Late Davinder Kumar, New Delhi V. DCIT, New Delhi

ITA 2060/DEL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7043 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 13-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CHETAN GARG
• Keywords: Search and seizure; Opportunity of being heard
• Section: 143(3); 153A; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI P. M. JAGTAP, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NOS.2056 TO 2060/DEL/2016 ASSESSMENT YEARS : 2008-09 TO 2012-13 LATE DAVINDER KUMAR, THROUGH GEETA KUMAR, D-1075, NEW FRIENDS COLONY, NEW DELHI. VS. DCIT, CENTRAL CIRCLE- 15, NEW DELHI. PAN : ACHPK3992J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI CHETAN GARG, ADV. DEPARTMENT BY : SHRI ARUN KUMAR YADAV, SR.DR DATE OF HEARING : 11-07-2018 DATE OF PRONOUNCEMENT : 13-07-2018 O R D E R PER BENCH : THESE FIVE APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST FIVE SEPARATE ORDERS PASSED BY THE LD. CIT(A)- 29, NEW DELHI DATE D 24.02.2016 WHEREBY HE CONFIRMED THE PENALTY IMPOSED BY THE ASSESSING OFFI CER U/S 271(1)(C) FOR ALL THE FIVE YEARS UNDER CONSIDERATION AS UNDER :- (I) A.Y. 2008-09 - RS.8,36,195/- (II) A.Y. 2009-10 - RS.4,16,901/- (III) A.Y. 2010-11 - RS.2,36,671/- (IV) A.Y. 2011-12 - RS.49,209/- (V) A.Y. 2012-13 - RS.1,78,248/- 2 ITA NOS.2056 TO 2060/DEL/2016 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L. A SEARCH AND SEIZURE ACTION U/S 132 WAS CONDUCTED AT THE RESIDENTIAL PRE MISES OF THE ASSESSEE ON 06.09.2011. PURSUANT TO THE SAID ACTION, NOTICES U /S 153A WERE ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 19.11.2012 FOR ASSESSMENT YEARS 2008-09, 2009-10, 2010-11 AND 2011-12. IN RESPONSE TO THE S AID NOTICES, RETURNS OF INCOME FOR ALL THE RELEVANT FOUR YEARS WERE FILED B Y THE ASSESSEE DECLARING TOTAL INCOME OF RS.9,52,618/-, RS.18,250/-, RS.7,04,840/- AND RS.1,58,487/- FOR ASSESSMENT YEARS 2008-09, 2009-10, 2010-11 AND 2011 -12 RESPECTIVELY. AS FOUND BY THE ASSESSING OFFICER, THE ASSESSEE JOINTL Y WITH HIS WIFE SMT. GEETA KUMAR HAD MAINTAINED A BANK ACCOUNT WITH HSBC BANK, GENEVA, SWITZERLAND WHICH WAS NOT DISCLOSED. AS FURTHER FOUND BY THE A SSESSING OFFICER, RETURN ON DEPOSITS IN THE SAID ACCOUNT WAS CREDITED BY HSBC B ANK IN FOREIGN EXCHANGE. SINCE THE SAID RETURN ON DEPOSITS RECEIVED BY THE A SSESSEE IN FOREIGN EXCHANGE REPRESENTED INCOME OF THE ASSESSEE AND THE SAME WAS NOT DISCLOSED IN THE RETURNS OF INCOME, THE ASSESSING OFFICER CONVERTED THE AMOU NTS OF SUCH RETURN IN INDIAN RUPEE AT THE RATE PREVAILING ON 31.03.2008 AND ADDE D THE AMOUNTS SO CONVERTED TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSME NT COMPLETED U/S 153A/143(3) FOR ALL THE FOUR YEARS UNDER CONSIDERATION AS UNDER :- (I) A.Y. 2008-09 - RS.25,83,263/- (II) A.Y. 2009-10 - RS.15,49,956/- (III) A.Y. 2010-11 - RS.9,45,003/- (IV) A.Y. 2011-12 - RS.4,50,393/- 3 ITA NOS.2056 TO 2060/DEL/2016 3. THE ASSESSMENT FOR ASSESSMENT YEAR 2012-13 WAS A LSO COMPLETED BY THE ASSESSING OFFICER U/S 143(3) VIDE ORDER DATED 13.03 .2014 WHEREIN ADDITION OF RS.10,00,000/- WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CASH FOUND DURING THE COURSE OF SEAR CH. 4. THE PENALTY PROCEEDINGS U/S 271(1)(C) WERE ALSO INITIATED BY THE ASSESSING OFFICER SEPARATELY IN RESPECT OF ADDITION MADE TO THE TOTAL INCOME OF THE ASSESSEE FOR ALL THE FIVE YEARS UNDER CONSIDERA TION AS ABOVE AND SINCE HE DID NOT FIND MERIT IN THE DETAILED EXPLANATION OFFERED BY THE ASSESSEE IN WRITING IN RESPONSE TO THE NOTICES ISSUED DURING THE COURSE OF THE SAID PROCEEDINGS, THE ASSESSING OFFICER PROCEEDED TO IMPOSE PENALTY U/S 2 71(1)(C) FOR ALL THE FIVE YEARS UNDER CONSIDERATION AS UNDER :- (I) A.Y. 2008-09 - RS.8,36,195/- (II) A.Y. 2009-10 - RS.4,16,901/- (III) A.Y. 2010-11 - RS.2,36,671/- (IV) A.Y. 2011-12 - RS.49,209/- (V) A.Y. 2012-13 - RS.1,78,248/- 5. THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) FOR ALL THE FIVE YEARS UNDER CONSIDERATION WAS CHALLENGED BY TH E ASSESSEE IN THE APPEALS FILED BEFORE THE LD. CIT(A) AND CONSIDERING THAT TH ERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTIC ES ISSUED BY HIM FIXING THE SAID APPEALS FOR HEARING FROM TIME TO TIME, LD. CIT (A) DISMISSED THE APPEALS OF 4 ITA NOS.2056 TO 2060/DEL/2016 THE ASSESSEE VIDE HIS APPELLATE ORDERS DATED 24.02. 2016 PASSED SEPARATELY FOR ALL THE FIVE YEARS UNDER CONSIDERATION THEREBY CONFIRMI NG THE PENALTIES IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. AG GRIEVED BY THE ORDERS OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THESE APPEAL S BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARILY ISSUE RAISED BY THE ASSESSEE IN THESE APPEALS CHALLENGING THE IMPUGNED ORDERS PASSED BY THE LD. CIT(A) EX-PARTE DISMISSING THE APPEALS OF THE ASSESSEE, LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO PARAGRAPH NO.4 OF THE LD. CIT(A)S IMPUGNED ORDERS, WHICH IS IDENTICAL FOR ALL THE FIV E YEARS UNDER CONSIDERATION, TO POINT OUT THAT THE APPEALS OF THE ASSESSEE WERE FIX ED BY LD. CIT(A) FOR HEARING ON 17.09.2015, 30.12.2015, 15.01.2016 AND 08.02.201 6. HE HAS SUBMITTED THAT THE ASSESSEE SOUGHT ADJOURNMENT ON ALL THESE FOUR O CCASIONS THROUGH HIS AUTHORIZED REPRESENTATIVE, SHRI R.K. GUPTA. HE HAS SUBMITTED THAT THE LD. CIT(A) ACCORDINGLY GRANTED THE ADJOURNMENTS BUT FIN ALLY DISMISSED THE APPEALS OF THE ASSESSEE VIDE HIS IMPUGNED ORDERS PASSED EX-PARTE ON THE GROUND THAT NONE APPEARED ON BEHALF OF THE ASSESSEE ON 12.02.20 16. HE HAS CONTENDED THAT THERE WAS NO FORMAL INTIMATION RECEIVED BY THE ASSE SSEE FOR HEARING FIXED ON 12.02.2016 EVEN THOUGH THE ASSESSEE HAD SOUGHT ADJO URNMENT ON THE SAID DATE. HE HAS ALSO CONTENDED THAT THE FACT THAT THE ASSESS EE HAD EARLIER SOUGHT ADJOURNMENTS REGULARLY THROUGH HIS AUTHORIZED REPRE SENTATIVE ON THE EARLIER 5 ITA NOS.2056 TO 2060/DEL/2016 OCCASIONS WAS SUFFICIENT TO SHOW THAT HE WAS SERIOU SLY INTERESTED IN PROSECUTING HIS APPEALS AND THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEALS OF THE ASSESSEE VIDE HIS IMPUGNED ORDERS PASSED EX-PARTE. HE HAS CONTENDED THAT THE LD. CIT(A) THUS HAS NOT GIVEN PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DISMISSING HIS APPEALS VIDE IMPUGNED ORDERS PASSED EX- PARTE AND THIS POSITION CLEARLY EVIDENT FROM THE IMPUGNED ORDERS OF THE LD. CIT(A) IS NOT DISPUTED EVEN BY THE LD. DR. WE, THE REFORE, CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET-ASIDE THE IMPUGNED ORDERS PASSED BY THE LD. CIT(A) EX-PARTE AND REMIT THE MATTERS BACK TO HIM FOR DISPOSING OF THE APPEALS OF THE ASSESSEE AFRESH ON MERIT AFTER GIVIN G ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIREC TED TO MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND EXTEND ALL THE POSSIBLE O PERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEALS EXPEDITIOUSLY. 7. IN THE RESULT, ALL THE FIVE APPEALS OF THE ASSES SEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF JULY, 2018. SD/- SD/- (SUCHITRA KAMBLE) (P. M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13-07-2018. SUJEET 6 ITA NOS.2056 TO 2060/DEL/2016 COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI