Neil Singh johar, New Delhi V. ITO, New Delhi

ITA 1714/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3800 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 16-06-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 16-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: ASHOK MALIK
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `F : NEW DELHI) BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.1714/DEL./2010 (ASSESSMENT YEAR : 2005-06) NEIL SINGH JOHAR, VS. ITO, WARD 22(4), M-65, SAKET, NEW DELHI. NEW DELHI.-110 017. (PAN/GIR NO.AHEPJ4495R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHOK MALIK, AR REVENUE BY : SHRI H.K. LAL, SR.DR ORDER PER A.D. JAIN: JM THE ASSESSEES APPEAL FOR AY 2005-06 IS AGAINST TH E ORDER OF THE CIT(A)-XXIII, NEW DELHI, RAISING THE FOLLOWING GROUNDS: 1. THE LD.CIT(A) HAS GROSSLY ERRED ON THE FACTS OF THE CASE AND IN LAW IN UPHOLDING THE ADDITION OF RS.18,50,000/- FROM UNDIS CLOSED SOURCES U/S 69 OF THE I.T. ACT, 1961. 2. THE LD.CIT(A) HAS NOT ADJUDICATED THE FIRST GROU ND OF APPEAL REGARDING PROPER SERVICE OF NOTICE UPON THE APPELLANT. 3. THE LD.CIT(A) HAS ALSO NOT ADJUDICATED THE SECON D GROUND OF APPEAL REGARDING THE STATUS OF THE ASSESSEE BEING NON-RES IDENT AND NOT REQUIRED TO FILE HIS RETURN OF INCOME IN ABSENCE OF ANY INCOME EARNED DURING THE PREVIOUS YEAR. 4. THE APPELLANT SEEKS LEAVE TO ADD OR TO AMEND THE FOREGOING GROUNDS OF APPEAL, IF IT BECOMES NECESSARY TO DO SO IN THE INT EREST OF JUSTICE. 2. GROUND NOS.2 & 3 STATE THAT THE CIT(A) HAS NOT A DJUDICATED THE ISSUE REGARDING PROPER SERVICE OF NOTICES ON THE ASSESSEE AND THAT OF THE STATUS OF THE ASSESSEE BEING NON- RESIDENT AND NOT REQUIRED TO FILE OF HIS RETURN OF INCOME DURING THE PREVIOUS YEAR. ITA NO.1714/DEL./2010 (A.Y. : 2005-06) 2 3. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THESE ISSUES WERE TAKEN UP AS GROUND NOS.2 AND 3, RESPECTIVELY BY THE ASSESSEE BEFORE TH E CIT(A). WITH REGARD TO THESE ISSUES, THOUGH IN PARA. 3 OF THE IMPUGNED ORDER, THE CIT(A) HAS OBSERVED THAT HE WOULD ADJUDICATE THE ABOVE GROUNDS IN A CONSOLIDATED MANN ER, ALONG WITH GROUND NOS.1 AND 4, SUCH SEARCH ADJUDICATION ON THESE ISSUES HAS NOT BE EN DONE, WHEREAS THE ISSUE WITH REGARD TO THE NATURE OF INVESTMENT MADE BY THE ASSESSEE IN INDIA, IN TATA MUTUAL FUND, HDFC MUTUAL FUND AND FRANKLIN TEMPLETON MUTUAL FUND AS TO WHETHER IT WAS FOREIGN EARNED INCOME OR NOT AND THE ISSUE AS TO WHETHER THE ASSES SEE HAD OR HAD NOT MADE ANY CONCEALMENT ABOUT HIS INCOME IN THE YEAR, HAVE BEEN DECIDED. THE DECISION ON THE OTHER TWO ISSUES, ON MERITS WAS NOT GIVEN BY THE CIT(A). 4. BOTH THE ISSUES OF PROPER SERVICE OF THE NOTICE AS WELL AS STATUS OF THE ASSESSEE ARE ISSUES WHICH GO TO THE VERY ROOT OF THE ASSESSMENT AND NON-ADJUDICATION THEREOF AT THE END OF THE CIT(A), EVEN THOUGH BOTH THESE ISSUES WERE R AISED BEFORE THE CIT(A) BY THE ASSESSEE BY WAY OF SPECIFIC GROUND NOS.1 & 2, GIVES RISE TO THE REQUIREMENT OF REMITTING THE MATTER TO THE CIT(A) TO DECIDE THESE ISSUES BY RECORDING SPECIFIC FINDINGS THEREON. IN THE INTEREST OF JUSTICE, THEREFORE, WE REMIT THIS M ATTER TO THE FILE OF THE CIT(A) FOR DECISION AFRESH ON THE AFORESAID GROUND NOS.1 & 2 TAKEN BY T HE ASSESSEE BEFORE HIM AND TO THEREAFTER DECIDE THE OTHER GROUNDS RAISED BY THE A SSESSEE IN THE LIGHT OF THE DECISION TO BE ARRIVED AT BY HIM ON THESE ISSUES. 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. 6. ORDER PRONOUNCED IN OPEN COURT ON THE DATE OF HE ARING ON 16.06.2010. SD/- SD/- (SHAMIM YAHYA) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 16.06.2010. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXIII, NEW DELHI 5.CIT(ITAT), NEW DELHI. AR/ITAT ITA NO.1714/DEL./2010 (A.Y. : 2005-06) 3