Sh. Naushad Ahmad, New Delhi V. ITO, Bulandshahr

ITA 2290/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97596 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 10-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: TARUN KUMAR; SOMIL AGRAWAL ADVS
• Keywords: Gift; Opportunity of being heard
• Section: 80C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 2290 /DEL/201 5 (ASSESSMENT YEAR - 200 9 - 10 ) NAUSHAD AHMAD, C/O - M/S.RRA TAXINDIA, D - 28, SOUTH EXTENSION, PART - I, NEW DELHI - 110049. PAN - AFGPA3266B ( APPELLANT) VS ITO, WARD - 3, BULANDSHAHAR (RESPONDENT ) APPELLANT BY SH.TARUN KUMAR & SH. SOMIL AGRAWAL, ADVS. RESPONDENT BY DR.B.R.R.KUMAR, SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 16.01.2015 OF CIT(A), GHAZIABAD PERTAINING TO 2009 - 10 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NO.6 WHICH READS AS UNDER: - 6. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD.AO IN MAKING THE IMPUGNED ADDITIONS AND FRAMING THE IMPUGNED ASSESSMENT ORDER WHICH I S CONTRARY TO LAW AND FACTS AND WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF HEARING AND WITHOUT CONFRONTING THE ENTIRE ADVERSE MA TERIAL WHICH WAS USED AGAINST THE ASSESSEE AND BY RECORDING INCORRECT FACTS AND FINDINGS AND IN VIOLATION OF PRINCIPLES OF NATURA L JUSTICE AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUNDS AND WHICH DESERVES TO BE QUASHED. 2. LD.AR INVITING ATTENTION TO THE ABOVE GROUND SUBMITTED THAT IN THE FACTS OF THE PRESENT CASE VARIOUS ADDITIONS HAVE BEEN MADE WITHOUT PROVIDING AN ADEQUATE OPPORTUNITY TO THE ASSESSEE . AS AN ILLUSTRATION, ATTENTION WAS INVITED TO THE ADDITION OF RS.3,50,000/ - MADE IN THE HANDS OF THE ASSESSEE CLAIMED AS A DATE OF HEARING 10 .0 9 .2015 DATE OF PRONOUNCEMENT 28 . 1 0 .2015 I.T.A .NO. - 2290/ DEL/201 5 PAGE 2 OF 3 GIFT WHEREIN THE 5 DONORS WERE REQUIRED TO BE PRESENT BEFORE THE AO ON 26.12.2011. REFERRING TO THE RECORD IT WAS SUBMITTED THAT THE SAID REQUEST WAS COMMUNICATED TO THE ASSESSEE VIDE ORDER SHEET DATED 23. 12.2012 . I N THE SAID BACKGROUND T HE ASSESSMENT ORDER U/S 143(3) WAS PASSED IN HASTE ON 28.12.2011 WITHOUT AFFORDING AN OPPORTUNITY T O THE ASSESSEE . SIMILARLY ON THE OTHER ISSUES ALSO IT WAS SUBMITTED THE ASSESSMENT WAS CONCLUDED IN HASTE A S DETAILS RELATABLE TO THE HOUSING LOAN AMOUNTING TO RS.2,66,466/ - QUESTIONED WERE ALSO REQUIRED TO BE EXPLAINED A T THE LAST STAGE AND ADDITION OF THE SAID AMOUNT WAS MADE AGAIN IN HASTE HOLDING THAT THE ASSESSEE HAS FAILED TO EXPLAIN THIS. SIMILAR WAS POSITION IN REGARD TO THE 80C DEDUCTION CLAIMED BY THE ASSESSEE . IN ALL THE INSTANCES COMMUNICATION WAS MADE TO THE ASSESSEE AT THE LAST STAGE AND W ITHOUT GIVING TIME TO EXPLAIN THE SAME ADDITIONS WERE MADE. THE SAID ISSUE IT WAS SUBMITTED WAS ASSAILED IN APPEAL AND IT HAS NOT BEEN CONSIDERED. IN THESE PECULIAR FACTS AND CIRCUMSTANCES, THE LIMITED PLEA OF THE ASSESSEE WAS THAT THE ISSUE MAY BE RESTO RED IN ORDER TO PROVIDE A REASONABLE OPPORTUNITY TO PLACE NECESSARY FACTS AND EVIDENCES ON RECORD WHICH ADMITTEDLY HAS NOT BEEN M ADE AVAILABLE. 3. THE LD. SR.DR, SH. B.R.R.KUMAR CONSIDERING THE RELEVANT DETAILS AS COMING OUT FROM THE ASSESSMENT ORDER STA TED THAT HE WOULD HAVE NO OBJECTION IF THE ISSUE IS RESTORED. REFERRING TO THE ARGUMENTS ADVANCED WHERE THE ASSESSEE WOULD NEED TO FILE FRESH EVIDENCES , IN THE CIRCUMSTANCES IT WAS HIS PRAYER THAT THE ISSUE SHO ULD GO BACK TO THE AO. 4. HAVING HEARD THE RI VAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE ASSESSEE RETUR NED AN INCOME OF RS. 5,13,699/ - . THE BUSINESS OF THE ASSESSEE IS SHOWN TO BE ZARI WORK ON CONTRACT BASIS . A S A RESULT OF THE ADDITIONS MADE BY THE AO T HE AS SESSMENT WAS CONCLUDED AT AN INCOME OF RS.9,60,013/ - . THE RECORD SHOWS THAT THE ASSESSEE FOR THE FIRST TIME WAS REQUIRED VIDE ORDER SHEET ENTRY DATED 23.11.2011 TO PRODUCED THE DONORS AND ALSO TO MAKE OTHER COMPLIANCES ON 26.11.2011 . BASED ON THE MATERIAL ON RECORD ADDITIONS WERE MADE BY THE ORDER DATED 28.11.2011. THUS IN THE AFORESAID ADMITTED POSITION WHERE ASSESSMENT WAS CONCLUDED IN HASTE . CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES AND THE SUBMISSIONS OF THE PARTIES , T HE IMPUGNED ORDER IS SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE I.T.A .NO. - 2290/ DEL/201 5 PAGE 3 OF 3 FILE O F THE AO WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW BY WAY OF SPEAKING ORDER AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD. 4.1. WHILE SO RESTORING IT IS M A D E C L E A R THAT TH E ASSESSEE WOULD BE AT LIBERTY TO PLACE FRESH EVIDENCES IN SUPPORT OF ITS CLAIM . IT IS TRUSTED THAT THE OPPORTUNITY SO PROVIDED IS GAINFULLY UTILIZED BY MAKING FULL AND PROPER COMPLIANCES AS FA I LING WHICH THE AO WOULD BE AT LIBERTY TO PASS AN ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATER ON RECORD. 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 8 T H OF OCTOBER, 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 2 8 /10 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI