Devendra Kuimar Mavi, New Delhi V. ITO Ward-1(2), New Delhi

ITA 2210/DEL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5216 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: MILIND GARG
• Keywords: Opportunity of being heard; Peak credit; Condonation of delay
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: SMC , NEW DELHI BEFORE SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 2209 & 2210 /DEL/201 9 AY: 20 08 - 09 & 2009 - 10 S H. DEVENDRA KUMAR MAVI C/O PRAKASH LEGA ADVISOR UG 82, WTC BARAKHAMBA ROAD NEW DELHI 110 001 PAN: BLRPK7642B VS . ITO, WARD 1(2) NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : : SH. PANKAJ GARG, ADV. & SH. MILIND GARG, ADV. DEPARTMENT BY : SH. S.L.ANURAGI, SR.D.R. DATE OF HEARING : 2 3/0 5 /2019 DATE OF PRONOUNCEMENT : 24 /0 5 /2019 ORDER T H ESE TWO APPEAL S HAS BEEN FILED BY ASSESSEE AGAINST THE SEPARATE ORDERS OF LD.CIT(A) DATED 22.02.2018 AND 12.3.2018 RESPECTIVELY PERTAINING TO A .YS 2008 - 09 AND 2009 - 10. 2. THE APPEALS INVOLVE SIMILAR ISSUES AND WERE HEARD TOGETHER , T HEREFORE, FOR THE SAKE OF CONVENIENCE, A COMMON AND CONSOLIDATED ORDER IS BEING PASSED. 3. AT THE OUTSET THE LD.AR INVITED OUR ATTENTION TO THE FACT THAT THERE WAS A DELAY IN FILING THE APPEALS OF 289 DAYS WHICH HAD OCCURRED DUE TO THE FACT THAT THE NOTICES WERE ISSUED TO THE ITA NOS. 2209 & 2210/DEL/2019 AYS:2008 - 09 & 2009 - 10 SH. DEVENDRA KUMAR MAVI, N.DEL. S.A.NOS. 321 & 322/DEL/19 2 ASS ESSEE AT HIS ADDRESS IN VILLAGE, WHERE AS HE HAS BEEN FILING THE RETURNS OF INCOME IN DELHI. IT WAS SUBMITTED THAT THE ASSESSEE HAS FILED DULY SIGNED AND NOTARISED AFFIDAVIT AND APPLICATION FOR CONDONATION OF DELAY AND MY ATTENTION WAS INVITED TO THE CO NTENTS OF THE APPLICATION AND THE AFFIDAVIT , THEREFORE IT WAS PRAYED THAT THE DELAY MAY BE CONDONED AND THE ASSESSEE BE HEARD ON MERITS. 4. THE LD.SR.D.R. OBJECTED TO THE CONDONATION OF DELAY APPLICATION AND SUBMITTED THAT THE NOTICES WERE CORRECTLY ISSU ED AT THE ADDRESS MENTIONED IN PAN. HOWEVER, I FIND THAT THE LD.CIT(A) ISSUED NOTICES TO THE ADDRESS IN THE VILLAGE OF THE ASSESSEE, FALLING UNDER THE JURISDICTION OF GHAZIABAD WHEREAS THE ASSESSEE HAS BEEN CONTINUOUSLY FILING HIS RETURNS OF INCOME AT H IS ADDRESS IN DELHI. THEREFORE, I DEEM IT APPROPRIATE TO CONDONE THE DELAY AND LD.COUNSEL WAS ASKED TO PROCEED WITH HIS ARGUMENTS ON MERITS. 5. THE LD.AR STATED THAT THE ASSESSEE HAS TAKEN LEGAL ISSUES WHEREIN HE HAD CHALLENGED THE REOPENING OF THE CASE S U/S 148 BUT HE IS WITHDRAWING THE SAME AND WILL NOT BE PRESSING THE SAME FOR ADJUDICATION. 5.1. AS REGARDS THE MERITS OF THE CASE THE LD.COUNSEL SUBMITTED THAT A.O. HAS MADE THE ADDITIONS ON THE BASIS OF BANK DEPOSITS AND HAS IGNORED THE WITHDRAWALS MAD E BY ASSESSEE DURING THE SAME PERIOD. IT WAS ARGUED THAT THE A.O. SHOULD HAVE ALLOWED BENEFIT OF PEAK CREDIT OR SHOULD HAVE ALLOWED THE WITHDRAWALS FROM THE BANK FOR CONSIDERING THE SAME AS EXPLAINED SOURCES FOR DEPOSITS O N THE SUBSEQUENT DATES. I FIND FORCE IN THE ARGUMENT OF LD.AR THAT THE A.O. SHOULD HAVE CONSIDERED THE WITHDRAW A LS FROM THE BANK FOR ITA NOS. 2209 & 2210/DEL/2019 AYS:2008 - 09 & 2009 - 10 SH. DEVENDRA KUMAR MAVI, N.DEL. S.A.NOS. 321 & 322/DEL/19 3 CONSIDERING THE DEPOSITS ON THE SUBSEQUENT DATES. THEREFORE I REMIT THE CASES BACK TO A.O. TO RE - CALCULATE THE ADDITION IF ANY, AFTER TAKING INTO ACCO UNT THE WITHDRAWALS FROM THE RESPECTIVE BANK ACCOUNTS. NEEDLESS TO SAY THAT ASSESSEE WILL BE AFFORDED SUFFICIENT OPPORTUNITY OF BEING HEARD. 7. IN VIEW OF THE ABOVE, THE APPEALS FILED BY ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT. SD/ - (T.S.KAPOOR) ACCOUNTANT MEMBER DATED: 2 4 TH MAY, 2019. * GMV COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NOS. 2209 & 2210/DEL/2019 AYS:2008 - 09 & 2009 - 10 SH. DEVENDRA KUMAR MAVI, N.DEL. S.A.NOS. 321 & 322/DEL/19 4 DATE DRAFT DICTATED 23.05.19 DRAFT PLACED BEFORE AUTHOR 23.05.19 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON & ORDER UPLOADED ON : 23.05.19 FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.