Salek Chand Yadav, Noida V. ITO, Noida

ITA 2752/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4780 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Opportunity of being heard; Additional evidence
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.2752/DEL./2017 ASSESSMENT YEAR 2008-2009 SHRI SALEK CHAND YADAV NEAR SUNDER FARM HOUSE, H.NO.333, VILLAGE SARFABAD, SECTOR-73, NOIDA, UP-201 301. PAN BGYPC7450H VS. THE INCOME TAX OFFICER WARD-3(3) NOIDA. U.P. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI VIVEK GUPTA, C.A. FOR REVENUE : SHRI T. VASANTHAN, SR. D.R. DATE OF HEARING : 06.09.2017 DATE OF PRONOUNCEMENT : 13.09.2017 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-1, NOIDA, DATED 24 TH FEBRUARY, 2017, FOR THE A.Y. 2008-2009, CHALLENGING THE ADDITION OF RS.17 L AKHS. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT IN THIS CASE PROCEEDING UNDER SECTION 147 WERE INITIATED BY ISSUING NOTICE UNDER SECTION 148 ON 31 ST MARCH, 2015. THE NOTICE WAS SENT THROUGH SPEED POS T AND ASSESSEE WERE REQUIRED TO FURNISH RETURN OF INCOME BUT ASSESSEE DID NOT FILE ANY RETURN OF INCOME. THE A.O. NOTED THAT AIR INFORMATION WAS RECEIVED THAT ASSESSEE IN ASSESSMENT YEAR UNDER APPEAL HAD 2 ITA.NO.2752/DEL./2017 MR. SALEK CHAND YADAV, NOIDA. MADE CASH DEPOSITS OF RS.17 LAKHS IN HIS S.B. ACCOU NT WITH BANK OF INDIA. THE ASSESSEE DID NOT FILE ANY EVIDENCE OF SO URCE OF THE CASH DEPOSITED. A.O. ACCORDINGLY, TREATED THE SAME AS IN COME FROM OTHER SOURCES AND MADE ADDITION OF RS.17 LAKHS. 3. THE LD. CIT(A) NOTED THAT ASSESSEES SON APPEAR ED FOR THE ASSESSEE. IT WAS EXPLAINED THAT ASSESSEE IS A RETIR ED EMPLOYEE OF BANK OF INDIA. ASSESSEE COULD NOT APPEAR BEFORE A.O. BEC AUSE NO NOTICE HAVE BEEN SERVED UPON HIM. THE ASSESSEE SOUGHT LEAV E TO FURNISH ADDITIONAL EVIDENCE WHICH WAS GRANTED AND NECESSARY EVIDENCE SUBMITTED ON BEHALF OF THE ASSESSEE, WERE FORWARDED TO A.O. FOR NECESSARY CONSIDERATION. THE A.O. VIDE REPORT DATED 8 TH DECEMBER, 2016 SUBMITTED THE REPORT AND REJECTED THE CONTENTI ON OF ASSESSEE THAT HE HAS DEPOSITED THE CASH OUT OF COMPENSATION RECEIVED BY IT FOR LAND ACQUIRED BY THE STATE FROM HIS FAMILY. THE LD. CIT(A) NOTED IN THE IMPUGNED ORDER THAT ASSESSEE ALONG WITH OTHERS OWNED CERTAIN AGRICULTURAL LAND WHICH WAS ACQUIRED BY THE STATE A ND FOR WHICH COMPENSATION OF RS.65,32,519 AND THEREAFTER, RS.7,9 8,875 WAS RECEIVED BY THE ASSESSEE AND HIS FAMILY AND THIS WA S DEPOSITED IN THE BANK ACCOUNT WITH STATE BANK OF INDIA ON 04.04.2012 . THIS AMOUNT 3 ITA.NO.2752/DEL./2017 MR. SALEK CHAND YADAV, NOIDA. WERE DEPOSITED IN THE BANK ACCOUNT WITH SBI, NOIDA AND WAS WITHDRAWN IN CASH AND DISTRIBUTED AMONG ALL THE SHA REHOLDERS. FROM THE PERUSAL OF THE BANK ACCOUNT WITH THE SBI, LD. C IT(A) SEEN THAT ON 21 ST APRIL, 2012, ASSESSEE AND HIS FAMILY MEMBERS WITHD RAWN RS.65,32,000 AND ON 26 TH APRIL, 2007, ASSESSEE HAS DEPOSITED RS.9 LAKHS AND RS.6 LAKHS IN HIS BANK ACCOUNT MAINTAINED WITH BANK OF INDIA. THE LD. CIT(A) NOTED THAT SINCE COMPENSATION WAS RECEIVED IN THE MONTH OF APRIL, 2012 WHILE CASH WERE DEPOSITED IN THE BANK ACCOUNT IN THE MONTH OF APRIL, 2007 AND DECEMBER, 2 007, THEREFORE, EXPLANATION GIVEN BY ASSESSEE IS INCORRECT. THE ADD ITION WAS CONFIRMED AND APPEAL OF ASSESSEE HAS BEEN DISMISSED . 4. AFTER CONSIDERING THE RIVAL CONTENTIONS, I AM O F THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEV EL OF THE A.O. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT LAN D WAS ACQUIRED IN 2007. THE ASSESSEE ALONG WITH OTHER FAMILY MEMBE RS I.E., 04 IN NUMBER WERE THE OWNER OF THE AGRICULTURAL LAND WHIC H WAS ACQUIRED AND COMPENSATION WAS RECEIVED ON 31 ST MARCH, 2007 IN A SUM OF RS.16,62,274 (PB-8) AND RS.45,87,876 (PB-9), PB-5 I S JOINT BANK ACCOUNT OF THE ASSESSEE AND HIS BROTHERS IN WHICH C OMPENSATION 4 ITA.NO.2752/DEL./2017 MR. SALEK CHAND YADAV, NOIDA. AMOUNT THROUGH CLEARING OF RS.62,50,150 WAS CREDITE D IN THEIR JOINT ACCOUNT ON 24.04.2007 AND ON 26.04.2007 CASH OF THI S SIMILAR AMOUNT OF RS.62,49,000 WERE WITHDRAWN IN CASH. PB-7 IS BANK ACCOUNT OF ASSESSEE IN WHICH THE ASSESSEE MADE DEPO SIT OF RS.9 LAKHS AND 6 LAKHS ON 26 TH APRIL, 2007 ON THE SAME DAY AFTER WITHDRAWING THE AMOUNT FROM THE JOINT BANK ACCOUNT. LEARNED COU NSEL FOR THE ASSESSEE SUBMITTED THAT LD. CIT(A) HAS TAKEN THE WI THDRAWAL OF THE AMOUNT OF RS.65,32,000 ON APRIL, 2012 WHICH WAS THE SECOND AMOUNT RECEIVED OUT OF COMPENSATION. LEARNED COUNSE L FOR THE ASSESSEE THEREFORE, SUBMITTED THAT ASSESSEE PRODUCE D SUFFICIENT EVIDENCE BEFORE THE LD. CIT(A) ON WHICH REMAND REPO RT WAS ALSO CALLED FOR BUT THE FINDING HAVE BEEN GIVEN TOTALLY AGAINST THE DOCUMENTS PRODUCED BEFORE THE LD. CIT(A). LD. D.R. HOWEVER, R ELIED UPON THE ORDER OF THE LD. CIT(A). 5. CONSIDERING THE SUBMISSIONS OF THE PARTIES IN T HE LIGHT OF THE DOCUMENTS NOW FILED IN THE PAPER BOOK, I AM OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE A.O. BECAUSE THE DOCUMENTS NOW FILED ON RECORD PRIMA FACIE SUPPORT T HE EXPLANATION OF ASSESSEE BUT THESE DOCUMENTS HAVE NOT BEEN FILED BEFORE THE A.O. 5 ITA.NO.2752/DEL./2017 MR. SALEK CHAND YADAV, NOIDA. AND LD. CIT(A) HAS GIVEN A FACTUALLY INCORRECT FIND ING OF FACT IN THE APPELLATE ORDER. I, ACCORDINGLY, SET ASIDE THE ORDE RS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF THE A.O . WITH A DIRECTION TO REDECIDE THE MATTER IN ISSUE, BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE A.O . SHALL PASS REASONED ORDER ON THE DOCUMENTS FILED BY THE ASSESS EE BEFORE THE TRIBUNAL. ASSESSEE IS DIRECTED TO FILE COPIES OF TH E SAME BEFORE THE A.O. FOR ADJUDICATION IN THE MATTER AND SHALL NOT S EEK ANY UNNECESSARY ADJOURNMENTS IN THE MATTER. ASSESSEE SH ALL COOPERATE WITH THE A.O. FOR FINALIZATION OF THE MATTER IN ISS UE. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 13 TH SEPTEMBER, 2017 VBP/- 6 ITA.NO.2752/DEL./2017 MR. SALEK CHAND YADAV, NOIDA. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.