Bishambhar Singh, Ghaziabad V. ITO, Ward-1(5), Ghaziabad

ITA 269/DEL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4717 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 15-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY PARASHAR
• Keywords: Gift; Source of fund
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. T. S. KAPOOR , ACCOUNTANT MEMBER ITA NO. 269 /DEL/2019 : ASSTT. YEAR : 2015 - 1 6 BISHAMBHAR SINGH, FLAT NO. B - 92, S - 2, RAMPUR I, SAHIBABAD, GHAZIABAD - 201001 VS INCOME TAX OFFICER, WARD - 1( 5 ) , GHAZIABAD (APPELLANT) (RESPONDENT) PAN NO. BFTPS0280P ASSESSEE BY : SH. ANOOP SHARMA, ADV. & SH. SANJAY PARASHAR, ADV. REVENUE BY : SH. S. L. ANURAGI , SR. DR DATE OF HEAR ING: 29 . 05 .201 9 DATE OF PRONOUNCEMENT: 30 .05 .201 9 ORDER THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), GHAZIABAD DATED 28 .11 .2018 . 2. AT THE OUTSET, THE AUTHO RIZED REPRESENTATIVE SUBMITTED THAT ASSESSING OFFICER HAD MADE TWO ADDITIONS AMOUNTING TO RS.4,37,000/ - AND RS.12,45,400/ - RESPECTIVELY. IT WAS SUBMITTED THAT THE FIRST ADDITION WAS MADE BY ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE IN THE STAMP VALUATION OF PROPERTY WHICH THE ASSESSEE HAD PURCHASED AND THE OTHER ADDITION WAS MADE BY ASSESSING OFFICER ON ACCOUNT OF DEPOSITS IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE. IT WAS SUBMITTED THAT THE CONTENTION OF THE ASSESSEE THAT ADDITIONS WERE NOT SUSTAINABLE W ERE NOT ACCEPTED BY THE ASSESSING OFFICER. REGARDING THE DEPOSITS IN THE BANK, THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION AS HE HELD ITA NO . 269 /DEL /201 9 BISHAMBHAR SINGH 2 THAT THE CREDITWORTHINESS OF THE PERSONS FROM WHOM THE ASSESSEE HAD RECEIVED GIFTS WAS NOT PROVED. 3 . IT WAS SUBM ITTED THAT BEFORE LD. CIT(A) DETAILED SUBMISSIONS WERE FILED WHEREIN THE PAN NUMBERS OF THE DONORS ALONGWITH DETAILED SUBMISSION ON ADDITION AND AFFIDAVITS ALONGWITH THEIR SOURCES OF INCOME OF DONORS WERE FILED AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO PAPER BOOK PAGE 3 TO 10 WHERE COPY OF SUBMISSIONS ALONGWITH COPY OF AFFIDAVIT AND OTHER EVIDENCES WAS PLACED. THE LD. AR SUBMITTED THAT THOUGH LD. CIT(A) NOTED THAT ADDITIONAL DOCUMENTS WERE FILED BUT HE STATED THAT SINCE THE ASSESSEE HAD NOT MADE FORM AL APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962, TH EREFORE, HE COULD NOT CONSIDER THE SAME. IT WAS PRAYED THAT THE CASE MAY BE REMITTED TO LD. CIT(A) WITH A DIRECTION TO CONSIDER THE ADDITIONAL DOCUMENTS AS THESE DOCUMENTS ARE CRUCIAL TO DECIDI NG THE ISSUES INVOLVED IN THE APPEAL. 4. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED ON THE ORDERS OF AUTHORITIES BELOW. 5 . I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD . I FIND THAT THE ADDITIONAL DOCUMENTS WERE FILED BEFORE LD. CIT(A) VIDE WRITTEN SUBMISSION DATED 29.05.2018 WHICH IS PLACED AT PAPER BOOK PAGE 3 TO 10. THE LD. CIT(A) HAS NOT CONSIDERED THESE DOCUMENTS BY HOLDING THAT ASSESSEE HAD NOT MADE ANY FORMAL APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962. I FIND THAT VIDE NOTICE U/S 142(1) OF THE ACT DATED 04.09.2017, THE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY THE INCOME BEING THE DIFFERENCE BETWEEN STAMP VALUATION AND PURCHASE VALUE BE NOT ADDED TO THE INCOME OF ASSESSEE. VIDE SAME NOTICE, THE ASSESSEE WAS SHOW CAUSE AS TO WHY THE DEPOSITS IN BANK ACCOUNT BE NOT TREATED AS ITA NO . 269 /DEL /201 9 BISHAMBHAR SINGH 3 INCOME OF THE ASSESSEE. THE ASSESSING OFFICER PASS ED THE ORDER ON 17.11.2017 WHICH PROVES THAT ASSESSEE WAS NOT PROVIDED SUFFICIENT OPPORTUNITY TO FILE THE EV IDENCE OF DEPOSITS IN BANK AND WAS NOT ABLE TO FILE SUBMISSIONS FOR OTHER ADDITIONS. THEREFORE, THE ASSESSEE FILED WRITTEN SUBMISSION DATED 29.05.2018, A COPY OF WHICH IS PLACED AT PAPER BOOK PAGE 3 TO 10 IN WHICH THE DETAILED WRITTEN SUBMISSION ALONGWITH THE COPY OF AFFIDAVIT OF DONORS ALONGWITH THEIR INCOME PROVES WERE FILED BUT LD. CIT(A) DID NOT CONSIDER THE SAME BY HOLDING THAT ASSESSEE HAD NOT FILED FORMAL APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962. HOWEVER, I FIND THAT LD. CIT(A) IS B OTH AN ADJUDICATOR AND INVESTIGATOR AND THEREFORE, IN VIEW OF SUBSTANTIAL JUSTICE HE SHOULD HAVE CONSIDERED THE ADDITIONAL DOCUMENT ESPECIALLY KEEPING IN VIEW THE FACT THAT THERE WAS LITTLE OPPORTUNITY AVAILABLE TO THE ASSESSEE IN EXPLAINING THE SAME BEFOR E ASSESSING OFFICER. THEREFORE, I REMIT THE ISSUE BACK TO LD. CIT(A) WHO SHOULD CONSIDER THE DOCUMENTS FILED BY WRITTEN SUBMISSION DATED 29.05.2018 AND RE - DECIDE THE ISSUE AFRESH. NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUFFICIENT OPPORTUNITY OF BEI NG HEARD. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORDER PRONOUNCED IN THE COURT ON 30 TH DAY OF MAY , 2019 AT NEW DELHI) SD/ - ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED: 30 /0 5 /2019 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR