Sh. Vinod Kumar, Rohtak V. ITO, Rohtak

ITA 2074/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3635 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 26-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH H DELHI ] BEFORE SHRI A. D. JAIN, JM AND SHRI SHAMIM YAHYA, AM I. T. APPEAL NO. 2074 (DEL) OF 2011 ASSESSMENT YEAR : 2007-08. THE INCOME-TAX OFFICER, SHRI VINOD KUMAR, W A R D : 1, VS. HOUSE NO. 1193, SECTOR : 1, R O H T A K. R O H T A K [HARYANA]. P A N / G I R NO. AAQ PA2697 D. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI VINOD KUMAR [ASSESSEE]; DEPARTMENT BY : MS. MONA MOHANTY, SR. D. R. ; O R D E R. PER SHAMIM YAHYA, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT (APPEALS) DATED 8 TH FEBRUARY, 2011 AND PERTAINS TO ASSESSMENT YEAR 2007 -08. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE, RE AD AS UNDER :- 1. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN CALCULATING AND CONFIRMING TURNOVER OF RS.35.34.508 /- OF PROPERTY DEALING BUSINESS; 2. THAT THE LD. AO HAS ERRED IN LAW AS WELL AS ON FACTS IN APPLYING PROFIT RATE AT 20 PER CENT WITHOUT ANY BASIS OR MATERIAL. THE LD. CIT (A) HAS ALSO ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING THE SAID RATE OF PROFIT; 2 I. T. APPEAL NO. 2074 (DEL) OF 2011 3. THAT THE LD. AO AS WELL AS CIT (A) HAVE A LSO ERRED IN LAW AS WELL AS ON FACTS IN NOT MAKING ADJUSTMENT OF INCOME ALREADY DECLARED BY THE APPELLANT AT RS.1,15,800/- ON ACCOUNT OF COMMISSION INCOME FR OM PROPERTY DEALING BUSINESS; 4. THAT THE APPELLANT HAD PRODUCED HIS ROUGH RECORDS FOR COMPUTING INCOME AT THE TIME OF ASSESSMENT AND NO PROPER BOOKS OF AC COUNTS HAD BEEN MAINTAINED. HOWEVER, THE APPELLANT HAS NOW PREPARED PROPER BOOK S OF ACCOUNTS AND THE AO MAY KINDLY BE DIRECTED TO MAKE FRESH ASSESSMENT ON THE BASIS OF BOOKS OF ACCOUNTS; 3.1 IN THIS CASE DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE APPELLANT WAS MAINTAINING 14 BANK ACCOUNTS IN VARIO US BANKS WHICH ARE IN THE NATURE OF SAVINGS, CURRENT ACCOUNT, OVER DRAFT ETC. THE AO NOTED THAT THE AGGREGATE OF CREDIT ENTRIES IN ALL THESE BANK ACCOUNTS IS RS.1,03,99,129/- AND THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCES OF EACH CREDIT ENTRY IN THESE BANK ACCOUNTS. AFTER DUE VER IFICATION, THE AO ACCEPTED CREDIT ENTRIES AMOUNTING TO RS.62,96,174/- AS NOTED IN PARA 3.1 OF THE ASSESSMENT ORDER. REGARDING THE BALANCE AMOUNT OF RS.41,02,955/- THE AO DID NOT ACCEPT THE CONTENTION OF THE APPELLANT THAT CASH WITHDRAWALS FROM ONE BANK WERE DEPOSITED IN ANOTHER BANK ACCOUNT OR CASH WITHDRAWN ON A DATE WAS SUBSEQUENTLY DEPOSITED IN THE SAME BANK AC COUNT OR ANOTHER BANK ACCOUNT ON THE GROUND THAT NO DOCUMENTARY EVIDENCE OR MATERIAL IN SUPPORT OF THE CONTENTIONS HAVE BEEN FURNISHED BY THE ASSESSEE. 3.2 FROM THE FACTS OF THE CASE I.E. COMMISSION FROM PROPERTY DEALING, DECLARED BUSINESS OF CIVIL CONTRACTOR, LARGE TRANSACTIONS IN THE BANK AC COUNTS ETC., THE AO CONCLUDED THAT THE ASSESSEE HAS BEEN DOING SOME OTHER BUSINESS / COMMERCIAL ACT IVITY WHICH RESULTED IN A TURNOVER OF RS.41,02,955/- AND ESTIMATED THE INCOME FROM THIS U NDISCLOSED TURNOVER AT 20 PER CENT AND BROUGHT TO TAX RS.8,20,591/-. 4. UPON ASSESSEES APPEAL THE LD. CIT (APPEALS), IN TER ALIA, NOTED THAT NO BOOKS OF ACCOUNTS ARE MAINTAINED BY THE ASSESSEE AND HE PROC EEDED TO AFFIRM THE ACTION OF THE ASSESSING OFFICER. 3 I. T. APPEAL NO. 2074 (DEL) OF 2011 5. AGAINST THIS ORDER THE ASSESSEE IS IN APPEAL BEF ORE US. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE REQUESTED THAT EARLIER THE ASSESSEE HAD NOT MAINTAINED PROPER BOOKS OF ACCOUNTS, BUT NOW THE ASSESSEE HAS PREPARED BOOKS O F ACCOUNTS AND AN OPPORTUNITY MAY BE GIVEN TO SUBMIT THE SAME BEFORE THE ASSESSING OFFIC ER. THE LD. SR. DR DID NOT HAVE ANY SERIOUS OBJECTION TO THIS PROPOSITION. ACCORDINGLY , IN THE INTEREST OF JUSTICE, WE REMIT THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER TH E ISSUES AFRESH. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY TO BE HEARD. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE ASSESSING OFFICER. 6. IN THE RESULT, THIS APPEAL BY THE ASSESSEE STAND S ALLOWED, FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 23 RD JUNE, 2011. SD/- SD/- [ A. D. JAIN ] [ SHAMIM YAHYA ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23 RD JUNE, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT. 4 I. T. APPEAL NO. 2074 (DEL) OF 2011