M/s. Mittal Hardware Store, New Delhi V. ITO, New Delhi

ITA 2057/DEL/2015

• Counselvise Citation: 205720114 RSA 2015
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 18-08-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 08-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: DR ANTHWAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC -I, NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 2057/DEL./2015 : ASSTT. YEAR : 2010-11 MITTAL HARDWARE STORE D-8/1, GURUDWARA ROAD, KOTLA MUBARAKPUR NEW DELHI VS I.T.O. WARD-32(2) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAAFM7744B APPELLANT BY : SH. D. R.ANTHWAL, ADVOCATE RESPONDENT BY : SH. K.K.JAI SWAL, SR. DR DATE OF HEARING : 18.08.2015 DATE OF PRONOUNCEMENT : 02.09.2015 ORDER PER N.K. SAINI, A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 12.02.2015 OF THE LD. CIT(A)- XVIII, NEW DELHI. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS AP PEAL RELATES TO THE CONFIRMATION OF ADDITION OF RS. 3,24,500/- MADE BY THE AO. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSES SEE FILED THE RETURN OF INCOME ON 11.08.2010 DECLARING AN INCOME OF RS. 1,1 5,813/-, LATER ON THE CASE WAS SELECTED FOR SCRUTINY. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS T HE AO NOTICED THAT ONE OF THE PARTNER SH. SAT NARAIN MITTAL HAD INTROD UCED CAPITAL ITA NO.2057/DEL/2015 2 AMOUNTING TO RS. 16,44,350/-. HE ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE SAME. IN RESPONSE THE ASSESSEE FURNIS HED THE LEDGER ACCOUNT OF SH. S.N.MITTAL WHICH REVEALED THAT RS. 1 1,90,000/- WAS INTRODUCED IN CASH FROM SAVING BANK ACCOUNT MAINTAI NED WITH ALLAHABAD BANK. TO VERIFY THE SAID TRANSACTION, THE AO ASKED THE ASSESSEE TO SUBMIT THE COPY OF THE SAID SAVING BANK ACCOUNT. FROM THE BANK STATEMENT, THE AO NOTICED THAT CASH OF RS. 14, 30,000/- WAS WITHDRAWN FROM THE BANK AND RS. 6,24,500/- WAS DEPO SITED IN THE SAME BANK, SO, THE NET CASH REMAINED AT RS. 8,05,50 0/-. HE, THEREFORE, MADE THE ADDITION OF RS. 3,54,500/- (RS. 11,90,000- RS. 8,05,500 ). 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTE R TO THE LD. CIT(A) WHO CONFIRMED THE ADDITION BY OBSERVING AS UNDER :- THE AR OF THE APPELLANT SUBMITTED THAT THE CAS H WAS DEPOSITED OUT OF THE PROPERTIES. ASSESSEE HAS HOWEV ER NOT REPORTED ANY INCOME FROM SALE OF PROPERTY UNDER THE HEAD CAPITAL GAIN. IN VIEW OF THIS, THE SOURCE FOR THE S AID DEPOSIT IS NOT PROVED. HENCE, THE SAME IS NOT ACCEPTED. GROUND RAISED IN APPEAL IS DISMISSED. NOW THE ASSESSEE IS IN APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE LD. CIT(A) HAD NOT CONSIDERED THE DOCUMENTS FURNISHED BY THE A SSESSEE TO SUBSTANTIATE THAT CASH WAS DEPOSITED OUT OF THE SAL E OF THE PROPERTIES. IN HIS RIVAL SUBMISSIONS, THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. ITA NO.2057/DEL/2015 3 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH TH E PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE LD. CIT(A) DID NO T ACCEPT THE CONTENTION OF THE ASSESSEE THAT THE CASH WAS DEPOSI TED OUT OF THE SALE OF PROPERTIES, ONLY ON THIS BASIS THAT NO INCOME W AS REPORTED UNDER HEAD CAPITAL GAIN. HOWEVER, HE DID NOT REBUT THIS C ONTENTION OF THE ASSESSEE THAT PROPERTY WAS SOLD. IN MY OPINION IT IS NOT NECESSARY THAT FROM THE SALE OF PROPERTY THERE IS ALWAYS A GAIN BE CAUSE THERE CAN BE A LOSS ALSO. I, THEREFORE, BY CONSIDERING THE TOTAL ITY OF THE FACTS DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND THE ISSUE IS REMANDED BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATE D AFRESH IN ACCORDANCE WITH LAW, AFTER PROVIDING DUE AND REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 02/09/2015). SD/- (N. K. SAINI) AC COUNTANT MEMBER DATED: 02/ 09/2015 *B.RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.2057/DEL/2015 4 DATE INITIAL 1. DRAFT DICTATED ON 08.2015 2. DRAFT PLACED BEFORE AUTHOR 08.2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.