Kushal Kumar Singh, New Delhi V. ITO, New Delhi

ITA 2146/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65433 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 02-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHUMANA SEN
• Assessee Lawyers: KUSHAL KUMAR SINGH
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 69C; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI B .C. MEENA, ACCOUNTANT MEMBER ITA NO.2146/DEL./2011) (ASSESSMENT YEAR : 2007-08) KUSHAL KUMAR SINGH, VS. ITO, WARD 33(3), 50, UPPER ANAND PARBAT, NEW DELHI. NEW DELHI-110005. (PAN/GIR NO.AQWPS1119A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KUSHAL KUMAR SINGH REVENUE BY : MS. SHUMANA SEN, SR.DR ORDER PER U.B.S. BEDI, JM THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)- XXVI, NEW DELHI, DATED 01.07.2011, RELEVANT TO ASSE SSMENT YEAR 2007-08, WHEREBY BESIDES CHALLENGING ACTION OF CIT(A) IN DECIDING TH E APPEAL EX-PARTE WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD, ASSESSEE HAS C HALLENGED THE CONFIRMATION OF INITIATION OF PROCEEDINGS U/S 147 OF THE I.T. ACT, 1961, COMPLETING ASSESSMENT U/S 144 OF THE ACT AND MAKING ADDITIONS OF RS.10,11,500/- AND RS.4,14,644/- U/S 68 AND U/S 69C OF THE ACT, RESPECTIVELY. 2. FACTS INDICATE THAT IN THIS CASE THE ASSESSEE FI LED RETURN OF INCOME ON 11.2.2008 DECLARING INCOME OF RS.139030 AND ASSESSMENT WAS CO MPLETED U/S 144 AT AN INCOME OF RS.1565170 AND ENHANCEMENT OF INCOME WAS ON ACCOUNT OF ADDITION OF RS.10,11,500/-U/S 68 AND ADDITION OF RS.4,14,644/- U/S 69C OF THE ACT . THE ASSESSING OFFICER RECEIVED AIR INFORMATION THAT ASSESSEE MADE CASH DEPOSIT OF RS.1 0,11,500/- IN STANDARD CHARTERED I.T.A. NO.2146/DEL./2011 (A.Y. : 2007-08) 2 BANK, JHANDEWALAN AND HAD PURCHASED A HUNDAI CAR FO R RS.414644 IN FINANCIAL YEAR 2006-07. THE ASSESSING OFFICER ISSUED NUMBER OF NO TICES TO THE ASSESSEE AS HAS BEEN MENTIONED IN THE ASSESSMENT ORDER, BUT THERE WAS NO COMPLIANCE. THEREFORE, THE ASSESSING OFFICER FRAMED ASSESSMENT U/S 144 BY ADDI NG THE CASH DEPOSIT IN THE BANK ACCOUNT AT RS.10,11,500/- U/S 68 AND TREATING THE I NVESTMENT IN CAR AT RS.4,14,644/- AS UNEXPLAINED INVESTMENT. 3. ASSESSEE TOOK UP THE MATTER IN APPEAL AND ON FIR ST NOTICE OF HEARING, THERE WAS NO COMPLIANCE AND ON FURTHER NOTICE ADJOURNMENT WAS SO UGHT ON WHICH DATE, FURTHER ADJOURNMENT WAS SOUGHT AND CASE WAS FINALLY FIXED F OR 01.02.2011, WHEN THERE WAS NO RESPONSE, AT THE TIME OF HEARING OF THE APPEAL. SO , CIT(A) PROCEEDED EX-PARTE AGAINST THE ASSESSEE AND OBSERVED THAT THE ASSESSEE DID NOT FIL E ANY SUBMISSION OR STATEMENT OF FACTS WITHTHE MEMO OF APPEAL. SO, IN THE ABSENCE OF INCOM E, EXPLANATION/SUBMISSION/EVIDENCES IN SUPPORT OF THE APPEAL FILED AND ASSESSEES REPEA TED FAILURE TO SUBSTANTIATE WITH EVIDENCE ON THE GROUNDS OF APPEAL, CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER BY CONFIRMING BOTH THE ADDITIONS MADE. 4. STILL AGGRIEVED, ASSESSEE HAS COME UP IN FURTHER APPEAL AND CHALLENGED THE ACTION OF THE CIT(A) AS WELL AS OF THE ASSESSING OFFICER, IT WAS STRONGLY PLEADED BY ASSESSEE HIMSELF, WHO APPEARED DURING THE HEARING THAT NEITH ER ASSESSING OFFICER HAS GIVEN APPROPRIATE AND ADEQUATE OPPORTUNITY NOR CIT(A), HA S CONSIDERED THE FACT THAT THE ASSESSEE HAS NOT MADE ANY CASH DEPOSIT OR INVESTMEN T IN THE CAR. THEREFORE, ACTION OF THE ASSESSING OFFICER IN INITIATING THE RE-ASSESSMENT P ROCEEDINGS AND MAKING THE ADDITION IS NEITHER JUSTIFIED NOR APPROPRIATE AND CIT(A) HAS JU ST CONFIRMED THE IMPUGNED ADDITIONS WITHOUT APPROPRIATELY DEALING WITH THE APPEAL OF TH E ASSESSEE. THEREFORE, IT WAS I.T.A. NO.2146/DEL./2011 (A.Y. : 2007-08) 3 CONTENDED THAT IN THE INTEREST OF JUSTICE, ORDERS O F AUTHORITIES BELOW SHOULD BE SET ASIDE AND MATTER MAY BE RESTORED TO THE FILE OF THE ASSES SING OFFICER FOR RE-CONSIDERATION OF THE MATTER AFRESH. FURTHER, ASSESSEE UNDERTOOK TO APP EAR BEFORE THE ASSESSING OFFICER TO GET THE ASSESSMENT COMPLETED IN CASE MATTER IS RESTORED BACK ON HIS FILE. 5. LD.DR HAS BEEN HEARD, WHO RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW, BUT DID NOT RAISE ANY SERIOUS OBJECTION IN CASE MATTER IS RESTORED BACK ON THE FILE OF THE ASSESSING OFFICER, IF ASSESSEE UNDERTAKES TO APPEAR BEFORE THE ASSESSING OFFICER IN CASE FRESH CHANCE IS GIVEN TO HIM. 6. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MAT ERIAL ON RECORD AND FIND THAT EX- PARTE ASSESSMENT HAS BEEN FRAMED IN THIS CASE FOR NON-COMPLIANCE OF NOTICES ISSUED TO THE ASSESSEE WHEN ADDITION OF RS.10,11,500/- AND RS.4,1 4,644/- U/S 68 AND U/S 69C OF THE ACT FOR DEPOSIT OF AMOUNT IN THE BANK AND INVESTMENT IN THE MOTOR CAR RESPECTIVELY, HAS BEEN MADE AND CIT(A) HAS JUST CONFIRMED THE ADDITIONS MA DE BY THE ASSESSING OFFICER WITHOUT APPROPRIATELY DISCUSSING OR CONSIDERING THE ADDITIO NS ON MERITS AND NOW ASSESSEE SEEKS ONE CHANCE TO PRESENT HIS CASE BEFORE THE ASSESSING OFFICER FOR FINALIZATION OF THE ASSESSMENT BY GIVING AN UNDERTAKING THAT HE SHALL C OOPERATE IN GETTING FINALIZED THE DE NOVO ASSESSMENT. CONSIDERING THE ENTIRETY OF FACTS , CIRCUMSTANCES AND MATERIAL ON RECORD, WE FIND THAT ASSESSEE HAS BEEN ABLE TO SHOW THAT HIS CASE HAS NOT BEEN DEALT, DISCUSSED OR DECIDED APPROPRIATELY TO MAKE IMPUGNED ADDITION. AS SUCH, IN THE INTEREST OF JUSTICE AND TO HAVE FAIR PLAY IN THE MATTER, WE ARE OF THE VIEW THAT IT WOULD MEET THE ENDS OF JUSTICE IN CASE ORDER OF THE AUTHORITIES BE LOW ARE SET ASIDE AND MATTER IS RESTORED BACK ON THE FILE OF THE ASSESSING OFFICER FOR RECON SIDERATION OF THE APPEAL AFRESH. SO, WE SET ASIDE THE IMPUGNED ORDER OF THE AUTHORITIES BEL OW AND RESTORE THE MATTER BACK ON THE I.T.A. NO.2146/DEL./2011 (A.Y. : 2007-08) 4 FILE OF THE ASSESSING OFFICER WITH THE DIRECTION T HAT ASSESSEE SHALL APPEAR BEFORE THE ASSESSING OFFICER ON 17.12.2012 OR ON ANY SUBSEQUE NT DATE TO BE GIVEN BY THE ASSESSING OFFICER FOR DE NOVO PROCEEDINGS, WHO SHALL MAKE ASS ESSMENT AFTER DUE OPPORTUNITY TO THE ASSESSEE AND PASS FRESH ORDER. 7. AS A RESULT, THE APPEAL OF THE ASSESSEE GETS ACC EPTED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN SOON AFTER THE CONCLUSION OF THE HEARING ON 18.09.2012. SD/- SD/- (B.C. MEENA) (U.B.S. BEDI) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED : SEPT. 18, 2012 SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT, 4.CIT(A)-XXVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR/ITAT