Shri Pawan Ojha, Uttar Pradesh V. ITO WARD 2(4), Noida

ITA 2095/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8593 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 11-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SANDEEP SAPRA ADSV
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice; Corroborative evidences
• Section: 142(1); 147; 148; 144

Judgement Text

1 ITA NO. 2095/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO. 2095/DEL/2019 ( A.Y 2010-11) (THROUGH VIDEO CONFERENCING) SHRI PAWAN OJHA (UTTAR PRADESH) C/O. SANDEEP SAPRA, ADV, C- 763, NEW FRIENDS COLONY, NEW DELHI AAIP02946B (APPELLANT) VS ITO WARD-2(4) NOIDA UTTAR PRADESH (RESPONDENT) APPELLANT BY SH. SANDEEP SAPRA, ADSV RESPONDENT BY SH. AJAY KUMAR, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 28/09/2018 PASSED BY CIT(A)-1 , SECTOR-24, NOIDA FOR ASSESSMENT YEAR 2010-11. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN PASSING AN EX- PARTE ORDER WITHOUT AFFORDING PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE APPELLANT THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. DATE OF HEARING 11.01.2021 DATE OF PRONOUNCEMENT 11.01.2021 2 ITA NO. 2095/DEL/2019 2. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT ADMITTING THE APPEAL U/S 249(1 )(A) OF I.T. ACT AS ACCORDING TO HIM COPY OF DEMAND NOTICE AND APPEAL FILING FEE CHALLAN IS NOT AVAILABLE ON RECORD. 3. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT ADMITTING THE APPEAL U/S 249(4)(B) OF I.T. ACT AS ACCORDING TO HIM NO RETURN HAD BEEN FILED BY THE APPELLANT. 4. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT ADJUDICATING UPON THE LEGAL GROUND AS RAISED BEFORE THE LD. CIT(A) I.E. THAT NO NOTICE U/S 148 HAD BEEN SERVED ON THE APPELLANT AND THAT THE INITIATION OF PROCEEDINGS U/S 147/148 IS BAD IN LAW. 5. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NO ADJUDICATING UPON THE GROUND AS RAISED ON MERITS I.E. ADDITION OF RS.55,00,000 ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE IN PURCHASE OF IMMOVABLE PROPERTY OUT OF APPELLANTS UNDISCLOSED INCOME. 3. IN THIS CASE, AIR INFORMATION WAS RECEIVED THAT THE ASSESSEE PURCHASED IMMOVABLE PROPERTY OF RS. 55 LACS, DURING FINANCIAL YEAR 2009-10 RELEVANT TO THE ASSESSMENT YEAR 2010-11. PROCEEDINGS U/S 147 OF THE ACT WAS INITIATED AND WITH THE PRIOR APPROVAL OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, NODIA. NOTICE U/S 148 OF THE ACT DATED 22/3/2017 WAS ISSUED TO THE ASSESSEE WHICH WAS DULY SERVED UPON THE ASSESSEE. THEREAFTER, NOTICE UNDER SECTION 142(1) OF THE INCOME TAX ACT, 1961 DATED 03/08/2017 WAS ISSUED FOR COMPLIANCE ON 16.08.2017. AGAIN, NOTICE UNDER SECTION 142(1) ALONG WITH QUESTIONNAIRE OF THE INCOME TAX ACT, 1961 DATED 18.08.2017 WAS ISSUED TO THE ASSESSEE AND ASKED TO EXPLAIN ABOUT 3 ITA NO. 2095/DEL/2019 THE NATURE AND SOURCE THEREOF. THE DATE FOR COMPLIANCE WAS FIXED ON 29.08.2017. SHOW CAUSE NOTICE U/S 144 WAS ISSUED ON 4/12/2017 FIXING THE DATE OF HEARING ON 11/12/2017. A NOTICE U/S 142(1) DATED 03.08.2017 HAD BEEN ISSUED TO THE ASSESSEE, WHICH WAS SERVED UPON THE ASSESSEE THROUGH REGISTERED SPEED POST BY FIXING THE DATE FOR COMPLIANCE ON 16/08/2017. NO COMPLIANCE WAS MADE. ANOTHER NOTICE U/S 142 (1) ALONG WITH QUESTIONNAIRE WAS ISSUED ON 16/08/2017 FIXING THE DATE FOR COMPLIANCE ON 29/8/2017WHICH WAS PERSONALLY RECEIVED BY THE ASSESSEE AS PER THE OBSERVATIONS OF THE ASSESSING OFFICER BUT NO COMPLIANCE WAS MADE BY THE ASSESSEE. THE ASSESSEE DID NOT FURNISH REPLY OF THE QUESTIONNAIRE DATED 18.08.2017 AND NOTICE U/S 142(1) DATED 03.08.2017. PRIOR TO PROCEEDING FURTHER, A FINAL OPPORTUNITY WAS PROVIDED TO FURNISH THE REPLY TO THE POINTS SPECIFIED ABOVE ALONG-WITH SUPPORTING EVIDENCES BY 11/12/2017 AND TO SHOW CAUSE AS TO WHY THE CASE MAY NOT BE COMPLETED BY FRAMING BEST JUDGMENT ASSESSMENT U/S 144 OF THE INCOME TAX ACT, 196L. THUS, ON 12/12/2017 THE FINAL ASSESSMENT WAS PASSED BY THE ASSESSING OFFICER U/S 144/147 OF THE ACT THEREBY, MAKING ADDITION OF RS. 55 LACS TREATING THE SAID INVESTMENT MADE FROM UNDISCLOSED SOURCES. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE APPEAL WAS FILED ONLINE. THE CIT(A) PASSED AN EX-PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE. 4 ITA NO. 2095/DEL/2019 5. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAS NOT GIVEN PROPER OPPORTUNITY TO THE ASSESSEE TO PLEAD THE CASE OF THE ASSESSEE BEFORE THE REVENUE AUTHORITIES. THEREFORE, THE LD. AR SUBMITTED THAT THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY THE ASSESSING OFFICER AND THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. 6. THE LD. DR RELIED UPON THE ASSESSING OFFICER AND THE CIT(A), BUT SUBMITTED THAT BOTH THESE ORDERS WERE EX-PARTE. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS GIVEN THE REPRESENTATION BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A) THEREBY ASKING FOR ADEQUATE TIME FOR PREPARING THE DOCUMENTS AND THE CASE. BUT BOTH THE REVENUE AUTHORITIES FAILED TO GIVE SUFFICIENT TIME TO THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, IT WILL BE APPROPRIATE TO REMAND BACK THIS MATTER TO THE FILE OF THE ASSESSING OFFICER FOR PROPER ADJUDICATION OF THE ISSUE BY GIVING AMPLE OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DUTY BOUND TO PRESENT HIS CASE WITHIN THE TIME FRAME AND SHOULD NOT DELAY THE PROCEEDINGS. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN PROPER OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. HENCE, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 5 ITA NO. 2095/DEL/2019 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT IN PRESENCE OF BOTH THE PARTIES ON THIS 11 TH DAY OF JANUARY, 2021. SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11/01/2021. R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 6 ITA NO. 2095/DEL/2019 DATE OF DICTATION 1 1 .01.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 1 1 .01.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 11.01.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 11.01.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 11.01.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 11.01.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 11.01.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11.01.2021 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER