Smt. Sushma Arora, New Delhi V. ACIT, New Delhi

ITA 2646/DEL/2013

• Counselvise Citation: 264620114 RSA 2013
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 08-09-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 02-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Keywords: Unexplained investment; Source of fund; Corroborative evidences; Reassessment proceedings
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : G NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUD ICIAL MEMBER ITA NO: 2646/DEL/2013 AY : - 2002-03 L/H SHRI ASHWINI ARORA VS. A CIT LATE SMT. SUSHMA ARORA CE NTRAL CIRCLE-12, ARA CENTRE, L-9, VIJAY CHOWK, JHANDEWALAN EXTENSION LAXMI NAGAR, NEW D ELHI. DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAJEEV SAXENA, ADVOCATE MS. SUMANGLA SAXENA, ADVOCATE RESPONDENT BY :SH KARTAR SINGH, CIT (DR) DATE OF HEARING :08.9.2015 DATE OF PRONOUNCEMENT : 11 .9.2015 O R D E R PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS APPEAL IS FILED AGAINST THE ORDER DATED 28.01.2013 OF LD. CIT (A) DELHI- VI, NEW DELHI. 2. THE FACTS IN BRIEF ARE THAT IN THIS CASE T HE ORIGINAL ASSESSMENT PROCEEDINGS WERE COMPLETED U/S 153C OF THE INCOME TAX ACT, 1961 (HEREIN AFTER CALLED THE ACT) ON 31.12.2007 AT AN INCOME OF RS. 4,99,824/- AS AGA INST THE RETURNED INCOME OF RS. 99,824/-. AN ADDITION OF RS. 4 LACS WAS MADE U/S 69 OF THE ACT ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN PURCHASE OF TWO FLATS FOR AN AMOUNT OF RS. 2 LACS EACH. DURING THE ORIGINAL ASSESSMENT PROCEEDINGS, THE ASS ESSEE WAS REQUIRED TO FURNISH SOURCE OF INVESTMENT IN PURCHASE OF THE AFORESAID F LATS. SINCE THE ASSESSEE HAD FAILED TO FURNISH SUPPORTING EVIDENCE BEFORE THE AO, THE A O TREATED THE INVESTMENT AS BEING MADE OUT OF UNEXPLAINED SOURCES AND THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. AGAI NST THE ASSESSMENT ORDER, THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A) WHO D ELETED THE ADDITION TO THE EXTENT OF RS. 2,50,000/-. AGAINST THE ORDER OF LD. CIT (A), THE ASSESSEE FILED A FURTHER APPEAL BEFORE THE ITAT AND A COORDINATE BEN CH OF THIS TRIBUNAL IN ITA NO. 1593/DEL/2009 RESTORED BACK THE CASE TO THE FILE OF THE AO FOR FRESH ADJUDICATION. DURING THE COURSE OF REASSESSMENT PROCEEDINGS, THE ASSESSEE FAILED TO COMPLY WITH THE VARIOUS NOTICES ISSUED U/S 143 (2) OF THE ACT A ND CONSEQUENTLY IN ABSENCE OF ANY SUBMISSIONS / EXPLANATIONS THE AO AGAIN ADDED BACK RS. 4 LACS AS UNEXPLAINED INCOME OF THE ASSESSEE U/S 69 OF THE ACT. THE LD. CIT (A) ALSO CONFIRMED THIS ADDITION ON THE GROUND THAT THE ASSESSEE HAD FAILED TO OFFER ANY EXPLANATION ABOUT THE NATURE AND SOURCE OF INVESTMENT IN THE AFORESAI D FLATS BEFORE THE AO. 3. IN THE APPEAL BEFORE US IT WAS SUBMITTED BY THE LD. AR THAT THE AO HAD MADE THE SAME ADDITION OF RS. 4 LACS DESPITE THE FA CT THAT IN THE FIRST ROUND OF APPELLATE PROCEEDINGS, THE LD. CIT (A) HAD GRANTED A RELIEF TO THE EXTENT OF RS. 2,50,000/- TO THE ASSESSEE. IT WAS FURTHER SUBMITT ED THAT IN THE SECOND APPEAL FILED BEFORE THE ITAT, THE ASSESSEE HAD DISPUTED THE CONF IRMATION OF ADDITION OF RS. 1,50,000/- BY THE LD. CIT (A) AND AS SUCH THE ADDIT ION MADE BY THE AO IN THE SET ASIDE PROCEEDINGS TO THE TUNE OF RS. 4 LACS WAS UNW ARRANTED AND UNSUSTAINABLE. IT WAS FURTHER SUBMITTED THAT ONCE AN ASSESSMENT IS SE T ASIDE TO MAKE A FRESH ASSESSMENT, THE SAME IS LIMITED TO THE SUBJECT MATT ER OF APPEAL BEFORE THE APPELLATE AUTHORITY WHO HAS REMANDED THE CASE. THE LD. AR PLA CED RELIANCE ON S.P. KOCHHAR VS. ITO 145 ITR 255 (ALL), KARTAR SINGH VS. CIT 111 ITR 184 ( P & H) AND ITO VS. V.S. CHABBRA 15 ITD 96 (BOM) IN SUPPORT OF THE PREP OSITION. LD. AR ALSO SUBMITTED THAT IN REMAND PROCEEDINGS THE ASSESSEE COULD NOT B E PUT IN A WORSE SITUATION THAN TO WHICH SHE WAS SUBSEQUENT TO THE ORDER OF LD. CIT (A). RELIANCE WAS PLACED ON THE ORDER OF THIS TRIBUNAL IN THE CASE OF ASIA SATELLIT E TELECOMMUNICATIONS COMPANY LTD. VS. DCIT IN ITA NO. 1484 TO 1491/DEL/2008. IT WAS ALSO SUBMITTED THAT THE ASSESSEE SMT. SUSHMA ARORA HAS EXPIRED ON 25.5.2014 AND TH E PRESENT APPEAL IS NOW BEING CONTESTED BY SHRI ASHWANI ARORA WHO HAS BEEN SUBSTI TUTED AS HER LEGAL HEIR IN THE PROCEEDINGS BEFORE US. IT WAS ALSO SUBMITTED THAT I T WAS DUE TO THE CONTINUED AND PROLONGED ILLNESS OF THE ASSESSEE SMT. SUSHMA ARORA AND HER SUBSEQUENT DEMISE THAT THE REASSESSMENT PROCEEDINGS COULD NOT BE PROP ERTY ATTENDED TO. 4. LD. DR ON THE OTHER HAND SUPPORTED THE REAS SESSMENT ORDER AS WELL AS THE ORDER OF THE LD. CIT (A). 5. WE HAVE GONE THROUGH THE FACTS OF THE CASE AN D ALSO THE SURROUNDING CIRCUMSTANCES AND IT IS OUR CONSIDERED OPINION THAT IN THE REMAND PROCEEDINGS THE AO COULD NOT HAVE AGAIN ADDED RS. 4 LACS AS INVESTM ENT FROM UNEXPLAINED SOURCES AS THE ISSUE BEFORE HIM WAS ONLY LIMITED TO ADJUDIC ATING ON THE BALANCE AMOUNT OF RS. 1,50,000/- WHICH WAS CONFIRMED BY THE LD. CIT( A) IN THE FIRST ROUND OF LITIGATION. FURTHER, ON PERUSAL OF THE ASSESSMENT ORDER DATED 3 1.12.2007 AND THE RE- ASSESSMENT ORDER DATED 28.12.2011, WE FIND THAT IN BOTH THE ORDERS, THE ADDITION OF RS. 4 LACS HAS BEEN MADE ON A PURELY ESTIMATE BASIS WITHOUT BRINGING ON RECORD ANY COGENT EVIDENCE OR FINDING FOR SUCH ADDITION . FROM THE CHART FILED BEFORE US BY THE LD. AR, WE FIND THAT SOURCE OF FUNDS AMOUNTING TO R S. 3,53,500/- HAVE BEEN EXPLAINED BY THE ASSESSEE DURING THE VARIOUS STAGES OF PROCEEDINGS BEFORE THE LOWER AUTHORITIES AND THE LD. DR ALSO COULD NOT CONTROVER T THIS. WE ALSO FIND MERIT IN THE SUBMISSION OF THE LD. AR THAT SINCE THE REVENUE HAD NOT FILED ANY APPEAL AGAINST THE ORDER OF THE LD. CIT (A) IN THE FIRST ROUND OF LITI GATION, THE ASSESSEE SHOULD NOT BE PUT IN A WORSE POSITION THAN TO WHICH HE WAS AFTER THE ORDER OF CIT (A). 6. THEREFORE, LOOKING INTO THE FACTS AND CIRCUM STANCES OF THE CASE AND THE FACT THAT THE ASSESSEE HAS SINCE PASSED AWAY AND SINCE T HE ADDITION HAS BEEN MADE MERELY ON A ADHOC BASIS, IT IS OUR CONSIDERED OPINI ON THAT THE ENTIRE ADDITION OF RS. 4 LACS HAS BEEN WRONGLY CONFIRMED BY THE LD. CIT (A) AND WE DIRECT THAT THE SAME SHOULD BE DELETED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2015. SD/- (J. SUDHAKAR REDDY) (S UDHANSHU SRIVASTAVA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: THE 11. 9. 2015 VEENA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER DY. REGISTRAR SL. NO. DESCRIPTION DATE 1. DATE OF DICTATION BY THE AUTHOR 8.9.2015 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 9.9.20 15 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY THE SECOND MEMBER 5. DATE OF APPROVED ORDER COMES TO THE SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER 7. DATE OF FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER