Smt Prem Kaur, New Delhi V. DCIT, New Delhi

ITA 205/DEL/2011

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0177 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 21-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Keywords: Principle of natural justice; Additional evidence
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES F: NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER ITA NOS. 205 & 206/DEL/2011 ASSESSMENT YEARS: 2005-06 & 2006-07 PREM KAUR, VS. DCIT, 200, AMBIKA VIHAR, CENTRAL CIRCLE 4, ROOM NO. 6 06, PASCHIM VIHAR, 6 TH FLOOR, AAYAKAR BHAWAN, NEW DELHI. LAXMI NAGAR, NEW DELHI. AKRPK4678H (APPELLANT) (RESPONDENT) APPELLANT BY : SH. AMIT SHARMA, CA RESPONDENT BY : SH. H.K. LAL, SR. DR ORDER PER I.P. BANSAL, J.M. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE. TH EY ARE DIRECTED AGAINST TWO SEPARATE ORDERS PASSED BY LD. CIT(A) DA TED 3.11.10 FOR ASSESSMENT YEARS 2005-06 AND 2006-07. 2. GROUNDS OF APPEAL IN BOTH THE APPEALS ARE IDENTI CAL EXCEPT DIFFERENCE IN FIGURE. GROUNDS OF APPEAL FOR A.Y. 2005-06 ARE REPRODUCED BELOW: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE CIT(A) HAS ERRED IN NOT HOLDING THAT THE ASSESSMENT ORDER WAS ILLEGA L. AS THERE WAS NO PENDING ASSESSMENT AS ON THE DATE OF SEARCH AND ADD ITIONS ARE NOT BASED UPON ANY SEIZED MATERIAL OR ANY DEPOSITION DURING T HE COURSE OF SEARCH. ITA NOS. 205 & 206/D/2011 2 RELIANCE IS PLACED ON SHRI ANIL KUMAR BHATIA & ORS. VS. ACIT ITA NO. 2660 TO 2665/DEL/2009. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS ERRED IN UPHOLDING THE ADDITION TO THE TUNE OF RS. 2,51,1 40/- MADE BY THE AO, GIVEN THE FACT THAT SAID SUM WAS RECEIVED BY THE AP PELLANT AS UNSECURED LOAN. THE SAME IS OPEN FOR VERIFICATION AND DULY R ECORDED IN THE BOOKS OF APPELLANT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS ERRED BY NOT ADMITTING THE ADDITIONAL EVIDENCE AS PER RUL E 46A OF THE I.T. RULES. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUNDS EITHER BEFORE OR DURING THE COURSE OF HEARI NG OF THE APPEAL. 3. FIGURE FOR A.Y. 2006-07 AS EXISTED IN THE GROUND S OF APPEAL IS SUM OF RS. 7,90,000/--. 4. THE FACTS OF BOTH THESE APPEALS ARE IDENTICAL AN D FOR THE SAKE OF CONVENIENCE BOTH THESE APPEALS ARE BEING DISPOSED O F BY THIS CONSOLIDATED ORDER. 5. BOTH THE ORDERS OF CIT(A) ARE EX-PARTE ORDER QUA THE ASSESSEE. FOR THE DEFAULT OF ASSESSEE TO REPRESENT HER APPEAL ON VARIOUS DATES, LD. CIT(A) HAS CONFIRMED THE IMPUGNED ADDITIONS. HE HAS ALSO REJECTED THE CLAIM OF THE ASSESSEE REGARDING ADMISSION OF ADDITIONAL EVID ENCE MADE VIDE APPLICATION FILED UNDER RULE 46A OF INCOME TAX RULE S, 1962. 6. THE DEPARTMENT HAS SOUGHT ADJOURNMENT AND THE MA TTER IS VERY SMALL, THEREFORE, THE REQUEST OF THE DEPARTMENT FOR ADJOURNMENT WAS REJECTED. ITA NOS. 205 & 206/D/2011 3 7. IT IS THE MAIN CASE OF THE ASSESSEE THAT ADDITIO N HAS WRONGLY BEEN SUSTAINED BY REJECTING THE APPLICATION OF THE ASSES SEE FOR ADMISSION OF ADDITIONAL EVIDENCE. IT IS THE CASE OF THE ASSESSE E THAT FOR BOTH THE YEARS THE ASSESSEE HAS FILED EVIDENCES TO SHOW THAT THE C REDITORS IN THE NAME OF WHICH THE AMOUNTS WERE OUTSTANDING HAD PROVIDED THE CONFIRMATIONS OF HAVING PAID THE SAID AMOUNTS TO THE ASSESSEE. THE APPLICATION OF THE ASSESSEE FILED FOR THIS PURPOSE HAS ALSO BEEN REPRO DUCED IN THE ORDER OF CIT(A). IT IS THE CASE OF THE ASSESSEE THAT CIT(A) HAS WRONGLY REJECTED THE SAID APPLICATION BY NOT ADMITTING THE RELEVANT CLAI M OF THE ASSESSEE. 8. IF THE FACTS FOR A.Y. 2005-06 ARE SEEN, IT WILL BE OBSERVED THAT THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON A NOT ICE ISSUED U/S 153A OF THE ACT AT AN INCOME OF RS. 47,23,211/- WHICH INCLU DED AN INCOME OF RS. 30 LAKH SURRENDERED DURING THE COURSE OF SEARCH CONDUC TED ON ASSESSEE ON 22 ND SEPTEMBER, 2005. SIMILARLY FOR A.Y. 2006-07 RETUR N OF INCOME WAS FILED AT AN INCOME OF RS. 27,72,472/- WHICH INCLUDED SURR ENDERED INCOME OF RS. 23 LAKH. 9. FOR A.Y. 2005-06 THE FOLLOWING AMOUNTS WERE ADDE D TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF THE FACT THAT CONFIRMATI ONS WERE NOT FILED: - SL. NO. NAME AMOUNT (IN RS.) REMARKS 1. SHRI GAJJAN SINGH 1,14,350/- NO CONFIRMATION F ILED. 2. SHRI BALWANT SINGH 1,36,790/- NO CONFIRMATION FILED. TOTAL: - 2,51,140/- ITA NOS. 205 & 206/D/2011 4 10. SIMILARLY FOR A.Y. 2006-07 FOLLOWING AMOUNT WAS ADDED ON ACCOUNT OF NON-FILING OF CONFIRMATION: - SL. NO. NAME AMOUNT (IN RS.) REMARKS 1. SHRI GURCHARAN SINGH 1,97,350/- CONFIRMATION NO T FILED 2. SHRI AVTAR SINGH MAVI 1,56,400/- CONFIRMATION N OT FILED 3. SHRI BALDEV SINGH 1,87,580/- CONFIRMATION NOT FILED 4. SHRI AMARJEET SINGH 2,48,760/- CONFIRMATION NO T FILED TOTAL 7,90,090/- 11. BEFORE LD. CIT(A) ASSESSEE HAS FILED ADDITIONAL EVIDENCE WHICH HAS BEEN REJECTED ON THE GROUND THAT ASESSEE HAS NOT MA DE OUT ANY CASE FOR INVOKING RULE 46A. 12. RELYING UPON THE AFOREMENTIONED FACTS, IT WAS T HE SUBMISSION OF LD. AR THAT ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO PROVE ITS CASE AS NOW THE ASSESSEE HAS ALL THE EVIDENCES TO PROVE THE CASH CREDITS. 13. ON THE OTHER HAND, IT IS THE CASE OF THE DEPART MENT THAT LD. CIT(A) HAS RIGHTLY UPHELD THE ADDITION AND HE HAS RIGHTLY REJE CTED THE APPLICATION OF THE ASSESSEE FILED UNDER RULE 46A OF I.T. RULES. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IN OUR OPINION, CONSIDE RING THE RULES OF NATURAL JUSTICE, THE REQUEST OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE SHOULD HAVE BEEN ACCEPTED BY LD. CIT(A). IT IS NOT THE CASE OF THE DEPARTMENT THAT ASSESSEE DID NOT SHOW THE INCOME IN THE RETURN WHICH WAS PROMISED TO BE SURRENDERED DURING THE COURSE OF SEA RCH. IF IT IS SO, THEN THE ITA NOS. 205 & 206/D/2011 5 CASE OF THE ASSESSEE HAS TO BE TAKEN IN THE RIGHT S PIRIT. THEREFORE, WE ARE OF THE OPINION THAT IT IS THE FIT CASE WHERE THE MATTE R IS REQUIRED TO BE RESTORED BACK TO THE FILE OF AO TO GIVE THE ASSESSEE AN OPPO RTUNITY TO MEET HER CASE. FOR THIS PURPOSE, WE RESTORE BOTH THE APPEALS TO TH E FILE OF AO WITH A DIRECTION TO PROVIDE THE ASSESSEE A REASONABLE OPPO RTUNITY OF HEARING AND TO PLACE EVIDENCE ON RECORD TO PROVE THE AFOREMENTIONE D CASH CREDITS. AFTER GIVING SUCH OPPORTUNITY, THE AO WILL RE-ADJUDICATE THIS ISSUE FOR BOTH THE YEARS AS PER PROVISIONS OF LAW. WE DIRECT ACCORDIN GLY. FOR STATISTICAL PURPOSES BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED IN THE MANNER AFORESAID. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 21.3.11 SD/- SD/- (K.G. BANSAL) (I.P. BANSAL) ACCOUNTANT MEMBE R JUDICIAL MEMBER * KAVITA DATED: 21.03.2011. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT