Sh. Rambir Singh, Delhi V. ITO, Bulandshahr

ITA 2703/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8178 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 26-04-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 06-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N J SINGH
• Assessee Lawyers: DR RAKESH GUPTA; SOMIL AGGARWAL ADVS
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 142(1); 234B; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT MEMBER ITA NO. 2703/DEL/2015 : ASSTT. YEAR : 200 9 - 10 SH. RAMBIR SINGH, A/121, SECTOR - I I, GROUND FLOOR, ROHINI, DELHI - 110085 VS INCOME TAX OFFICER, WARD - 3 , BULANDSHAHR (APPELLANT) (RESPONDENT) PAN NO. CZMPS3655Q ASSESSEE BY : DR. RAKESH GUPTA, & SOMIL AGGARWAL, ADVS. REVENUE BY : SH. N. J . SINGH , SR. DR DATE OF HEARING : 26 .04 .201 6 DATE OF PRONOUNCEMENT : 28 .04 .201 6 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24.03.2014 OF LD. CIT(A) , MEERUT . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APP EAL: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN FRAMING THE IMPUGNED REASSESSMENT ORDER U/S 148/143(3) WITHOUT ASSUMING JURISDICTION AS PER LAW AND W ITHOUT RECORDING VALID REASONS AS PER LAW AND WITHOUT OBTAINING REQUISITE SATISFACTION AS PER LAW AND WITHOUT COMPLYING WITH THE OTHER MANDATORY CONDITIONS OF SECTION 147 TO 151 OF INCOME TAX ACT, 1961. ITA NO . 2703 /DEL /2015 RAMBIR SINGH 2 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. C1T(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN FRAMING THE IMPUGNED REASSESSMENT ORDER U/S 148/143(3) WITHOUT SERVING THE MANDATORY NOTICES U/S 148, 143(2) AND 142(1) OF INCOME TAX ACT, 1961. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT DELETIN G THE ADDITION OF RS. 11,00,000/ - FULLY AS MADE BY LD. AO ON ACCOUNT OF CASH DEPOSITS IN BANK ACCOUNT OF ASSESSEE AND HAS FURTHER ERRED IN SUSTAINING THE ADDITION TO THE EXTENT OF RS.7,76,645/ - AND THAT TOO WITHOUT ANY BASIS, MATERIAL AND EVIDENCES AVAILABLE ON RECORD AND WITHOUT CONSIDERING THE SUBMISSIONS AND EVIDENCES FILED BY THE ASSESSEE AND WITHOUT FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 4. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN SUSTAINING THE ADDITION MADE BY LD. AO OF RS.7,76,645/ - ON ACCOUNT OF CASH DEPOSITS WHICH IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES OF THE CASE. LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN CHARGING THE INTEREST U/S 234A, 234B AND 234C OF THE INCOME TAX ACT, 1961. 6. THAT THE APPELLANT CRAVES TO LEAVE TO ADD, MODIFY, AM END OR DELETE ANY OF THE GROUNDS OF ITA NO . 2703 /DEL /2015 RAMBIR SINGH 3 APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND S AND REQUESTED FOR ADMISSION OF THE SAME BY STATING IN APPLICATION DATED 05 .11.2015 THAT THE ADDITIONAL GROUND IS PURELY LEGAL GROUND WHICH DOES NOT REQUIRE FRESH FACTS TO BE INVESTIGATED AND GOES TO THE ROOT OF THE MATTER. THE RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF THE HON BLE SUPREME COURT IN THE CASE OF NTP C CO. LTD. VS C IT (1998) 229 ITR 383. THE ADDITIONAL GROUNDS RAISED READ AS UNDER: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN FRAMING THE IMPUGNED ASSESSMENT ORDER U/S 148/143(3) AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT RECORDING VALID REASONS AS PER LAW AND WITHOUT COMPLYING WITH MANDATORY CONDITIONS AS ENVISAGED U/S 147 TO 151 OF THE INCOME TAX ACT, 1961. 2. THAT IN ANY CASE AND IN ANY VIE W OF THE MATTER, ACTION OF LD. CIT(A) IN NOT QUASHING THE IMPUGNED ASSESSMENT ORDER FRAMED BY LD. AO U/S 148/143(3) WHICH IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. SINCE THE ABOVE GROUNDS OF APPEAL ARE PURELY LEGAL, DOES NOT REQUI RE FRESH FACTS TO BE INVESTIGATED AND GOES TO THE ROOT OF THE MATTER, IT IS PRAYED THAT IT MAY PLEASE BE ADMITTED IN VIEW OF THE HON BLE SUPREME COURT DECISION IN THE CASE OF NTPC LIMITED 229 ITR 383. ITA NO . 2703 /DEL /2015 RAMBIR SINGH 4 4. THE ASSESSEE HAD ALSO MOVED AN APPLICATION UNDER RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 FOR ADMISSION OF THE ADDITIONAL EVIDENCE S WHICH ARE THE COPIES OF THE DOCUMENTS SHOWING AGRICULTURAL LAND IN THE NAME OF THE ASSESSEE. IT HAS BEEN STATED IN THE APPLICATION DATED 05.11.2015 THAT THE AO DID NOT ASK ANYTHING ABOUT THE AGRICULTURAL LAND DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND DID NOT DEMAND THESE EVIDENCE S, THEREFORE, THE SAME ARE FURNISHED NOW. THE RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF THE HON BLE DELHI H IGH COURT IN THE C ASE OF TEXT HUNDRE D INDIA PVT. LTD. VS CIT (2011) 197 TAXMANN.COM 128. 5. FACTS OF THE CASE IN BRIEF ARE THAT THE AO ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT) TO ASSESS THE ESCAPED INCOME ON 06.06.2011. HOWEVER, THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME . T HEREAFTER , THE AO ISSUED , NOTICE U/S 142(1) OF THE INCOME TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) ALONGWITH QUESTIONNAIRE ON 20.10.2011. THE ASSESSEE FILED THE RETURN OF INCOME ON 23.11.2011 DECLARING NET TAXABLE INCOME OF RS.1,54,969/ - AND AGRICULTURAL INCOME OF RS.10,000/ - . THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED THAT THE ONLY SOURCE OF INCOME OF THE ASSESSEE WAS SALARY & PENSION INCOME AND SOME NOMINAL AGRICULTURAL INCOME BUT THE ASSESSEE HAD DEPOSITED CASH OF RS.11,00,000/ - IN HIS SAVING BANK ACCOUNT WITH PUNJAB NATIONAL BANK, MOTI BAG, BULANDSHAHAR. THE AO OBSERVED THAT THE ASSESSEE ITA NO . 2703 /DEL /2015 RAMBIR SINGH 5 COMPLETELY FAILED TO EXPLAIN THE EXACT SOURCE OF THE DEPOSITS OF RS.11,00,000/ - IN THE SAVING BANK ACCOUNT. HE, THEREFORE, CONSIDERED THE SAID DEPOSITS AS INCOME OF THE ASSESSEE AS INCOME FROM UNEXPLAINED SOURCE S AND MADE THE ADDITION. 6 . THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO ALLOWED THE RELIEF OF RS.3,23,355/ - WHICH WAS RETIREMENT BEN EFIT RECEIVED IN CASH BY THE ASSESSEE AND SUSTAINED THE ADDITION OF RS.7,76,645/ - . 7 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE RELATING TO THE VALIDITY OF THE NOTICE U/S 148 OF THE ACT IS PURELY A LEGAL ISS UE AND DOES NOT REQUIRE ANY INVESTIGATION. HE FURTHER SUBMITTED THAT THE ASSESSEE DEPOSITED THE CASH OUT OF HIS PAST SAVINGS FROM AGRICULTURAL INCOME AND PENSION. HOWEVER, THE EVIDENCES RELATING TO THE HOLDING OF THE AGRICULTURAL LAND AND INCOME THERE FROM COULD NOT BE FURNISHED BEFORE THE AO BECAUSE HE DID NOT ASK FOR THE SAME. HE, THEREFORE, REQUESTED TO ADMIT THE ADDITIONAL EVIDENCES. 8 . IN HIS RIVAL SUBMISSION THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASS ESSEE WAS HAVING THE TAXABLE INCOME BUT DID NOT FILE THE RETURN OF INCOME. THEREFORE, THE AO WAS JUSTIFIED IN ISSUING THE NOTICE U/S 148 OF THE ACT. AS REGARDS TO THE ADMISSION OF THE NEW EVIDENCE S , THE LD. DR SUBMITTED THAT THE AO AS WELL AS THE LD. CIT(A ) HAD GIVEN THE OPPORTUNITY TO THE ITA NO . 2703 /DEL /2015 RAMBIR SINGH 6 ASSESSEE BUT THESE EVIDENCES WERE NOT FURNISHED BEFORE THEM. THEREFORE, THESE SHOULD NOT BE ADMITTED AT THIS STAGE. 9. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILAB LE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE CLAIMED THE DEPOSITS IN THE BANK ACCOUNT OUT OF THE PAST SAVINGS AND FROM AGRICULTURAL INCOME. HOWEVER, THE EVIDENCES RELATING TO THE LAND HOLDING AND THE INCOME THERE FROM COULD NOT BE PRODUCED BEFORE THE AO BECAUSE HE DID NOT ASK FOR THE SAME. IN MY OPINION, THE NEW EVIDENCES NOW FURNISHED BY THE ASSESSEE GO TO THE ROOT OF THE MATTER, THEREFORE, THESE DESERVE TO BE ADMITTED. AT THE SAME TIME, THE AO HAD NO OCCASION TO GO THROUGH THOSE EVIDENCES. I, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 28 /04/2016 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 28 /04/2016 *SUBODH*