Shri Bhupinder Singh, Delhi V. ITO, New Delhi

ITA 2692/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7144 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 10-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 11-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 142(1); 133(6)

Judgement Text

I.T.A .NO.-2692/DEL/2016 BHUPINDER SINGH VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-2692/DEL/2016 (ASSESSMENT YEAR-2008-09) BHUPINDER SINGH, 5/3/4, GEETA COLONY, DELHI-110031. PAN-ASOPS2492N ( APPELLANT) VS ITO, WARD-58(2) (OLD WARD-36(1), VIKASH BHAWAN, NEW DELHI. (RESPONDENT) ASSESSEE BY NONE REVENUE BY SH. F.R.MEENA, SR.DR DATE OF HEARING 10 . 11 .2016 DATE OF PRONOUNCEMENT 06 . 01 .201 7 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 18.02.2016 OF CIT(A)-19, NEW DELHI PERT AINING TO 200809 ASSESSMENT YEAR ON VARIOUS GROUNDS. THE GRIEVANCE OF THE ASSESSEE ADD RESSED IN THE GROUNDS FILED IS THAT THE ADDITION OF RS.26,57,533/- MADE BY ASSESSING OFFICE R HAS WRONGLY BEEN SUSTAINED IN APPEAL BY THE CIT(A). 2. HOWEVER, AT THE TIME OF HEARING, AN ADJOURNMENT PETITION WAS MOVED ON BEHALF OF THE ASSESSEE. CONSIDERING THE MATERIAL AVAILABLE ON RE CORD AND AFTER NOTING THE OBJECTIONS THE LD. SR.DR IT WAS CONSIDERED APPROPRIATE TO REJECT T HE SAME AND PROCEED WITH THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE ON MERIT AFTER HEA RING THE SR.DR. 3. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE WHO HAD NOT FILED ANY RETURN WAS FOUND AS PER DATA AVAILABLE TO THE TAX AUTHORIT IES DEPOSITED CASH OF RS.26,57,533/- IN HIS BANK ACCOUNT MAINTAINED WITH ICICI BANK LIMITED . THUS AFTER RECORDING OF REASONS NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE REQUIRING THE ASSESSEE TO EXPLAIN THE SAME. NOTICES ISSUED U/S 142(1) REMAINED UNCOMPLIED WITH. INFORMATION UNDER SECTION 133(6) OF THE I.T.ACT WAS SOUGHT FROM THE MANAGER, ICICI BANK , BANDRA (EAST), MUMBAI MAHARASHTRA FOR PROVIDING THE BANK STATEMENT OF THE ASSESSEE FO R THE SPECIFIC PERIOD. CONSIDERING THE SAID STATEMENT OF THE SB ACCOUNT NUMBER 63430150920 5 AND IN THE ABSENCE OF ANY PAGE 2 OF 4 I.T.A .NO.-2692/DEL/2016 BHUPINDER SINGH VS ITO REPRESENTATION ON BEHALF OF THE ASSESSEE, ADDITION OF THE SAID AMOUNT WAS MADE BY AN ORDER UNDER SECTION 147/144 OF THE I.T.ACT, 1961. 4. THE ISSUES WERE CHALLENGED IN APPEAL BEFORE THE CIT(A) WHEREIN THE ASSESSEE IS FOUND TO HAVE SUBMITTED THAT HE HAS ALREADY DECLARE D AND OFFERED FOR PROFIT RS.1,48,407/- ON GROSS RECEIPTS OF RS.29,04,253/-. IN VIEW OF TH E FACT THAT THE SAID CLAIM WAS NOT BEFORE THE ASSESSING OFFICER, THE MATTER WAS REFERRED TO T HE ASSESSING OFFICER. AS PER THE REMAND REPORT QUOTED IN PAGE 4 PARA 9 OF THE CIT(A) S ORDER, THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS REQUIRED THE ASSESSEE TO PRODUCE HIS BOOKS OF ACCOUNTS ALONGWITH SUPPORTING DOCUMENTS ON 04.11.2015; THEREAFTER ANOT HER NOTICE AS PER RECORD WAS SERVED ON 06/11/2015 GIVING THE DATE OF COMPLIANCE AS 13/1 1/2015. THE ASSESSEE INSTEAD APPEARED ON 15/12/2015 BUT MERELY SOUGHT AN ADJOURN MENT. AS A RESULT THEREOF THE HEARINGS STOOD ADJOURNED TO 30/12/2015. ON THE SAID DATE, ANOTHER ADJOURNMENT WAS MOVED. AGAIN TIME WAS GRANTED. HOWEVER, SUBSEQUENT LY ON 16/02/2016, THE ASSESSEE FILED WRITTEN SUBMISSIONS. THE CIT(A) CONSIDERING THAT IT WAS A REPETITION OF WHAT HAS OCCURRED DURING THE ASSESSMENT PROCEEDINGS HELD THAT THE ASS ESSEE HAS TAKEN A VERY CASUAL ATTITUDE TOWARDS THE OPPORTUNITY PROVIDED AND CONSIDERING TH E FACT THAT THE ASSESSEE HAD FILED ITS RETURN IN THE WRONG JURISDICTION AND DESPITE OPPORT UNITY HAD FAILED TO PROVE THAT HE WAS ENGAGED IN ANY TRADING ACTIVITY IN MOTOR PARTS AND AUTO PARTS CONFIRMED THE ADDITION. HE TOOK NOTE OF THE FACT THAT THE GROSS RECEIPTS OF T HE ASSESSEE WERE EQUAL TO HIS GROSS PROFIT THUS AT BEST THE ASSESSEE IT WAS CONCLUDED COULD BE ENGAGED IN SOME JOB WORK. IT WAS FURTHER NOTED BY HIM THAT MULTIPLE BANK ACCOUNTS WE RE MAINTAINED BY THE ASSESSEE AND THERE WAS NO MENTION ANYWHERE OF ANY BUSINESS CONDU CTED FROM ICICI BANK IN MUMBAI WHICH SURFACED ONLY THROUGH AIR INFORMATION AS EVEN FROM THE REGULAR BANK ACCOUNT MAINTAINED WITH STATE BANK OF INDIA, GANDHI NAGAR, DELHI THE PAYMENT OF TAXES WERE NOT MADE AS THEY WERE BEING MADE THROUGH PUNJAB NATIONA L BANK VIA INTERNAL BANKING OR THROUGH THE HDFC BANK. ACCORDINGLY FOR THESE VARIO US REASONS, THE CLAIM WAS CONSIDERED PAGE 3 OF 4 I.T.A .NO.-2692/DEL/2016 BHUPINDER SINGH VS ITO TO BE NOT ALLOWABLE. SPECIFIC NOTE WAS TAKEN OF TH E FACT THAT CASH DEPOSITED IN THE ICICI BANK, MUMBAI WAS WITHDRAWN ON THE SAME DAY OR MONEY WAS TRANSFERRED FROM HIS BANK ACCOUNT TO THE PERSONAL ACCOUNT OF SH.BHUPINDER SIN GH OR WITHDRAWN THROUGH ATM AND A FEW PAYMENTS WERE TOWARDS REPAYMENT OF LOANS TAKEN FROM HSBC. THUS, THE ASSESSEE BEING BASED IN DELHI WHO HAD NOT CLAIMED ANY TRADIN G ACTIVITY IN MUMBAI AND WHO HAD NOT EVEN DISCLOSED THIS BANK ACCOUNT AND DESPITE OPPORT UNITY HAD FAILED TO SUBSTANTIATE ITS CLAIM IN THE FACE OF THE MULTIPLE BANK ACCOUNTS MAI NTAINED WHEREIN THE CASH DEPOSIT STOOD UNEXPLAINED, THE ADDITION MADE WAS CONFIRMED. 5. THE LD.SR.DR RELIED UPON THE IMPUGNED ORDER AND SUBMITTED THAT THE ADDITION DESERVES TO BE CONFIRMED. HOWEVER, ON QUERY QUA TH E SPECIFIC GRIEVANCE OF THE ASSESSEE AS PER THE GROUNDS THAT THE WRITTEN SUBMISSIONS STA TED TO HAVE BEEN FILED ON BEHALF OF THE ASSESSEE WERE NOT TAKEN INTO CONSIDERATION BY THE C IT(A) HE WAS UNABLE TO SHOW WHERE THESE HAVE BEEN ADDRESSED. IN THE CIRCUMSTANCES, I T WAS HIS SUBMISSION THAT THE IMPUGNED ORDER MAY BE SET ASIDE BACK TO THE CIT(A). 6. I HAVE HEARD THE SUBMISSIONS AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. THE MERE FACT THAT WRITTEN SUBMISSIONS WERE FILED BY TH E ASSESSEE, I AM OF THE VIEW CANNOT BE SO CONSTRUED THAT THE RIGHT TO BE HEARD WAS GIVEN U P. THUS TAKING NOTE OF THE FACT THAT ALTHOUGH MORE THAN SUFFICIENT OPPORTUNITY HAS BEEN PROVIDED TO THE ASSESSEE DURING THE REMAND PROCEEDINGS AND THE APPELLATE PROCEEDINGS, I FIND ONE MORE OPPORTUNITY ON FACTS OUGHT TO HAVE BEEN PROVIDED AS IN THE EVENTUALITY T HE WRITTEN SUBMISSIONS WERE CONSIDERED TO BE NOT SUFFICIENT TO SUPPORT THE CLAIM, AN OPPOR TUNITY OF BEING HEARD AS PER LAW OUGHT TO HAVE BEEN GIVEN. I FIND THAT IN THE FACE OF THE FA CT THAT THE GRIEVANCE OF THE ASSESSEE STILL PERSISTS THE IMPUGNED ORDER IS SET ASIDE TO THE FIL E FO THE LD.CIT(A) DIRECTING THE SAID AUTHORITY TO PASS A SPEAKING ORDER IN ACCORDANCE WI TH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. WHILE SO DIR ECTING IT IS MADE CLEAR THAT THE OPPORTUNITY SO PROVIDED TO THE ASSESSEE IN GOOD FA ITH IT IS HOPED IS NOT ABUSED AND IS PAGE 4 OF 4 I.T.A .NO.-2692/DEL/2016 BHUPINDER SINGH VS ITO UTILIZED FAIRLY IN MAKING FULL AND PROPER COMPLIANC E BEFORE THE CIT(A). IN THE EVENTUALITY THE OPPORTUNITY SO PROVIDED IS ABUSED THE LD.CIT(A) WOU LD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES AND THE ADJOURNMENT PETITION MOVED WAS REJECTED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06 TH OF JANUARY 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI