ITO, Faridabad V. Sh Attar Singh Bhadana, Faridabad

ITA 1774/DEL/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 6856 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-10-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 19-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PEEYUSH SOUKAR
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A : NEW DELHI BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND SHRI I.P.BANSAL, JUDICIAL MEMBER ITA NO.1774/DEL/2010 ASSESSMENT YEAR : 2003 - 04 INCOME TAX OFFICER, WARD-11(4), FARIDABAD. VS. SHRI AT TAR SINGH BHADANA, H.NO.1042, SECTOR-16, FARIDABAD. PAN NO.AEZPS1674R. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PEEYUSH SOUKAR, SR.DR. RESPONDENT BY : NONE. ORDER PER I.P.BANSAL, JM : THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER OF CIT(A) DATED 12.3.2010 FOR THE AY 2003-04. GROUNDS OF APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) HAS ERRED IN ADMITTING AD DITIONAL EVIDENCE IN CONTRAVENTION OF RULE 46A OF INCOME TAX RULE, 1962 WITHOUT GRANTING REASONABLE OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE EVIDENCE FURNISHED BEFORE THE LD.CIT(A). 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD.CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELE TING THE ADDITION OF RS.10,54,769/- MADE BY THE ASSESSING OF FICER ON ACCOUNT OF UNEXPLAINED DEPOSITS IN BANK ACCOUNT DISREGARDING THE FACT THAT THE ASSESSEE HAD FAILED TO DISCHARGE HIS ONUS TO EXPLAIN THE SOURCE OF ENTRIES APPEARING IN THE S.B.ACCOUNT NO.20187 AMOUNTING TO RS.10,54,769/-. 2. NOTICE OF HEARING WAS SENT TO THE ASSESSEE. HOW EVER, AT THE TIME OF HEARING, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. THEREFORE, WE PROCEED TO DECIDE THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE AFTER HEARING LEARNED DR. 2 3. DEPOSITS IN SAVINGS BANK ACCOUNT NO.20187 WITH B ANK OF BARODA, FARIDABAD WERE ADDED TO THE INCOME OF THE ASSESSEE BEING UNEXPLAINED DEPOSITS. THE DETAILS OF DEPOSITS HAD BEEN GIVEN AT PAGE 6 OF THE ASSESSMENT ORDER AND THESE DEPOSITS ARE FR OM 3.4.2002 TO 12.12.2002. BEFORE THE CIT(A), THE ASSESSEE SUBMIT TED THE COMPLETE NARRATIONS OF CREDIT ENTRIES REFLECTED IN THE SAVIN GS BANK ACCOUNT ALONGWITH CONFIRMATIONS AND THIS FACT IS RECORDED I N PARA 5 OF THE APPELLATE ORDER PASSED BY CIT(A) WHEREIN HE HAS REP RODUCED THE WRITTEN SUBMISSIONS OF THE ASSESSEE. ON THESE DOCU MENTS, LEARNED CIT(A) HAS GIVEN FINDING IN PARA 6 THAT HE HAS STUD IED/VERIFIED THE ENTIRE CREDIT ENTRIES APPEARING IN THE BANK ACCOUNT AND FOUND THAT BANK ACCOUNT BEING AN AUTHENTIC STATEMENT WHICH REM AINS UNCHALLENGED BY THE AO CANNOT BE TREATED TO BE BOOK S OF ACCOUNT. THEREFORE, THESE CREDIT ENTRIES CANNOT BE ADDED TO THE INCOME OF THE ASSESSEE UNDER THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT, 1961 (ACT). THEREAFTER, LEARNED CIT(A) HAS REPRODU CED THE NARRATIONS OF THE ASSESSEE REGARDING THESE ENTRIES. 4. WE HAVE PERUSED THE NARRATIONS. IN THESE NARRAT IONS, THE ASSESSEE HAS STATED THAT SOME OF THESE ENTRIES WERE LOAN AND ALSO SOME OF THE ENTRIES REPRESENTED THE WITHDRAWALS MAD E EARLIER. WHEREVER LOAN IS TAKEN BY THE ASSESSEE, THE PAN IS MENTIONED. THEREFORE, IT APPEARS THAT THE ASSESSEE HAS GIVEN A FRESH EXPLANATION REGARDING THE CREDIT ENTRIES WHICH WERE NOT GIVEN B Y THE AO AND HAS ALSO SUBMITTED CERTAIN DOCUMENTS WHICH WERE NOT MAD E AVAILABLE TO THE AO. THERE IS NO MENTION OF REMAND REPORT BEING CALLED BY THE LEARNED CIT(A). IN THIS VIEW OF THE SITUATION, REL YING ON GROUND NO.1, IT WAS PLEADED BY THE LEARNED DR THAT THE MATTER REQUI RES TO BE RESTORED BACK TO THE FILE OF THE AO TO VERIFY THE GENUINENES S OF THE STATEMENT MADE BEFORE THE CIT(A) AS THESE EVIDENCES WERE NOT CONFRONTED TO THE AO. 3 5. WE HAVE CAREFULLY GONE THROUGH THE ORDER PASSED BY THE AO AND THE CIT(A) AND WE FOUND THAT THERE IS A FORCE IN TH E CONTENTION OF THE REVENUE THAT THE FINDINGS RECORDED BY THE CIT(A) AR E BASED UPON THE ADDITIONAL DOCUMENTS/EVIDENCES/EXPLANATION SUBMITTE D BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE CIT(A). THE SE HAVE NEVER BEEN CONFRONTED TO THE AO. THUS, THERE IS VIOLATION OF RULE 46A OF THE INCOME TAX RULES, 1962. IN THESE CIRCUMSTANCES, WE CONSIDER IT JUST AND PROPER TO RESTORE THIS ASSESSMENT TO THE FILE O F THE AO WITH A DIRECTION TO RECONSIDER THE IMPUGNED ADDITION AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. WE DIRECT ACC ORDINGLY. 6. AS WE ARE RESTORING THIS ISSUE TO THE FILE OF TH E AO, WE DO NOT EXPRESS ANY OPINION ON THE MERITS OF THE ADDITION W HICH WILL BE REDECIDED BY THE AO AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF HEARING AND ALSO THE OPPORTUNITY TO PRODUCE ANY EVIDENCE WHICH ASSESSEE MAY WANTS TO PRODUCE TO SUP PORT HIS CASE. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. DECISION PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER, 2010. SD/- SD/- (G.E.VEERABHADRAPPA) (I.P.BANSAL) VICE PRESIDENT JUDICIAL MEMBER DATED : 29.10.2010. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR 4