Manish Pengoriya, Noida V. ITO ward-2(2), Noida

ITA 2513/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0719 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 22-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Accommodation entries; TDS; Set aside; Bogus
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: SMC-1 NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.2513/DEL/2019 ASSESSMENT YEAR: 2015-16 SH. MANISH PENGORIYA, A-3-607, TOWER-4, SILVER CITY, SECTOR-93, NOIDA. VS. ITO, WARD-2(2), NOIDA PAN :AIOPP5974E (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORD ER DATED 29/09/2018 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS)-I, NOIDA [IN SHORT THE LEARNED CIT(A)] FOR ASSESSMENT YEAR 2015-16 RAISING FOLLOWING GROUNDS: 1. THAT LD. CIT (APPEALS)-I, NOIDA HAS PASSED THE ORDER U/S 250 WITHOUT PROVIDING PROPER OPPORTUNITY OF BEING HEARD WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS APPELLA NT DID NOT RECEIVE ANY NOTICE FOR DATE OF HEARING AT HIS GIVEN ADDRESS . FURTHER, APPELLANT SPECIFICALLY OPTED TO RECEIVE THE NOTICE OVER EMAIL ID IN APPELLANT BY SH. PRATAP GUPTA, CA RESPONDENT BY SH. R.K. GUPTA, SR.DR DATE OF HEARING 30.06.2021 DATE OF PRONOUNCEMENT 09.07.2021 2 ITA NO.2513/DEL/2019 FORM 35 FOR HEARING HOWEVER, NO SUCH NOTICE HAS BEE N RECEIVED ON EMAIL ID EITHER BECAUSE OF WHICH APPELLANT WAS REST RICTED BY SUFFICIENT CAUSE TO REPRESENT HIS CASE, HENCE ORDER PASSED BY LD. CIT (APPEAL) IS LIABLE TO BE QUASHED. 2. LD. AO HAS ERRED IN PASSING THE ASSESSMENT ORDE R WITHOUT REFERRING AND PROVIDING THE STATEMENT OF BROKERS WH O HAS CONFESSED THAT THE SCRIPS OF M/S HPC BIOSCIENCE LI MITED HAS BEEN UTILIZED AS A TOOL TO PROVIDE THE ACCOMMODATIO N ENTRIES AND WHETHER THE APPELLANTS NAME WAS PRESENT IN THE SAM E OR NOT. IN ABSENCE OF SUCH VITAL VERIFICATION, THE ASSESSMENT MADE IS ABSOLUTE BAD-IN-LAW AND DEVOID OF MERITS, HENCE LIA BLE TO BE QUASHED. 3. LD. AO HAS ERRED IN LAW WHILE MAKING THE ADDITI ON WITHOUT GIVING REASONS FOR REJECTING THE SUBMISSIONS AND DOCUMENTA RY EVIDENCES OF THE APPELLANT AND WITHOUT PASSING THE SPEAKING O RDER AS PER THE REQUIREMENT OF LAW, HENCE THE ASSESSMENT MADE I S AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THE ASSESSMENT ORDER IS ILLEGAL AND UNLAWFUL. 4. LD. AO HAS ERRED IN LAW WHILE MAKING THE ADDITI ON WITHOUT HAVING ANY INCRIMINATING MATERIAL / EVIDENCE IN HAND WHICH FORM BASIS THAT APPELLANT HAS TAKEN ACCOMMODATION ENTRIES AND THE TRANSACTION OF LONG TERM CAPITAL GAIN IS BOGUS. WIT HOUT HAVING ANY SUCH INFORMATION AND ADDITION MADE MERELY ON PR ESUMPTIONS AND SUMMARISES IS BAD IN LAW AND IS LIABLE TO BE QU ASHED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, LD. AO ERRED IN COMPLETING THE ASSESSMENT ON THE BA SIS OF SATISFACTION BORROWED ONLY FROM REPORT OF INVESTIGA TION WING WITH PRE-CONCEIVE MIND WHICH IS BAD-IN-LAW AND THEREFORE ADDITION MADE IS LIABLE TO BE DELETED. 6. THAT THE APPELLANT CRAVES TO LEAVE TO ADD / ALT ER ANY / ALL GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE A PPEAL. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT RETURN O F INCOME FILED BY THE ASSESSEE ON 31/08/2015 FOR THE YEAR UNDER CO NSIDERATION DECLARING INCOME OF 9,96,640/- WAS SELECTED FOR SCRUTINY ASSESSMENT. THE SCRUTINY ASSESSMENT UNDER SECTION 1 43(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) WAS COMPL ETED ON 26/12/2017 AFTER MAKING ADDITION OF 21,02,194/- TO THE RETURNED INCOME. THE ASSESSEE PREFERRED APPEAL BEFO RE THE LEARNED CIT(A), HOWEVER, THE APPEAL OF THE ASSESSEE WAS NOT ADMITTED BY THE LEARNED CIT(A) ON THE GROUND THAT N O EVIDENCE OF 3 ITA NO.2513/DEL/2019 PAYMENT OF CHALLAN FOR APPEAL FEE AND OTHER DOCUMEN TS WERE FILED BEFORE HIM. AGGRIEVED WITH THE IMPUGNED ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL RAISING THE GROUNDS AS R EPRODUCED ABOVE. 3. BOTH THE PARTIES APPEARED BEFORE US THROUGH VIDEO CONFERENCING FACILITY AND FILED DOCUMENTS ELECTRONI CALLY. 4. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT CHALLAN FOR FEE U/S 249(1)(A) OF THE ACT WAS DULY FILED BEF ORE THE LEARNED CIT(A) ALONG WITH THE IMPUGNED PENALTY ORDER AND CO PY OF DEMAND NOTICE, HOWEVER, HE HAS IGNORED THE SAME AND REJECTED THE APPEAL OF THE ASSESSEE. HE HAS DRAWN OUR ATTENT ION TO THE COPY OF CHALLAN OF FEE FILED BEFORE US AND SUBMITTE D THAT MATTER MAY BE RESTORED BACK TO THE LEARNED CIT(A) FOR ADMI TTING THE APPEAL AND DECIDE THE ISSUE ON MERIT. 5. THE LEARNED DR, ON THE OTHER HAND, RELIED ON THE ORDER OF THE LD. CIT(A) BUT DID NOT OBJECT FOR RESTORING THE MATTER BACK TO HIM FOR VERIFICATION OF CHALLAN OF FEE AND THEREAFT ER FOR DETERMINATION OF ISSUE IN DISPUTE. 6. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE DISPUTE. THE LEARNED CIT(A) HAS NOT ADMITTED THE AP PEAL OF THE ASSESSEE ON THE GROUND OF NON-FILING OF CHALLAN OF FEE AS REQUIRED UNDER SECTION 249(1)(A) OF THE ACT. BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE, HOWEVER, HAS FILED COPY OF THE CHA LLAN OF FEE DATED 27/01/2018. IN VIEW OF FEE ALREADY DEPOSITED, THE A SSESSEE CANNOT BE TREATED IN DEFAULT OF SECTION 249(1)(A) O F THE ACT. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATTER BACK TO HIM F OR VERIFICATION OF THE COPY OF CHALLAN FEE WITH INCOME-TAX DEPARTME NT RECORDS 4 ITA NO.2513/DEL/2019 AND IF SAME IS VERIFIED, THEN HE SHALL DECIDE THE ISSUE IN DISPUTE IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPP ORTUNITY OF BEING HEARD TO BOTH THE PARTIES. ACCORDINGLY, THE G ROUNDS OF THE APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH JULY, 2021 SD/- SD/- (KUL BHARAT) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 9 TH JULY, 2021. RK/- (DTDS) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI