Sh. Ashok kumar, New Delhi V. ITO, New Delhi

ITA 2181/DEL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7184 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 15-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: ABHISHEK ANAND
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 234B; 68; 144

Judgement Text

ITA NO. 2181/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 2181/DEL/2013 A.Y. : 2007-08 SHRI ASHOK KUMAR, C/O. M/S RRA TAXINDIA D-28, SOUTH EXTN., PART-I, NEW DELHI 49 (PAN: AQXPK9095N) VS. INCOME TAX OFFICER, WARD-25(4), NEW DELHI (APPELLANT ) (RESPONDENT ) ASSESSEE BY : SH. SOMIL AGARWAL, AD. & ABHISHEK ANAND, ADV. DEPARTMENT BY : SH. K.K. JAISWAL, DR DATE OF HEARING: 28-01-2016 DATE OF ORDER : 09-02-2016 ORDER PER H.S. SIDHU, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVIII, NEW DEL HI DATED 11.12.2012 PERTAINING TO ASSESSMENT YEAR 2007-08 ON THE FOLLOW ING GROUNDS:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSI NG THE ACTION OF LD. AO IN PASSING AN EX-PARTE ASSESSMENT ORDER U/S 144 OF INCOME TAX ACT, 1961 AND THAT TOO WITHOUT GIVING SHOW CAUS E NOTICE AS PER LAW AND WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEAR ING. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. ITA NO. 2181/DEL/2013 2 AO IN PASSING AN EX-PARTE ASSESSMENT ORDER AND THAT TOO WITHOUT SERVING THE MANDATORY NOTICE U/S 143(2) OF INCOME T AX ACT, 1961. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS.12,33,OOO/- ON ACCOUNT OF CASH DEPOSITED U/S 68 OF INCOME TAX ACT, 1961 THAT TOO W ITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND, EV IDENCES FILED BY THE ASSESSEE. 4. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, IMPUGNED ADDITION AND IMPUGNED ASSESSMENT ORDER ARE BAD IN LAW, ILLEG AL, UNJUSTIFIED, BARRED BY LIMITATION, CONTRARY TO FACTS & LAW AND B ASED UPON RECORDING OF INCORRECT FACTS AND FINDING, WITHOUT G IVING ADEQUATE OPPORTUNITY OF HEARING, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND THE SAME DESERVES TO BE QUASHED. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSI NG THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234B AND 234C OF IN COME TAX ACT, 1961. 6. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODI FY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIE S ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT BEING REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESS EE STATED THAT THE LD. CIT(A) WAS ERRED IN NOT REVERSING THE ACTION OF THE ASSESSING OFFICER IN PASSING AN EX-PARTE ASSESSMENT ORDER U/S. 144 OF THE I.T. A CT, 1961 AND THAT TOO WITHOUT GIVING SHOW CAUSE NOTICE AS PER LAW AND WIT HOUT GIVING ADEQUATE ITA NO. 2181/DEL/2013 3 OPPORTUNITY OF HEARING. HE FURTHER STATED THAT LD. CIT(A) HAS ALSO ERRED IN CONFIRMING THE ACTION OF THE AO IN PASSING AN EXPAR TE ASSESSMENT ORDER AND THAT TOO WITHOUT SERVING THE MANDATORY NOTICE U/S. 143(2) OF THE I.T. ACT, 1961. HE FURTHER STATED THAT THE LD. CIT(A) HAS AGAIN ERR ED IN CONFIRMING THE ACTION OF THE AO IN MAKING THE ADDITION OF RS. 12,33,000/- ON ACCOUNT OF CASH DEPOSITED U/S. 68 OF THE I.T. ACT, 1961 THAT TOO WITHOUT CONS IDERING THE SUBMISSIONS OF THE ASSESSEE AND EVIDENCES FILED BY THE ASSESSEE. I N VIEW OF THE ABOVE, HE REQUESTED THAT THE ISSUE IN DISPUTE MAY BE SET ASI DE TO THE FILE OF THE AO FOR FRESH CONSIDERATION WITH THE DIRECTIONS TO GIVE FU LL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND CONSIDER THE SUBMISSION AND THE EVIDENCES FILED BY THE ASSESSEE AND DECIDE THE ISSUE IN DISPUTE AFRESH. 4. ON THE CONTRARY, LD. DR OPPOSED THE AFORESAID R EQUEST OF THE LD. COUNSEL OF THE ASSESSEE. HE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND REQUESTED THAT THE SAME MAY BE UPHELD. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US. WE FIND THAT LD. CIT(A) HAS ADJ UDICATED THE ISSUE AS UNDER:- 4.2 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORD ER, SUBMISSIONS, REMAND REPORT, AND REJOINDER THEREOF. THE FACTS OF THE CASE AS PER ASSESSMENT ORDER ARE THAT INFORM ATION WAS RECEIVED THROUGH AIR THAT THE ASSESSEE HAD DEPOSITE D CASH AMOUNT OF RS. 12,33,000/- IN HIS ACCOUNT WITH CORPO RATION BANK, MUNDKA, NEW DELHI. THE AO ISSUED VARIOUS NOTI CES AND ALSO SERVED THE NOTICE THROUGH AFFIXTURE ON THE LA ST KNOWN ADDRESS OF THE ASSESSEE. NOTICES WERE ALSO SENT TO THE NEW ADDRESS OF THE ASSESEE BUT THE SAME ALSO REMAINED UNCOMPLIED WITH. NO COMPLIANCE WAS THERE EVEN TO PENALTY NOTICE ISSUED UNDER SECTION 271(1)(B). THE AO THE N PER FORCE FRAMED ASSESSMENT UNDER SECTION 144 BY MAKING ADDIT ION OF RS. 12,33,000/-I.E. THE CASH DEPOSITED IN THE BANK ACCOUNT. ITA NO. 2181/DEL/2013 4 DURING APPELLATE PROCEEDINGS, THE APPELLANT MOVED A N APPLICATION UNDER RULE 46A AND FILED ADDITIONAL EVI DENCE I.E. AN AFFIDAVIT, AS PER WHICH THE INCOME TAX RETURN WA S FILED AT THE ADDRESS OF THE BANK. LATER THE NOTICES WERE REC EIVED BUT THE COUNSEL DID NOT ATTEND THE INCOME TAX PROCEEDIN GS. ALONG WITH THE AFFIDAVIT, THE APPELLANT FILED A COPY OF T HE BANK ACCOUNT AND A COPY OF CASH ACCOUNT ALONG WITH BALAN CE SHEET AND PROFIT AND LOSS ACCOUNT. THESE DOCUMENTS WERE S ENT TO THE AO, WHO IN HIS REMAND REPORT SUBMITTED THAT APP ELLANT WAS NOT ENTITLED TO FILE ADDITIONAL EVIDENCE UNDER RULE 46A AS THERE WAS NO SUFFICIENT CAUSE WHICH PREVENTED HIM FROM PRODUCING THE EVIDENCE. IN HIS REJOINDER TO THE RE MAND REPORT, THE APPELLANT CLAIMED THAT HE HAD WITHDRAWN CASH OF RS. 20,66,000/- FROM HIS BANK ACCOUNT AND HAD ONLY DEPO SITED RS. 12,33,000/-, THEREFORE, NO ADDITION WAS CALLED FOR. THE APPELLANT FURTHER CLAIMED THAT HE HAD RECEIVED UNSE CURED LOAN IN HIS INDIVIDUAL CAPACITY FROM HIS BROTHER VINDESH WAR SAW AND COUSIN BROTHER SHRI JAGDISH SAW, WHO BY OCCUPA TION ARE FARMERS. THE CLAIM OF THE APPELLANT MADE VIDE DIFFERENT LETT ERS IS CLEARLY CONTRADICTORY. THE APPELLANT HAD CLAIMED IN HIS EA RLIER LETTER, WHILE MOVING APPLICATION UNDER RULE 46A, THAT THE B ANK ACCOUNT REFLECTED ENTRIES ON ACCOUNT OF BUSINESS TR ANSACTIONS AND CASH DEPOSITED AND WITHDRAWN WERE ON ACCOUNT OF PAYMENT FROM AND TO SUPPLIERS. HOWEVER, WHILE FIL ING REPLY TO THE REMAND REPORT, THE APPELLANT HAS TAKEN A DIFFER ENT STAND AND HAS CLAIMED THAT HE HAD RECEIVED UNSECURED LOAN FROM HIS BROTHER AND COUSIN, WHO ARE AGRICULTURISTS AND THER EFORE, LOAN HAS BEEN RECEIVED IN CASH. THESE FACTS SHOW THAT T HE CLAIM OF THE APPELLANT ABOUT THE SOURCE OF CASH DEPOSITED IN HIS BANK ITA NO. 2181/DEL/2013 5 ACCOUNT IS ENTIRELY A COOKED UP STORY AND NOT BASED UPON ANY IRREFUTABLE EVIDENCE. THE CLAIM OF THE APPELLANT TH EREFORE, CANNOT BE ACCEPTED. THE SAME HAS RIGHTLY BEEN TREAT ED AS UNDISCLOSED INCOME BY THE ASSESSING OFFICER. THE AD DITION IS, THUS, CONFIRMED. IN THE RESULT, THE APPEAL OF THE APPELLANT IS DISMI SSED. 5.1 AFTER GOING THROUGH THE ASSESSMENT ORDER, FIND ING OF THE LD. CIT(A) AS AFORESAID, GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN HIS APPEAL BEFORE US, WE ARE OF THE VIEW THAT ASSESSEE HAS THROUGHOUT MADE THE CONTENTION THAT AO HAS PASSED AN EX-PARTE ASSESSMENT ORDER U/S. 144 OF THE INCOME TAX ACT, 1961 AND THAT TOO WITHOUT GIVING SHOW CAUSE NOTICE AS PE R LAW AND WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING. IT WAS ALSO THE C ONTENTION OF THE ASSESSEE THAT AO HAS MADE THE ADDITION IN DISPUTE THAT TOO WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND EVIDENCES FILED BY THE ASSESSEE. WE ALSO FIND THAT ASSESSEE BEFORE THE LD. CIT(A) HAS FILED AN A PPLICATION UNDER RULE 46A AND FILED ADDITIONAL EVIDENCE I.E. AN AFFIDAVIT, AS PER WHICH THE INCOME TAX RETURN WAS FILED AT THE ADDRESS OF THE BANK. LATER THE NOTICES WERE RECEIVED BUT THE COUNSEL DID NOT ATTEND THE INCOME TAX PROCEEDIN GS. ALONG WITH THE AFFIDAVIT, THE ASSESSEE FILED A COPY OF THE BANK AC COUNT AND A COPY OF CASH ACCOUNT ALONG WITH BALANCE SHEET AND PROFIT AND LOS S ACCOUNT. THESE DOCUMENTS WERE SENT TO THE AO, WHO IN HIS REMAND RE PORT SUBMITTED THAT ASSESSEE WAS NOT ENTITLED TO FILE ADDITIONAL EVIDEN CE UNDER RULE 46A AS THERE WAS NO SUFFICIENT CAUSE WHICH PREVENTED HIM FROM P RODUCING THE EVIDENCE. 5.2 FROM THE READING OF THE FINDING OF THE LD. CIT( A), AS AFORESAID, IT HAS BEEN OBSERVED THAT LD. CIT(A) HAS NEITHER ACCEPTED THE ADDITIONAL EVIDENCES NOR REJECTED THE SAME AND NOT ACCEPTED THE CLAIM OF THE ASSESSEE AND UPHELD THE ADDITION MADE BY THE AO, WHICH IS NOT SUSTAINAB LE IN THE EYES OF LAW. 6. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS A ND IN THE INTEREST OF NATURAL JUSTICE, THE ISSUE IN DISPUTE IS SET ASIDE TO THE FILE OF THE AO TO DECIDE ITA NO. 2181/DEL/2013 6 THE SAME AFRESH, UNDER THE LAW, AFTER GIVING FULL O PPORTUNITY TO THE ASSESSEE OF BEING HEARD. THE AO IS ALSO DIRECTED TO CONSIDER THE SUBMISSIONS AND EVIDENCES, IF ANY, TO BE SUBMITTED BY THE ASSESSEE, AFRESH AND DECIDE THE ISSUE IN DISPUTE IN ACCORDANCE WITH LAW. HOWEVER, T HE ASSESSEE IS ALSO DIRECTED TO PRODUCE ALL THE SUBMISSIONS AND EVIDENCES TO T HE AO, SO THAT HE MAY CONSIDER THE SAME, AS PER RULES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09/2/2016. SD/- SD/- [J.S. REDDY] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 09-02-2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR