, IT IS A CASE WHERE THE ASSESSEE WOULD HAVE EVADED PAYING TAX HAD THE DEPARTMENT NOT DETEC TED THE BANK ACCOUNT. FURTHER, IN ABSENCE OF ANY APPLICATION MOVED UNDER RULE 46A OF THE I.T. RULES, 1962 THE VARIOUS ADDITIONAL EVIDENCES FILED BEFORE HIM WERE REJECTED BY THE LD. CIT(A). HE ACCORDINGLY DISMISSED THE APPEAL FILED BY THE ASSESSEE WITHOUT GOING INTO THE MERIT OF THE CASE. 5. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S :- 1. THAT LD. CIT(A) IS IN ERRED IN LAW REJECTED TH E APPLICATION U/S 154 IN WHICH, REQUEST WAS MADE TO CORRECT FACT WHICH WAS APPARENT ON THE FACE OF THE RECORD. 2. THAT NO NOTICE U/S 148 R.W.S. 147 WAS RECEIVED B Y THE ASSESSEE. THE A.O. HAS STATED THAT THE ASSESSEE REFUSE TO TAKE NOTICE ON 2 1.08.2014 IS INCORRECT BECAUSE THE ASSESSEE MOVED MADHIAI PAITH TO PURCHASE ANIMALS AN D CAME BACK IN THE LATE EVENING. THE OTHER FAMILY MEMBERS OF THE ASSESSEE ARE ILLITE RATE AND NOT AUTHORIZED TO TAKE ANY 3 ITA NO.1644/DEL/2016 NOTICE, THEREFORE, ASSESSMENT MADE BY THE A.O. IS A RBITRARY, UNJUST AND NOT ACCORDING TO LAW AND CIT(A) ERRED IN LAW CONFIRMED THE SAME I NCORRECT FACT. 3. THAT A.O. AS WELL CIT(A) IS IN ERROR THAT BANK E NTRIES ARE NOT BOOKS OF ACCOUNT OF THE ASSESSEE, THEREFORE, ADDITION OF RS.33,95,80 0/- IS BAD IN LAW. BECAUSE THIS AMOUNT RELATES TO SALE AND PURCHASE OF ANIMALS. HE NCE, A.O. IS IN ERROR MAKING ENTRIES CASH DEPOSIT ONLY IGNORED WITHDRAWAL AS UND ISCLOSED INCOME. THE CIT(A) HAS NOT JUSTIFIED TO CONFIRM THE SAME. 4. THAT THE ASSESSEE HAS RIGHT TO ADD, DELETE OR MO DIFY ANY GROUNDS DURING THE APPEAL PROCEEDING. 6. AFTER HEARING BOTH THE SIDES, I FIND DUE TO NON- APPEARANCE BY THE ASSESSEE, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 144/148 BY ESTIMATING THE INCOME OF THE ASSESSEE BEING THE CASH DEPOSITED IN THE BANK ACCOUNT 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 GROUND THAT THERE WAS NO PROPER APPLICATION UNDER THE RULE 46 FOR ADMISSION OF THE ADDITIONAL EVIDENCES AND THE ASSESSEE COULD NOT EXP LAIN AS TO WHY THERE WAS NON-COMPLIANCE BEFORE THE ASSESSING OFFICER DESPITE SEVERAL OPPORTUNITIES GRANTED. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND CONSIDERING THE UNDERTAKING GIVEN BY THE LD. COUNSEL FOR THE ASSESS EE THAT GIVEN AN OPPORTUNITY THE ASSESSEE SHALL APPEAR BEFORE THE ASSESSING OFFI CER TO SUBSTANTIATE HIS CASE TO THE SATISFACTION OF THE ASSESSING OFFICER, THEREFOR E, IN 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 ASSES SEE TO SUBSTANTIATE HIS CASE 4 ITA NO.1644/DEL/2016 AND DECIDE THE ISSUE AS PER FACT AND LAW. THE GROU NDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH JULY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 26-07-2018. 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