Shyam Sunder Talwar, Delhi V. ITO, Ward- 62(3), New Delhi

ITA 2525/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2815 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 22-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ARUN GUPTA
• Keywords: Unexplained investment; Unexplained expenditure; Principle of natural justice
• Section: 143(2); 69A; 22; 148

Judgement Text

1 ITA NO. 2525/DEL/2019 IN THE INCOME TAX APPELLAT E TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBE R AND MS SUCHITRA KAMBLE, JUDIC IAL MEMBER ITA NO. 2525/DEL/2019 ( A .Y 2012-13) (THROUGH VIDEO CONFEREN CING) SHYAM SUNDER TALWAR 41/3, ASHOK NAGAR, DELHI AACPT7577R (APPELLANT) VS ITO WARD 62(3) 22 ND FLOOR, E-2, BLOCK, CIVIC CENTRE, J. L. NEHRU MARG, NEW DELHI (RESPONDENT) APPELLANT BY SH. ARUN GUPTA, AR RESPONDENT BY SH. VIPUL KASHYAP, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 13/2/2019 PASSED BY CIT(A)-20, NEW DELHI FOR ASSESSMENT YEAR 2012-13. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE ORDER PASSED BY THE LD. CIT(A) IS BAD I N LAW AND NATURE AND LIABLE TO BE QUASHED. (A) THE ASSESSEE WAS DEPRIVED OF THE LEGITIMATE RIG HT OF MAKING SUBMISSION DURING THE APPELLATE PROCEEDINGS AGAINST THE ADDITI ONS MADE IN THE ASSESSMENT ORDER. B) THE LD.CIT(A) WAS NOT CONSIDERATE TO GRANT THE ADJ OURNMENT IN SPITE OF THE FACT THAT AN APPLICATION WAS PENDING BEFORE THE LD. AO FOR INSPECTION OF RECORDS AND THE FACT WAS DULY INTIMATED TO LD. CIT( A). DATE OF HEARING 17.11.2020 DATE OF PRONOUNCEMENT 25.11.2020 2 ITA NO. 2525/DEL/2019 C) THE LD. CIT(A) WHILE PASSING THE APPELLATE ORDER D ID NOT FOLLOW THE PRINCIPLE OF NATURAL JUSTICE. 2. THAT THE ASSESSMENT ORDER HAS BEEN PASSED WITHOUT ISSUING THE MANDATORY NOTICE U/S 143(2) OF THE ACT AND THEREFORE THE LD. AO HAS WRONGLY ASSUMED JURISDICTION OVER THE ASSESSEE AND THE ASSESSMENT O RDER IS LIABLE TO BE QUASHED. 3. THAT THE REASONS HAVE BEEN RECORDED AND NOTICE U/S 148 OF THE ACT HAS BEEN ISSUED WITHOUT TAKING THE MANDATORY APPROVAL FROM T HE RESPECTIVE HIGHER AUTHORITIES ENVISAGED U/S 151 OF THE ACT AND THEREF ORE THE LD. AO HAS WRONGLY ASSUMED JURISDICTION OVER THE ASSESSEE AND THE ASSESSMENT ORDER PASSED IS LIABLE TO BE QUASHED. 4. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE AD DITION OF RS. 1,21,00,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69A OF THE ACT, THE ASSESSEE SUBMITTED THAT HE OWNED ONLY 50% OF THE PROPERTY AN D SOURCE OF THE INVESTMENT WAS DULY SUBMITTED, SO IT IS LIABLE TO B E DELETED. 5. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE AD DITION OF RS.3,67,588/- ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF PROPER TY, WHERE THE ASSESSEE HAS DULY EXPLAINED THAT THE PROPERTY BELONGED TO ASSESS EES WIFE AND ASSESSEE HAS ACTED ONLY ON HER BEHALF AS POWER OF ATTORNEY H OLDER AND HENCE IT IS LIABLE TO BE DELETED. 6. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE AD DITION OF RS. 1,50,000/- ON ACCOUNT OF EXPENDITURE ON FOREIGN TRIPS AS THE EXPE NSES WERE BORNE BY THE COMPANY IN WHICH ASSESSEE WAS A DIRECTOR AND NOT BY ASSESSEE AND THE DOCUMENTS WERE ALREADY SUBMITTED, SO IT IS LIABLE T O BE DELETED. 3. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE WAS ENGAGED IN THE BUSINESS/PROFESSION OF TRAVEL ON CONTRACT BASIS, IN THE NAME AND STYLE OF M/S DIAMOND TRAVELS AS A PROPRIETOR. THE RETURN OF INCO ME WAS FILED ON 30.09.2012 DECLARING INCOME OF RS. 8,98,570/-. THE ASSESSING O FFICER PASSED THE ASSESSMENT ORDER DATED 30.12.2016 THEREBY ASSESSING THE INCOME AT RS. 1,56,66,750/- AND MAKING ADDITIONS/DISALLOWANCES IN RESPECT OF DISALLOWANCE 3 ITA NO. 2525/DEL/2019 OUT OF STORES AND SPARE PARTS, DISALLOWANCE OF SALA RY AND WAGES, DISALLOWANCE OF OUT OF OTHER EXPENSES, ADDITION ON ACCOUNT OF UNEXP LAINED INVESTMENT AND UNEXPLAINED EXPENDITURE AS WELL AS ADDITION ON ACCO UNT OF LONG TERM CAPITAL GAIN. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) HAS NOT GIV EN THE APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE TO REPRESEN T HIS CASE. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE CIT(A) HA S NOT GIVEN ANY CATEGORICALLY FINDING ON MERIT OF THE CASE AND ALSO DID NOT GIVE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE, THE CIT(A) WAS NOT RIGHT IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT GIVING PROPER OPPORT UNITY OF HEARING. HENCE, WE ARE REMANDING BACK THE ENTIRE ISSUE TO THE FILE OF THE CIT(A) TO BE DECIDED ON MERIT. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPO RTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF NOVEMBER, 2020 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER 4 ITA NO. 2525/DEL/2019 DATED: 25/11/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI