ACIT, New Delhi V. Sh. Rajinder Bansal, Gurgaon

ITA 1910/DEL/2009

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5557 (ITAT-DELHI)
• Duration Of Justice: 8 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 20-07-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 08-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI FRIDAY BENCH F NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 1910/DEL/2009 ASSESSMENT YEAR: 2006-07 ACIT, CIRCLE-33(1), NEW DELHI. VS RAJINDER BANSAL, KOTHI NO. 15893, SECTOR 23, GURGAON. APPELLANT BY SHRI ATIQ AHMAD, SR. DR RESPONDENT BY NONE ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER DATED 27/02/2009 PASSED BY THE LD. COMMISSION ER OF INCOME TAX (APPEALS)-XXVI {CIT (A)}, NEW DELHI FOR ASSESSMENT YEAR 2006-07. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA D FILED THE RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 20,7 8,277/-. THE CASE WAS SELECTED FOR SCRUTINY AND DURING THE COURS E OF DATE OF HEARING 15.01.2018 DATE OF PRONOUNCEMENT 13.04.2018 ITA NO. 1910/DEL/2009 ASSESSMENT YEAR 2006-07 2 ASSESSMENT PROCEEDINGS IT WAS OBSERVED THAT THE ASS ESSEE HAD RECEIVED LOANS FROM SHRI KRISHAN BANSAL, SMT. KAUSH ALYA BANSAL, SHRI DEEPAK BANSAL, SMT. RITU BANSAL AND SHRI AJIT PRASAD JAIN. THE ASSESSING OFFICER (AO) ALSO NOTICED THAT THERE WERE CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE WAS ASKED TO SUBMIT BANK STATEMENTS AND THE PARTICULARS OF LENDERS. ON GOING THROUGH THE DETAILS AND EVIDENCES FURNISHE D BY THE ASSESSEE IN RESPECT OF THE LOANS, THE ASSESSING OFF ICER WAS OF THE OPINION THAT THE ASSESSEE COULD NOT PROVE THE GENUI NENESS AND CREDITWORTHINESS OF THE PARTIES. ACCORDINGLY, HE P ROCEEDED TO MAKE AN ADDITION OF RS. 81 LAKH ON ACCOUNT OF LOAN RECEIVED FROM THE ABOVE FIVE PERSONS. THE ASSESSING OFFICER ALSO MADE AN ADDITION OF RS. 19,10,000/- ON ACCOUNT OF UNEXPLAIN ED CASH DEPOSITS. THE ASSESSING OFFICER ALSO MADE A DISALL OWANCE OF RS. 83,66,569/- BEING DISALLOWANCE @ 30% OF THE LABOUR CHARGES ON ACCOUNT OF NON-SUBMISSION OF ANY EVIDENCE. THE ASS ESSMENT WAS COMPLETED AT AN INCOME OF RS. 2,04,54,846/-. 2.1 AGGRIEVED, THE ASSESSEE APPROACHED THE LD. COMM ISSIONER OF INCOME TAX (APPEALS) WHO PARTLY ALLOWED THE ASSE SSEES APPEAL. NOW, THE DEPARTMENT IS BEFORE THE INCOME TAX APPELL ATE TRIBUNAL AND HAS CHALLENGED THE ACTION OF THE LD. COMMISSION ER OF INCOME ITA NO. 1910/DEL/2009 ASSESSMENT YEAR 2006-07 3 TAX (APPEALS) IN DELETING THE ADDITION OF RS. 66 LA KH OUT OF TOTAL ADDITION OF RS. 81 LAKH ON ACCOUNT OF LOAN/S RECEIV ED BY THE ASSESSEE. THE DEPARTMENT HAS ALSO CHALLENGED THE A CTION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN DELETIN G THE ADDITION OF RS. 19,10,000/- MADE BY THE ASSESSING O FFICER ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSITS. THE DEPARTMENT IS ALSO CONTESTING THE RESTRICTION OF DISALLOWANCE @30 % OUT OF LABOUR CHARGES TO 2.5%. 3. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE/RESPO NDENT WHEN THE APPEAL WAS CALLED OUT FOR HEARING. NO APP LICATION FOR ADJOURNMENT HAS BEEN RECEIVED ON BEHALF OF THE ASSE SSEE RESPONDENT. A PERUSAL OF THE ORDER SHEET ENTRIES S HOWS THAT THIS APPEAL WAS FIRST FIXED FOR HEARING ON 20.07.2009 AN D SINCE THEN IT HAS BEEN ADJOURNED 13 TIMES OUT OF WHICH THE ASSESS EE /RESPONDENT WAS REPRESENTED ONLY ON TWO OCCASIONS. ORDER SHEET ENTRY DATED 20.09.2016 SHOWS THAT THE NOTICE ISSUED AT THE GIVEN ADDRESS OF THE ASSESSEE/RESPONDENT HAD BEEN RETURNE D UN- SERVED. THEREFORE, LOOKING INTO THE OVERALL CIRCUM STANCES, WE DEEM IT EXPEDIENT TO HEAR THE APPEAL EX PARTE QUA THE ASSESSEE/ RESPONDENT. ITA NO. 1910/DEL/2009 ASSESSMENT YEAR 2006-07 4 4. IN THE GROUNDS OF APPEAL RAISED BY THE DEPARTMEN T, THE DEPARTMENT HAS CHALLENGED THE ACTION OF THE LD. COM MISSIONER OF INCOME TAX (APPEALS) IN ADMITTING ADDITIONAL EVIDEN CE IN VIOLATION OF THE PROVISIONS OF RULE 46A OF THE INCOME TAX RUL ES, 1962. THE LD. SENIOR DEPARTMENTAL REPRESENTATIVE (SR. DR) DRE W OUR ATTENTION TO THE RELEVANT PARAGRAPHS IN THE IMPUGNE D ORDER AND SUBMITTED THAT THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) HAD ADMITTED ADDITIONAL EVIDENCES DURING THE COURSE OF FIRST APPELLATE PROCEEDINGS BUT HAD NOT GIVEN ANY OPPORTU NITY TO THE ASSESSING OFFICER TO REBUT THE SAME AND, THEREFORE, THE ADDITIONS OF RS. 66 LAKH AND RS. 19,10,000/- HAD WRONGLY BEEN DELETED AS THE SAME HAD BEEN DELETED WITHOUT GIVING ADEQUATE O PPORTUNITY TO THE ASSESSING OFFICER TO CONSIDER THE ADDITIONAL EVIDENCES WHICH HAD BEEN ADMITTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THE LD. SR. DR ALSO SUBMITTED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD ERRED IN R ESTRICTING DISALLOWANCE @ 30% OUT OF LABOUR CHARGES TO MERE 2. 5% WITHOUT ANY BASIS. THE LD. SR. DR SUBMITTED THAT SUITABLE DIRECTIONS MAY BE GIVEN TO THE LD. COMMISSIONER OF INCOME TAX (APP EALS) TO FOLLOW THE PROVISIONS OF RULE 46A. ITA NO. 1910/DEL/2009 ASSESSMENT YEAR 2006-07 5 5. WE HAVE HEARD THE LD. SR. DR AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD AS WELL AS THE ORDERS OF THE LO WER AUTHORITIES. WE FIND FORCE IN THE AVERMENT OF THE LD. SR. DR THA T THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS VIOLATED T HE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 196 2 INASMUCH AS HE HAS ALLOWED RELIEF TO THE ASSESSEE AFTER ADMI TTING ADDITIONAL EVIDENCE TO BE FILED BEFORE HIM AND HAS GIVEN RELIE F AFTER DULY CONSIDERING THE SAME. HOWEVER, THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) HAS NOT CALLED FOR ANY REMAND REPORT FROM THE ASSESSING OFFICER IN RESPECT OF THESE ADDITIONAL EV IDENCES. FROM THE READING OF RULE 46A, IT IS DISCERNIBLE THAT SUB -RULE (1) CONTEMPLATES CERTAIN CONDITIONS WHICH ARE REQUIRED TO BE FULFILLED BY THE ASSESSEE BEFORE PERMISSION TO PRODUCE ADDITI ONAL EVIDENCE CAN BE GRANTED TO HIM. FURTHER, AFTER PERMITTING T HE ASSESSEE TO ADDUCE ADDITIONAL EVIDENCE, THE ASSESSING OFFICER H AS TO BE GRANTED AN OPPORTUNITY TO EXAMINE THE EVIDENCE/S OR DOCUMENT/S OR THE WITNESS/ES PRODUCED BY THE ASSESSEE. THE AS SESSING OFFICER WOULD BE FURTHER AT LIBERTY TO PRODUCE ANY OTHER EVIDENCE IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE. HOWEVER, IT IS VERY MUCH EVIDENT FROM THE RECORDS T HAT THE ASSESSING OFFICER WAS NOT GIVEN ANY OPPORTUNITY TO RESPOND TO THE ITA NO. 1910/DEL/2009 ASSESSMENT YEAR 2006-07 6 ADDITIONAL EVIDENCE ADMITTED BY THE LD. COMMISSIONE R OF INCOME TAX (APPEALS). IN SUCH CIRCUMSTANCES, THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CANNOT BE UPHE LD. ACCORDINGLY, WE RESTORE THE FILE TO THE LD. COMMISS IONER OF INCOME TAX (APPEALS) WITH THE DIRECTION TO ADJUDICA TE THE ISSUES AFRESH AFTER GIVING OPPORTUNITY TO THE ASSESSING OF FICER TO EXAMINE, VERIFY AND COMMENT ON THE ADDITIONAL EVIDE NCE FILED BY THE ASSESSEE. ACCORDINGLY, ALL THREE GROUNDS ARE RE STORED TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ). 6. IN THE RESULT, THE APPEAL OF THE DEPARTMENT STAN DS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.04.2018. SD/- SD/- (PRASHANT MAHARISHI) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 13 TH APRIL, 2018 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT B Y ORDER 5. DR ASSTT. REGISTRAR