Lt. Sh. Arjun lal Sharma, Haridwar V. ITO, Haridwar

ITA 2606/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0524 (ITAT-DELHI)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-02-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 31-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: PRAKASH NARAIN
• Keywords: Business income; Opportunity of being heard; Set aside
• Section: 69A; 69; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI A.K. GARODIA ITA NO. 2606/DEL/10 ASSTT. YRS: 2001-02 LATE SH. ARJUN LAL SHARMA VS. INCOME-TAX OFFICER, L/H SMT. SAVITRI DEVI, WARD-1, HARIDWAR. C/O MR. BALESH BHARGAVA ADV. 56, NIRANJANI AKHARA, MAYAPUR, HARIDWAR. PAN/ GIR NO. AIQPS4446J ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI PRAKASH NARAIN ADV. RESPONDENT BY : MS. ANUSHA KHURANA SR. DR O R D E R PER R.P. TOLANI, J.M : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT, DEHRADUN DATED 24-3-2006 PASSED U/S 263 OF THE I.T. ACT, 1961. 2. FOLLOWING TWO SUBSTANTIVE GROUNDS HAVE BEEN RAIS ED IN THIS APPEAL: A. THAT THE ORDER BY CIT(A)-1/D.DUN IS LEGALLY ERRONEO US AS ORDER HAS BEEN PASSED IN THE NAME SH. ARJUN LAL SHARMA IN SPITE OF FACT THAT LEGAL HEIR SMT. SAVITRI DEVI HAD BEEN BRO UGHT ON RECORD ON 03-12-2008 AS SH. ARJUN LAL SHARMA EXPIRE D ON 08- 06-2007 I.E. DURING THE COURSE OF APPEAL PROCEEDING . B. ADDITION CONFIRMED AS UNEXPLAINED INCOME U/S 69 OF THE I.T. ACT, 1961 BEING CASH DEPOSIT IN BANK A/C AS UNEXPLAINED IN SPITE OF FACT THAT MONTHLY CASH FLOW CHART OF SALE OF LAND A ND DEPOSIT IN ITA 2606/DEL/10 ARJUN LAL SHARMA 2 BANK HAD BEEN FILED & EXPLAINED BEFORE AO AS WELL AS CIT(A). RS. 5,72,000/- ADDITION UNDER THE HEAD BUSINESS INCOME BY REDUCING LONG TERM CAPITAL GAIN ON SALE OF LAND AT RS. 10,310. RS. 30,310/- RS. 6,02,310/- (-) RS. 10,310/- TOTAL ADDITION CONFIRMED BY CIT(A) RS. 5,92,000/ - THAT NO JUSTIFICATION IS SUBSISTED ON THE PART OF L D. INCOME TAX OFFICER, WARD-1, HARIDWAR IN ADDING AND CONFIRMING BY CIT(A) D. DUN AT RS. 5,72,000/- AS UNEXPLAINED INCOME U/S 69A OF THE INCOME TAX ACT, 1961 & RS. 30,310/- UNDER THE BUSIN ESS INCOME HEAD & REDUCING THE L.T. GAIN OF RS. 10,310/ -, INTER ALIA. 3. LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET CONTENDS THAT THE FIRST APPEAL BEFORE THE CIT(A) WAS FILED BY THE ASSESSEE WHEN HE WAS ALIVE. HE EXPIRED ON 8-6-2007. CIT(A) MISTAKENLY PASSED AN OR DER ON THE DECEASED ASSESSEE ON 1-1-2010, THEREFORE, THE CIT(A)S ORDER IS BAD IN LAW. HE CONCEDED THAT THE APPEAL MAY BE SENT BACK TO THE FI LE OF CIT(A) WITH THE DIRECTION TO BRING ON RECORD THE LEGAL HEIRS OF DEC EASED ASSESSEE AND PASS PROPER APPELLATE ORDER THEREON. LEARNED DR HAS NO OBJECTION TO THE REQUEST SO MADE. 4. WE HAVE HEARD THE SUBMISSIONS OF THE PARTIES AND HAVE GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE ORDER O F CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF CIT(A) TO BRING ON RECOR D THE LEGAL HEIRS AND THEN ITA 2606/DEL/10 ARJUN LAL SHARMA 3 DECIDE THE APPEAL IN ACCORDANCE WITH LAW, OF COURSE , AFTER AFFORDING DUE OPPORTUNITY OF BEING HEARD TO THE LEGAL HEIRS. WE O RDER ACCORDINGLY. 5. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 01-02-2011. SD/- SD/- ( A.K. GARODIA ) ( R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 01-02-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR