Shri Vikas Jain, Ghaziabad V. DCIT, Ghaziabad

ITA 2734/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6756 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 15-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DEEPAK GUPTA
• Keywords: Principle of natural justice
• Section: 142(1); 234B; 10

Judgement Text

I.T.A .NO.-2734/DEL/2016 VIKAS JAIN VS DCIT IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-2734/DEL/2016 (ASSESSMENT YEAR-2011-12) VIKAS JAIN, 701, A-3, OLIVE COUNTY, SECTOR-5, VASUNDHARA, GHAZIABAD-201009. PAN-ABKPJ7385E ( APPELLANT) VS DCIT, CIRCLE-2, GHAZIABAD. (RESPONDENT) ASSESSEE BY SH. DEEPAK GUPTA, CA REVENUE BY SH. NEERAJ KUMAR, SR.DR DATE OF HEARING 15.11.2016 DATE OF PRONOUNCEMENT 01.02.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 06.02.2016 OF CIT(A), GHAZIABAD PERTAIN ING TO 201112 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING DISALLOWANCE OF CLAIMS OF RS.5,55,143 UNDER SECTION 10 AND RS.2,500/- UNDER SECTION 16(III) OF THE INCOME TAX ACT, 1961, RESPEC TIVELY, COMPLETELY IGNORING THE FACT THAT ENTIRE CLAIM UNDER SECTION 10 AND 16(III) WERE BASED ON THE REQUISITE FORM NO. 16 ISSUED BY THE EMPLOYER AND THAT TOO WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING . 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MAKING DISALLOWA NCE OF CLAIMS OF RS.5,55,143 UNDER SECTION 10 AND RS.2,500/- UNDER SECTION 16(II I) OF THE INCOME TAX ACT, 1961, RESPECTIVELY IS BAD IN LAW AND AGAINST THE FACTS AN D CIRCUMSTANCES OF THE CASE. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CONFIRMING THE ADDITIONS/DISALLOWANCE AND PASSING T HE IMPUGNED ASSESSMENT ORDER BEING CONTRARY TO LAW AND FACTS AND WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF HEARING AND WITHOUT CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AN D FACTUAL GROUNDS. 4. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTI ON OF THE LD. AO IN CHARGING INTEREST U/S 234 A OF THE INCOME TAX ACT, 1961. 5. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF THE LD. AO IN CHARGING INTEREST U/S 234B OF THE INCOME TAX ACT, 1961. 6. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTAN CES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTI ON OF THE LD. AO IN CHARGING INTEREST U/S 234C OF THE INCOME TAX ACT, 1961. 7. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTI ON OF THE LD. AO IN CHARGING INTEREST U/S 234D OF THE INCOME TAX ACT, 1961. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL TH E ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. PAGE 2 OF 3 I.T.A .NO.-2734/DEL/2016 VIKAS JAIN VS DCIT 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE WHO IS AN INDIVIDUAL RETURNED AN INCOME OF RS.34,62,360/- FROM (A) SALARY AND (B) OT HER SOURCES BEING INTEREST FROM BANK. THE RETURN WAS PICKED UP FOR SCRUTINY AFTER ISSUANCE OF NOTICE U/S 143(2) AND 142(1) ON 22.08.2013; 08.07.2013; 10.10.2013; AND 13.11.2013 AS THE AO NOTED THAT AS PER FORM NO.16A, THE ASSESSEE HAD RECEIVED SALARY FROM TWO E MPLOYERS DURING THE YEAR. WHEREAS SALARY FOR 10 MONTHS WAS CLAIMED TO HAVE BEEN RECEI VED FROM K.P.H.DREAM CRICKET P.LTD.; FOR TWO MONTHS, IT HAD BEEN RECEIVED FROM JSW STEEL LIM ITED. THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE EXEMPTION CLAIMED U/S 10 OF THE I.T.ACT , 1961. IN THE ABSENCE OF ANY EVIDENCE FROM THE ASSESSEE, THE AO MADE ADDITIONS AS A RESUL T OF WHICH THE TOTAL INCOME OF THE ASSESSEE WAS COMPUTED AT RS.40,20,010/-. THE ASSES SEE CHALLENGED THESE ADDITIONS MADE BY WAY OF A DISALLOWANCE OF THE EXEMPTION BEFORE TH E CIT(A). THE ADDITIONS MADE, WERE SUSTAINED HOLDING AS UNDER:- 5. GROUNDS OF APPEAL NO.1 & 2. HAVING CONSIDERED FACTS AND CIRCUMSTANCES OF THE C ASE, I FIND THAT IN FORM NO.16 GIVEN BY THE EMPLOYER, THE DEDUCTION U/S 10 I S MENTIONED TO BE RS.5,53,544/-. HOWEVER, IT IS NOT ASCERTAINABLE HO W THIS EXEMPTION HAS BEEN COMPUTED AND WHAT ARE ITS INGREDIENTS, NATURE OF CO RRESPONDING PAYMENTS BY EMPLOYER IS NOT ASCERTAINABLE. IN ABSENCE OF SUCH RELEVANT FACTS/EVIDENCES, THE QUESTION OF EXEMPTION CANNOT BE DECIDED IN FAVOUR O F THE APPELLANT. WHEN THE NATURE OF THE PAYMENTS IS NOT KNOWN, THE DEDUCTION U/S 10 CANNOT BE ALLOWED. IT IS FOR THE ASSESSEE TO PRODUCE DERAILS OF THESE RECEIP TS AND JUSTIFY THE CLAIM OF DEDUCTION. THE APPELLANT HAS FAILED TO DISCHARGE T HIS ONUS. THE ACTION OF THE A.O. CALLS FOR NO INTERFERENCE. THE ADDITION IS THEREFO RE, SUSTAINED. GROUNDS OF APPEAL NO.1 & 2 ARE REJECTED. GROUND OF APPEAL NO.3 AS REGARDS THE EXEMPTION U/S 16(III), I FIND THAT T HOUGH FORM NO.16 MENTIONS DEDUCTION OF RS.2000/- ALLOWABLE TO THE ASSESSEE AS TAX ON EMPLOYMENT, NO EVIDENCE HAS BEEN FILED TO PROVE THAT THE EMPLOYER HAD PAID THIS TAX AND THAT HE HAD INCLUDED THE SAME IN GROSS RECEIPTS. IN ABSENC E OF SUCH DETAILS, THE DEDUCTION CANNOT BE ALLOWED. THE ADDITION IS SUSTA INED. GROUND OF APPEAL NO.3 IS REJECTED. GROUND APPEAL NO.4 TO 10 GROUNDS OF APPEAL NO4 TO 7 ARE CONSEQUENTIAL IN NAT URE WHILE GROUNDS OF APPEAL NO.8 TO 10 ARE GENERAL IN NATURE AND THEREFORE, THE SE GROUNDS OF APPEAL REQUIRE NO COMMENT. 3. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL. T HE LD.AR SUBMITTED THAT ON FACTS THE SUBMISSIONS OF THE ASSESSEE HAVE NOT BEEN ADDRESSED AND IN CASE THE EVIDENCE RELIED WAS FOUND TO BE NOT SUFFICIENT, THEN THE CIT(A) COULD H AVE ASKED FOR AN EXPLANATION. ACCORDINGLY IT WAS HIS PRAYER THAT THE ADDITIONS MADE SHOULD BE DE LETED. PAGE 3 OF 3 I.T.A .NO.-2734/DEL/2016 VIKAS JAIN VS DCIT 4. LD.SR.DR SUBMITTED THAT THE MATTER MAY BE REMAND ED TO THE CIT(A) TO CONSIDER THE EXPLANATION OF THE ASSESSEE INSTEAD OF DELETING THE ADDITION AT THIS STAGE. REFERRING TO THE GROUNDS RAISED BY THE ASSESSEE WHO HAS PLEADED LACK OF OPPORTUNITY BEFORE THE CIT(A), IT WAS SUBMITTED THE OPPORTUNITY MAY BE GRANTED. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. I FIND THAT THE ADDITIONS HAVE BEEN MADE BY THE AO AS NECE SSARY EVIDENCE IN SUPPORT OF THE CLAIM WAS NOT MADE AVAILABLE TO THE AO. CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES WHERE THE LD.AR HAS PLEADED LACK OF OPPORTUNITY IN THE GR OUNDS RAISED, IT IS CONSIDERED APPROPRIATE TO ACCEPT THE PRAYER OF THE PARTIES AND SET ASIDE T HE IMPUGNED ORDER DIRECTING THE LD.CIT(A) TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE. TAKING NOTE OF THE FACT THAT NECESSARY E VIDENCES WERE NOT FILED BEFORE THE AO. IT IS DEEMED APPROPRIATE TO PERMIT THE ASSESSEE TO FIL E EVIDENCE IN SUPPORT OF ITS CLAIM. THE CIT(A) AFTER CONFRONTING THE SAME TO THE AO AND SEE KING A REMAND REPORT IF NEED CONFRONT THE SAME TO THE ASSESSEE BEFORE PASSING A SPEAKING ORDER IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 01 OF FEBRUARY 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