Man Mohan Garg, New Delhi V. ITO, New Delhi

ITA 1659/DEL/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7068 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 01-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 3 , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO. 1659 /DEL/201 5 AY: 20 09 - 10 SH. MAN MOHAN GARG VS. ITO, WARD 58(2) 11/411 B, BALAR KUTIR, GALI NO.11 NEW DELHI LALITA PARK, LAXMI NAGAR NEW DELHI 92 PAN: AAQPG 0847 B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. C.S.ANAND, C.A. RESPONDENT BY : SH. ANIL SHARMA, SR.D.R. ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 19 , NEW DELHI DT. 23.01. 2015 PE RTAINING TO THE ASSESSMENT YEAR (A.Y.) 20 09 - 10. 2. FACTS IN BRIEF: - THE ASSESSEE IS AN LIC AGENT AND FILE D HIS RETURN OF INCOME ON 26.3. 20 10 DECLARING TOTAL INCOME OF RS. 1 , 47 , 940 / - . HE EARNS A COMMISSION FOR MEDIATING IN SALE OF MACHINERY . THE ASSESSING OFFICER (A.O.) PASS ED AN ORDER UNDER SECTION 143 (3) ON 29.12 2011 DETERMINING THE INCOME AT RS.23,89,940/ - . 2.1. ON APPEAL THE F IRST A PPELLATE A UTHORITY GRANTED PART RELIEF . A GGRIEVED THE ASS ES SEE IS IN APPEAL BEFORE ME . ITA NO.1659/DEL/2015 A.Y. 2009 - 10 SH. MAN MOHAN GARG, NEW DELHI 2 3. THE ASSESSEE MOVED AN APPLICATION UNDER RULE 29 OF ITAT R ULES , 1963 SEEKING ADMISSION OF ADDITIONAL EVIDENCE WHICH ARE AS FOLLOWS . ( I ) COMPUTATION OF INCOME ALONG WITH RELEVANT ENCLOSURES OF SHRI RAMESH CHAND GUPTA FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10. ( II ) THE ASSESSEE SUBMIT S THAT THESE DOCUMENTS PROVE THAT SH. RAMESH CHAND ER GUPTA OF M/S RS ELECTRICALS HAS SOLD MACHINES FOR RS. 18 LAKHS AND DECLARED SHORT TERM CAPITAL GAIN OF RS.1,97,377/ - (RS.18,00,000 ( - ) RS.16,05,623) AND THAT HE HAD ALSO PAID INCOME TAX ON THE SAME. HE SUBMITS THAT THIS RETURN OF INCOME AND THE INTIMATION ISSUED BY THE DEPARTMENT U/S 143(1) OF THE ACT SHOWS THAT SHRI RAMESH CHAND ER GUPTA IS THE SOLE PROPRIETOR OF M/S R.S. ELECTRICALS. 4. THE LD.C OUNSEL FOR TH E ASSESSEE SUBMITTED THAT T HE A.O. HAD CONDUCTED ENQUIRY BEHIND THE BACK OF THE ASSESSEE AND CAME TO A WRONG CONCLUSION THAT M/S R.S. ELECTRICALS HAS NOT FILED ITS INCOME TAX RETURNS . IT WAS SUBMITTED THAT NEITHER THE A.O. NOR THE LD.CIT(A) DIRECTED THE ASSESSEE TO FILE ANY OF THESE DOCUMENTS AND HENCE THESE COULD NOT BE OBTAINED FROM THE THIRD PARTY AND FILED. HE PRAYED THAT THESE ADDITIONAL EVIDENCES MAY BE ADMITTED. 5. THE LD.D.R. ON THE OTHER HAND RELIED ON THE ORDER OF LOWER AUTHORITIES. ITA NO.1659/DEL/2015 A.Y. 2009 - 10 SH. MAN MOHAN GARG, NEW DELHI 3 6. A FTER HEARING RIVAL CONTENTION S I FIND THAT THIS IS A FIT CASE FOR ADMISSION OF ADDITIONAL EVIDENCE , AS THE ASSESSING OFFICER HA S MADE ENQUIR IES BEHIND THE BACK OF THE ASSESSEE AND HAS MADE ADDITION WITHOUT PROPER ENQUIR IES. THUS I ADMIT THE ADDITIONAL EVIDENCE . I SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. 7 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH JANUARY, 2017. SD/ - (J.SUDHAKAR REDDY) ACCOUNTANT MEMBER DATED: THE 05 TH JANUARY, 2017. *MANGA ITA NO.1659/DEL/2015 A.Y. 2009 - 10 SH. MAN MOHAN GARG, NEW DELHI 4 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR