Badri Narain Sharma, Delhi V. ITO, Ward- 47(4), New Delhi

ITA 1946/DEL/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0191 (ITAT-DELHI)
• Duration Of Justice: 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 06-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKHAR VIPLAVA GUPTA
• Assessee Lawyers: P C YADAV SH MUKESH BANSAL
• Keywords: Opportunity of being heard; Application of stay
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. R.K PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.1946/DEL/2019 ASSESSMENT YEAR: 2014-15 BADRI NARAIN SHARMA 1186, 2 ND FLOOR, KUCHA MAHAJANI, CHANDNI CHOWK, DELHI-110006 PAN NO. AAAPS4979C VS INCOME TAX OFFICER WARD 47 (4) NEW DELHI (APPELLANT) (RESPONDENT) STAY APPLICATION NO.282/DEL/2019 (ITA NO.1946/DEL/2019) ASSESSMENT YEAR: 2014-15 BADRI NARAIN SHARMA 1186, 2 ND FLOOR, KUCHA MAHAJANI, CHANDNI CHOWK, DELHI-110006 PAN NO. AAAPS4979C VS INCOME TAX OFFICER WARD 47 (4) NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY SH. P. C. YADAV, ADVOCATE SH. MUKESH BANSAL, CA REVENUE BY SH. PRAKHAR VIPLAVA GUPTA, SR. DR DATE OF HEARING: 25/03/2019 DATE OF PRONOUNCEMENT: 25 /0 3 /201 9 ORDER PER R.K. PANDA, AM: 1. THIS APPEAL FILED BY THE ASSSESSEE IS DIRECTED AGAI NST THE ORDER DATED 20.12.2018 OF THE CIT(A)-16, NEW DELHI, RELATING TO A. Y. 2014-15. ITA NO.1946/DEL/2019 2 2. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE AS SESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS UNDER THE NA ME AND STYLE OF M/S. DHAN CHOLIA SONS. HE FILED HIS RETURN OF INCOME ON 24.112014 DECLARING TOTAL INCOME OF RS.4,95,270/-. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 143 (3) ON 29.12.2016 DETERMINING THE TOTAL INCOME AT 56,71,05 1/- WHEREIN HE MADE ADDITION OF RS.51,75,781/- U/S 68 O F THE IT ACT ON ACCOUNT OF UNSECURED LOANS. IN APPEAL THE LD. C IT(A) APART FROM SUSTAINING THE ADDITION MADE BY THE ASSESSING OFFICER ENHANCED THE INCOME BY RS.2,21,31,100/- ON ACCOUNT OF BOGUS LIABILITY. 3. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING FOLLOWING GRO UNDS OF APPEAL :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS UNJUSTIFIED FOR NOT DELETING ADDITION ON ACCOUNT OF UNSECURED LOANS WHEN THE APPELLANT HAS DULY SUBMITTED CONFIRM ATION FROM UNSECURED LOANS WITH ITO WHEREIN DULY CONFIRMED COPY OF ACCOU NT FROM UNSECURED LOANS HAD BEEN ENCLOSED AND ALL THE UNSECURED LOANS WERE OLD OUTSTANDING UNSECURED LOANS AND NO NEW LOAN WAS TAKEN DURING TH E YEAR UNDER CONSIDERATION. 2. THAT ALL CASH DEPOSITS IN BANK ACCOUNT HAVE BEEN D ULY ACCOUNTED FOR AS SALES MADE DURING THE FINANCIAL YEAR. 3. THAT ALL THE CREDITORS BALANCES TOTALING RS 2,21,3 1,100.00 ARE GENUINE. 4. THAT THE ASSESSEE AGED OVER 89 YEARS IS UNWELL AND BEDRIDDEN AND HENCE COULD NOT PROVIDE INFORMATION DURING THE COUR SE OF PROCEEDINGS WITH CIT (A). 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AND AMEND ANY OF THE GROUNDS OF APPEAL STATED HERE IN ABOVE EITHER BEFOR E OR AT THE TIME OF ITA NO.1946/DEL/2019 3 HEARING OF THE APPEAL. 4. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT THE ENHANCEMENT NOTICE ISSUED BY THE CIT(A) IS DATED 21.12.2018 FIXING THE CASE FOR HEARING ON 31.12.201 8. HOWEVER, THE DATE OF PASSING OF THE ORDER BY THE CIT(A) IS D ATED 20.12.2018. THEREFORE, ON THIS ACCOUNT ITSELF WHEN THE ORDER HAS BEEN PASSED BEFORE THE ISSUE OF ENHANCEMENT NOTICE THE ENHANCED INCOME CANNOT BE SUSTAINED. 5. SO FAR AS THE ADDITION SUSTAINED BY THE CIT(A) W HICH HAS BEEN MADE BY THE ASSESSING OFFICER IS CONCERNED, HE SUBMITTED THAT SINCE THE ASSESSEE IS 88 YEARS OLD AND QUITE I LL HE COULD NOT PRODUCE ALL THE DETAILS BEFORE THE CIT(A) FOR WHICH HE HAS PASSED THE EXPARTE ORDER. THEREFORE, HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER SINCE BOTH THE LOWER AUTHORITIES HAVE FAILED TO TAKE NOTE THAT ALL THE U NSECURED LOAN CREDITORS ARE OLD CREDITORS AND ASSESSEE HAS NOT TA KEN ANY FRESH LOAN DURING THE CURRENT YEAR. 6. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDER OF THE CIT(A). 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SINCE THE ASSESSEE BEFORE THE CIT(A) HAS NOT FILED THE REQUIS ITE DETAILS ON THE SPECIFIED DATE, THEREFORE, THE LD. CIT(A) PASSE D THE EXPARTE ORDER WHEREIN HE HAS SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER. IT IS ALSO APPARENT FROM THE ORD ER OF THE CIT(A) THAT THE DATE OF ORDER AS MENTIONED BY HIM AT PAGE 1 IS 20 TH DECEMBER, 2018 WHEREAS AT PAGE 7 OF THE APPEAL ORDE R, IT IS MENTIONED THAT NOTICE OF ENHANCEMENT WAS ISSUED ON ITA NO.1946/DEL/2019 4 21.12.2018 FIXING THE CASE FOR 31.12.2018. SINCE NO ONE ATTENDED ON THAT DATE AND NO SUBMISSION WAS ALSO FI LED, THEREFORE, ENHANCED THE INCOME BY RS.2,21,31,100/- ON THE BASIS OF REMAND REPORT OBTAINED FROM THE ASSESSING OFFICER. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE LOAN CREDITORS ADDED BY THE ASSESSING OFFICER ARE OLD OU TSTANDING CREDITORS AND THEREFORE, COULD NOT BE ADDED U/S 68 OF THE IT ACT FOR THE IMPUGNED ASSESSMENT YEAR. CONSIDERING THE T OTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTIC E WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT( A) WITH A DIRECTION TO ADJUDICATE THE ISSUE AFRESH AS PER FAC T AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. STAY APPLICATION NO.282/DEL/2019 (A. Y. 2014-15) 9. SINCE THE APPEAL OF THE ASSESSEE HAS BEEN HEARD AND ORDER HAS BEEN PASSED, THEREFORE, THE STAY APPLICATION FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. ACCORDINGLY THE STAY APPLICATI ON FILED BY THE ASSESSEE IS DISMISSED. 10. IN THE RESULT, THE STAY APPLICATION FILED BY TH E ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ITSELF I.E. ON 25.03.2019. SD/- SD/- (SUCHITRA KAMBLE) (R.K PANDA) JUDICIAL MEMBER ACCO UNTANT MEMBER *NEHA* DATE:- 25.03.2019 ITA NO.1946/DEL/2019 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER