Smt. Preeti Garg, Haridwar V. ITO, Haridwar

ITA 2184/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6482 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 2
• Next Hearing Date: 01-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: PRADEEP GUPTA
• Keywords: Unexplained investment; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 2184/DEL/2015 ASSESSMENT YEAR: 2010-11 SMT. PREETI GARG, VS. ITO, WARD-2, PROP.: M/S GAYTRI PLYWOOD, HARIDWAR 1, KARSHANI ASHRAM, PHOOPATWALA, HARIDWAR 249401 UTTARAKHAND (PAN: ADFPG2291R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PRADEEP GUPTA, CA REVENUE BY : MS. ASHIMA NEB, SR. DR. ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 29.01.2015 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), DEHRADUN RELEVANT TO ASSESSMENT YEAR 201 0-11. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND LAW IN MAKING AN ADDITION OF RS. 1,70,000/- TOWARDS LOANS REPAYMENT AS SUPPRESSED LIABILITY WHILE THE SAME WAS MERELY MISTAKE IN POSTING BY ASSESSEE. 2 2. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND LAW IN MAKING AN ADDITION OF RS. 3,70,000/- TREATING UNSECURED LOANS AS UNEXPLAINED INVESTMENT WITHOUT CONSIDERING THE FACTS OF THE CASE. 3. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND LAW IN MAKING AN ADDITION OF RS. 5,48,000/- TREATING UNSECURED LOANS AS UNEXPLAINED INVESTMENT WITHOUT CONSIDERING THE FACTS OF THE CASE. 4. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND LAW IN MAKING AN ADDITION O RS. 5,00,000 TREATING UNSECURED LOAN AS UNEXPLAINED INVESTMENT WITHOUT CONSIDERING FACTS OF THE CASE. 5. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND LAW IN MAKING AN ADDITION OF RS. 3,00,000/- TREATING UNSECURED LOAN AS UNEXPLAINED INVESTMENT WITHOUT CONSIDERING FACTS OF THE CASE. 6. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND LAW IN MAKING AN ADDITION OF RS. 18,81,000/- AGAINST RS. 17,18,000/- WHILE THE DIFFERENCE 3 AMOUNT OF RS. 1,63,177 WAS ALLOWED IN FIRST APPELLATE ORDER. IT IS THEREFORE PRAYED THAT AN APPEAL BE ACCEPTED AND SUITABLE RELIEF BE ALLOWED. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. DURING THE HEARING, LD. A.R. OF THE ASSESSEE HAS STATED THAT AO WHILE MAKING THE ADDITIONS, WITHOUT CONSIDERING THE FACTS OF THE CASE. HE ALSO STATED THAT AFTER THE RECEIPT OF THE SHOW C AUSE NOTICE ISSUED BY THE AO, A DETAILED RELY WAS FURNISHED WHEREIN OR IGINAL COPY OF AFFIDAVIT OF ALL THE LENDER ALONGWITH BANK STATEMEN T WERE SUBMITTED. THE ASSESSEE HAD JUSTIFIED THE IDENTITY, CAPACITY A ND GENUINENESS OF LOAN TAKEN BY SUBMITTING COPY OF CONFIRMATION, ADDR ESS PROOF DOCUMENTS, BANK STATEMENTS, COPY OF INCOME TAX RETU RN AND AFFIDAVITS WHEREIN THE WHOLE RESPONSIBILITIES FOR A NY PROCEEDINGS INITIATED AGAINST THEM WAS TAKEN BY THEM. THE AO HAS OVERLOOKED THESE DOCUMENTS AND HAS NEITHER CROSS EXAMINED THO SE LENDER NOR HAD ASKED FOR THEIR CASH FLOW STATEMENT AND ADD BAC K ALL SUCH LOANS TO INCOME OF ASSESSEE. THE AO HAS NOT CONSIDERED T HE FACTS THAT THESE LENDERS WERE INCOME TAX ASSESSEE WITHOUT CONS IDERING THE FACTS OF THE CASE. HE FURTHER STATED THAT THERE WAS DIFFE RENCE IN BALANCE OF ONE UNSECURED LOAN WHICH WAS DULY EXPLAINED BY THE ASSESSEE DUE TO 4 MISTAKE IN POSTING IN ACCOUNT OF LENDER INSTEAD OF SUNDRY CREDITORS, WHICH HAS NOT BEEN CONSIDERED BY THE AO AND DIFFERE NCE HAS BEEN ADDED BACK TO INCOME OF THE ASSESSEE. HE FURTHER ST ATED THAT LD. CIT(A) ALSO PASSED THE NON-SPEAKING ORDER DATED 29. 01.2015 WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE FO R SUBSTANTIATING HIS CLAIM BEFORE THE AUTHORITIES BELOW AND WITHOUT CONS IDERING EVIDENCES/ FACTS OF THE CASE. HE HAS REQUESTED THA T ASSESSEE HAS ALL THE NECESSARY EVIDENCES AND CAN PRODUCE BEFORE THE AO, IF THIS BENCH GIVE AN OPPORTUNITY TO THE ASSESSEE FOR PRODU CING ALL THE NECESSARY DOCUMENTS BEFORE THE AO. IN THIS BEHALF H E FILED THE PAPER BOOK CONTAINING PAGES 1 TO 91. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW AND OPPOSED THE REQUEST OF THE AS SESSEES COUNSEL REQUEST. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I HAVE ALSO GONE THROUGH THE ORDER PASSED BY THE REVE NUE AUTHORITIES AS WELL AS THE CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. I FIND FORCE IN THE ARGUMENTS OF THE LD. CO UNSEL OF THE ASSESSEE THAT AFTER THE RECEIPT OF THE SHOW CAUSE N OTICE ISSUED BY THE AO, A DETAILED REPLY WAS FURNISHED WHEREIN ORIGINAL COPY OF AFFIDAVIT OF ALL THE LENDER ALONGWITH BANK STATEMENT WERE SUB MITTED. THE ASSESSEE HAD JUSTIFIED THE IDENTITY, CAPACITY AND G ENUINENESS OF LOAN TAKEN BY SUBMITTING COPY OF CONFIRMATION, ADDRESS P ROOF DOCUMENTS, BANK STATEMENTS, COPY OF INCOME TAX RETURN AND AFFI DAVITS WHEREIN 5 THE WHOLE RESPONSIBILITIES FOR ANY PROCEEDINGS INIT IATED AGAINST THEM WAS TAKEN BY THEM. THE AO HAS OVERLOOKED THESE DOC UMENTS AND HAS NEITHER CROSS EXAMINED THOSE LENDER NOR HAD ASK ED FOR THEIR CASH FLOW STATEMENT AND ADD BACK ALL SUCH LOANS TO INCOM E OF ASSESSEE. THE AO HAS NOT CONSIDERED THE FACTS THAT THESE LEND ERS WERE INCOME TAX ASSESSEE WITHOUT CONSIDERING THE FACTS OF THE C ASE. IT WAS ALSO NOTED THAT THERE WAS DIFFERENCE IN BALANCE OF ONE UNSECURED LOAN WHICH WAS DULY EXPLAINED BY THE ASSESSEE DUE TO MIS TAKE IN POSTING IN ACCOUNT OF LENDER INSTEAD OF SUNDRY CREDITORS, W HICH HAS NOT BEEN CONSIDERED BY THE AO AND DIFFERENCE HAS BEEN ADDED BACK TO INCOME OF THE ASSESSEE AND SIMILARLY, LD. CIT(A) ALSO PASS ED THE NON- SPEAKING IMPUGNED ORDER DATED 29.01.2015 AND BOTH T HE LOWER AUTHORITIES HAVE NOT PROVIDED SUFFICIENT OPPORTUNIT Y TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM. I FURTHER FIND THAT B EFORE THE TRIBUNAL THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING PAGES 1 TO 91 IN WHICH HE HAS ATTACHED THE COPY OF SUBMISSION OF ASSESSEE; COPY OF BALANCE SHEET OF ASSESSEE; COPY OF LEDGER OF MODERN SAREE A ND OTHER CREDITORS; COPY OF DOCUMENTS OF RAJ KUMAR SHARMA; C OPY OF SHOW CAUSE NOTICE OF AO; COPY OF REPLY OF AR AGAINST SHO W CAUSE NOTICE; COPY OF AFFIDAVIT OF RECEIPT BANK OF LOAN BY RAJ KU MAR SHARMA ALONGWITH CHEQUE COPY AND BANK ACCOUNT COPY; COPY O F ITR, COMPUTATION, BALANCE SHEET; AFFIDAVIT BEFORE AO BA NK ACCOUNT OF SMT. DIVYA GARG; COPY OF CERTIFICATE OF SERVICE OF SMT. DIVYA GARG; COPY OF AFFIDAVIT OF RECEIPT BANK OF LOAN BY SMT. D IVYA GARG 6 ALONGWITH CHEQUE COPY AND BANK ACCOUNT COPY; COPY O F VOTER CARD, ITR, COMPUTATION, BALANCE SHEET, AFFIDAVIT BEFORE A O, BANK ACCOUNT OF SH. DEEPAK GOYAL; COPY OF AFFIDAVIT OF RECEIPT B ANK OF LOAN BY SH. DEEPAK GOYAL ALONGWITH CHEQUE COPY AND BANK ACCOUNT COPY; COPY OF VOTER CARD, ITR, COMPUTATION, BALANCE SHEET, AFF IDAVIT BEFORE AO, BANK ACCOUNT OF SMT. GEETA DEVI; COPY OF AFFIDAVIT OF RECEIPT BANK OF LOAN BY SMT. GEETA DEVI ALONGWITH CHEQUE COPY AND BANK ACCOUNT COPY; COPY OF CITATION OF CIT VS. RANCHOD JIVABHAI NAKHAVA 208 TAXMAN 35 (GUJARAT); SAGALCHAND P. ANANDA VS. ACIT (ITA NO. 80/RJT/2013) ITAT- RAJKOT); NEMI CHAND KOTHARI VS. CIT 264 ITR 254 (GUWAHAT); CIT VS. METACHEM INDUSTRIES 245 ITR 160 (MP); GURUKUL TRUST VS. ADIT VS (ITA NO. 723/DEL/2012) IT AT- DELHI; DCIT VS. ROHINI BUILDERS 256 ITR 360 (GUJARAT) AND POWER OF ATTORNEY (IN ORIGINAL), WHICH WERE NOT PROPERLY CONSIDERED BY TH E AUTHORITIES BELOW. I FURTHER FIND THAT LD. CIT(A) HAS ALSO PA SSED THE NON- SPEAKING IMPUGNED ORDER WHICH IS NOT SUSTAINABLE I N THE EYES OF LAW. THEREFORE, IN THE INTEREST OF JUSTICE, THE ISSUES I N DISPUTE ARE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE AFRESH UN DER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FILE ALL THE NECESSARY DOCUMENTS TO SUBSTANTIATE HIS CASE AND FULLY COOPERATE WITH THE AO IN THE PROCEEDINGS AND DID NOT TAKE ANY UNNECESSARY ADJOUR NMENT. 7 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 04-05-2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 04-05-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.