Vipul Goel, Faridabad V. ACIT, Meerut

ITA 2601/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61703 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 23-05-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 19-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY BAHADUR
• Assessee Lawyers: S C GARG
• Keywords: Document seized; Opportunity of being heard; Documents seized
• Section: 142(1); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H: NEW DELHI BEFORE SHRI A.N. PAHUJA, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER ITA NOS. 2601 TO 2604/DEL/2011 ASSESSMENT YEARS: 2005-06 TO 2008-09 VIPUL GOEL, 579, SECTOR-17, FARIDABAD. ADCPG2917R VS. ACIT, CENTRAL CIRCLE, MEERUT. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. S.C. GARG, CA RESPONDENT BY : SH. SANJAY BAHADUR, SR. DR O R D E R PER BENCH THESE FOUR APPEALS HAVE BEEN PREFERRED BY THE ASSES SEE AGAINST THE SEPARATE ORDERS OF THE CIT(A)-MEERUT IN THE A.YS. 2 005-06 TO 2008-09 BY WHICH THE CIT(A)-MEERUT REJECTED THE APPEALS FILED BY THE ASSESSEE CONFIRMING THE RELEVANT ASSESSMENT ORDERS. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E AO NOTED THAT A SEARCH OPERATION WAS CARRIED OUT ON THE RESIDENTIAL PREMISES OF THE ASSESSEE SITUATED AT 579, SECTOR 17, FARIDABAD ON 1 5.02.2008. UNDER SUCH SUBSEQUENTLY SEARCH WARRANTS IN RESPECT OF LOC KER NO. 99, OBC, SECTOR 17, FARIDABAD AND LOCKER NO. 32, OBC, RAJPUR ROAD, DEHRADUN OPENED IN THE NAME OF THE ASSESSEE WERE ALSO SEARCH ED AND RS. 27 LAKH CASH AND JEWELLERY VALUED AT RS. 4,93,908/- WAS ALS O SEIZED. AFTER EXAMINATION OF PUNCHNAMA FILED AND SEIZED DOCUMENTS THE AO ISSUED NOTICES U/S 153A OF THE INCOME TAX ACT, 1961 (FOR S HORT THE ACT) CALLING FOR THE RETURN OF INCOME. AS THESE NOTICES REMAINED UN -COMPLIED WITH THEREFORE, THE AO ISSUED NOTICE U/S 142(1) OF THE A CT ON 11.09.2009 CALLING FOR RETURN OF INCOME AND CASE WAS FIXED FOR 29.09.2 009. FINALLY THE RETURN ITA NO. 2601 TO 2604/D/2011 2 WAS FILED ON 22.10.2009 DECLARING TOTAL INCOME OF R ELEVANT ASSESSMENT YEAR. THE AO CONCLUDED THE ASSESSMENT WITH A FINDI NG THAT THE ASSESSEE HAD INTENTIONALLY CONCEALED THE PARTICULARS OF HIS TRUE INCOME AND ALSO FURNISHED INACCURATE PARTICULARS OF HIS INCOME AND HE ASSESSED INCOME OF THE ASSESSEE AT RS. 1,15,06,680/- FOR A.Y. 2005-06, INCOME OF RS. 23,69,917/- FOR A.Y. 2006-07, INCOME OF RS. 1,47,47 ,505/- FOR THE A.Y. 2007-08 AND THE INCOME OF RS. 5,74,42,395/- FOR THE A.Y. 2008-08. 3. BEING AGGRIEVED BY THE ABOVE ASSESSMENT ORDERS T HE ASSESSEE FIELD APPEALS BEFORE THE CIT(A)-MEERUT AND THE FIRST APPE LLATE AUTHORITY DISMISSED ALL APPEALS OF THE ASSESSEE WITH A SIMILA R FINDING AS REPRODUCED BELOW: - 5. I HAVE GONE THROUGH THE GROUNDS OF APPEAL AS W ELL AS THE STATEMENT OF FACTS WITH THE MEMO OF APPEAL NO. WORT HWHILE FACTS ARE STATED THEREIN WHICH WOULD LEAD ME TO UNDERSTAN D THE GRIEVANCES ARISING THEREFROM. EVEN THOUGH I AM NOT REQUIRED TO GIVE SEPARATE REASONS FOR AFFIRMING THE ORDER OF TH E AO AS PER THE RATIO OF THE JUDGMENT OF THE CASE OF ANIL GOEL VS. CIT(APPEALS) & ANOTHER [2008], 306 ITR 212 (P&H), I HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE AO. I FIND THAT THE ADDI TIONS HAVE BEEN MADE WITH PROPER DISCUSSION AND APPLICATION OF MIND . THE AOS ORDERS ARE, THEREFORE, CONFIRMED. 4. AGGRIEVED BY THE ABOVE ORDER OF LD. CIT(A) THE A SSESSEE FILED THESE PRESENT APPEALS BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PROCEEDINGS BEFORE LD. CIT(A) WERE ATTENDE D BY SH. PRAVEEN BANSAL, CA ON VARIOUS DATES, FINALLY ON 14.03.2011 RELEVANT DOCUMENTARY EVIDENCE WAS TO BE SUBMITTED BUT THE ASSESSEES REP RESENTATIVE COULD NOT REACH TO THE OFFICE OF LD. CIT(A) ON THE WAY HE MET WITH AN ACCIDENT. THE AO FURTHER SUBMITTED THAT DUE TO ABOVE UNFORTUNATE INCIDENCE THE ASSESSEE WAS DEPRIVED OF BY SUBMITTING RELEVANT EVIDENCE OF HIS FAVOUR BEFORE CIT(A) AND THE IMPUGNED ORDER WAS PASSED WITHOUT CONSIDERI NG THE GROUNDS OF APPEAL AND RELEVANT EVIDENCE AND SUBMISSIONS OF THE ASSESSEE. 5. THE LD. DR SUPPORTING THE ORDERS OF THE AUTHORIT IES BELOW CONTENDED THAT AS THE ASSESSEE WAS NOT COOPERATING IN THE PRO CEEDINGS BEFORE ITA NO. 2601 TO 2604/D/2011 3 AUTHORITIES BELOW, THEREFORE, THE AUTHORITIES WERE COMPELLED TO PROCEED ON THE BASIS OF MATERIAL AVAILABLE BEFORE THEM. THE L D. DR VEHEMENTLY CONTENDED THAT IF ASSESSEE IS NOT COMING FORWARD WI TH CLEAN HANDS TO SUPPORT THE ASSESSMENT PROCEEDINGS AND THEREAFTER, HEARING OF THE APPEAL, THIS ATTITUDE OF THE ASSESSEE COMPELLED THE AUTHORI TIES TO PROCEED OF THEIR OWN ACCORDING TO THE PROVISIONS OF THE ACT AND THE RULES MADE THERE UNDER. 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS OF BOTH T HE PARTIES IN THE LIGHT OF RECORDS AND EVIDENCE BEFORE US. 7. FROM THE BARE READING OF THE ASSESSMENT ORDERS, WE NOTE THAT SH. PRAVEEN BANSAL, CA ATTENDED THE PROCEEDINGS BEFORE THE AO AND ASSESSMENT ORDERS WERE PASSED AFTER PROVIDING REASO NABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. BUT ON BARE READING OF TH E IMPUGNED ORDER, WE OBSERVED THAT ON FIRST DATE OF HEARING I.E. 9.7.201 0 SH. PRAVEEN BANSAL, CA ATTENDED THE PROCEEDINGS AND SOUGHT ADJOURNMENTS AF TER A FEW DATES OF HEARING FINALLY ON 04.03.2011 THE ASSESSEES REPRES ENTATIVE PRAYED FOR ADJOURNMENT AND CASE WAS FIXED FOR 14.03.2011. ON ABOVE DATES OF HEARING I.E. 14.03.2011 THE LD. CIT(A) NOTED NO CO MPLIANCE AND PROCEEDED TO ADJUDICATE THE APPEALS. FROM THE OPER ATIVE PARA 5 OF THE IMPUGNED ORDERS, WE ALSO OBSERVE THAT THE LD. CIT(A ) CONFIRMED THE ASSESSMENT ORDER WITH A FINDING THAT THE APPELLANT ASSESSEE HAS NO INTENTION OF PURSUING THE APPEALS AND COOPERATE IN THE PROCESS OF ADJUDICATION. THEREFORE, AFTER CAREFUL CONSIDERATI ON OF THE ASSESSMENT ORDER THE LD. CIT(A) COULD NOT FOUND ANY REASON TO INTERVENE IN THE ASSESSMENT ORDER AND HE ALSO NOTED THAT THE ADDITIO NS MADE BY THE AO WITH A PROPER DISCUSSION AND APPLICATION OF MIND. 8. DURING THE COURSE OF HEARING, THE AR SUBMITTED A COPY OF THE ORDER OF ITAT, A BENCH, DELHI PASSED ORDER DATED 09.06.201 1 IN ITA NO. 1742DEL/2011 FOR THE A.Y. 2002-03 IN THE CASE OF M/ S AYUSH FINCAP PVT. LTD. VS. ACIT, CENTRAL CIRCLE, MEERUT, WHERE IT WAS HELD THAT IF THE ASSESSEE ITA NO. 2601 TO 2604/D/2011 4 WAS NOT AFFORDED OPPORTUNITY TO BE HEARD BY THE FIR ST APPELLATE AUTHORITY THEN THE CASE MAY BE RESTORED TO THE FILE OF LD. CI T(A) FOR PROPER ADJUDICATION. IN THIS CASE, THE ITAT, DELHI BENCH OBSERVED THAT THE DIRECTOR OF THE COMPANY SUBMITTED AN AFFIDAVIT STAT ING THE CAUSE WHICH PREVENTED HIM TO ATTEND THE PROCEEDINGS ON THE FINA L DATE OF HEARING AND ALSO FOR THE NON-APPEARANCE ON THE EARLIER DATES. THE REASON STATED IN THE AFFIDAVIT WAS NON-COMMUNICATION OF THE NOTICE OF HE ARING. THE ITAT DELHI BENCH HELD THAT THE ASSESSEE HAS BEEN DEPRIVED OF P ROPER OPPORTUNITY OF HEARING AND, THEREFORE, THE MATTER WAS REMITTED TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. 9. IN THE APPEALS IN HAND, WE OBSERVE THAT THE APPE LLANT ASSESSEE HAS SUBMITTED A PAPER BOOK SPREAD OVER 42 PAGES. ON PA GE NO. 1 & 2 OF THE SAID PAPER BOOK AN AFFIDAVIT HAS BEEN FILED BY SHRI PRAVEEN BANSAL, S/O SHRI P.P. BANSAL STATING THAT HE HAD AN ACCIDENT ON 28.02.11 IN WHICH HE SUSTAINED INJURY ON HIS CHIN WHICH WAS SUTURED AT A SIAN INSTITUTE OF MEDICAL SCIENCES, FARIDABAD. ON PAGE NO. 5 THERE IS AN OPD BILL DATED 28.02.11 AND ON PAGE NO. 3 OF THE PAPER BOOK THERE IS A PRES CRIPTION OF SHRI PRAVEEN BANSAL DATED 14.03.11 WHICH REVEALS THAT HE SUSTAIN ED INJURIES IN AN ACCIDENT AND WHICH WERE TREATED BY SUPER SPECIALITY ASIAN HOSPITAL, FARIDABAD. THE DR DID NOT CONTROVERT ABOVE DOCUMEN TS IN ANY MANNER. THEREFORE, WE FINALLY OBSERVE THAT THE ASSESSEE WAS PREVENTED DUE TO REASONABLE AND BONAFIDE REASON TO ATTEND THE PROCEE DINGS BEFORE LD. CIT(A) AND ACCORDINGLY HE COULD NOT GET OPPORTUNITY TO BE HEARD BEFORE FIRST APPELLATE AUTHORITY. IN THE LIGHT OF OBSERVATIONS MADE BY ITAT, DELHI BENCH IN THE CASE OF M/S AYUSH FIN CAP PVT. LTD. (SUPRA) WE CONCLUDE WITH A FINDING THAT THE PRESENT APPELLANT ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY TO BE HEARD BEFORE LD. CIT(A). ITA NO. 2601 TO 2604/D/2011 5 10. IN THE VIEW OF ABOVE, WE FIND IT JUST AND PROPE R OF REMIT THESE APPEALS TO THE FILE OF LD. CIT(A) TO BE DECIDED DENOVO IN A CCORDANCE WITH LAW, AFTER AFFORDING ADEQUATE AND PROPER OPPORTUNITY OF HEARIN G TO THE ASSESSEE. THE ASSESSEE SHALL COOPERATE IN THE FRESH PROCEEDINGS B EFORE THE LD. CIT(A). 11. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THIS DECISION IS PRONOUNCED IN THE OPEN COURT ON TH E CONCLUSION OF HEARING ON 23.05.2012 SD/- SD/- (A.N. PAHUJA) ACCOUNTANT MEMBER (C.M. GARG) JUDICIAL MEMBER DATED: 23.5.12 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR