ITO, New Delhi V. M/s Anish Kumar Gupta HUF, New Delhi

ITA 2772/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65995 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-11-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 27-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR KEDIA SENIOR
• Keywords: Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) SHRI U.B.S. BEDI, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.2772/DEL./2011 (ASSESSMENT YEAR : 2007-08) ITO, WARD 25 (1), VS. M/S. ANISH KUMAR GUPTA HUF , NEW DELHI. KD 55, MIG FLATS, PITAMPURA, DELHI 110 088. (PAN : AAHHA1111R) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI RAJESH KUMAR KEDIA, SENIOR DR O R D E R PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE EMANATES FROM THE ORDER OF CIT (APPEALS)-XXIV, NEW DELHI DATED 08.03.2011 FOR THE ASSESSMENT YEAR 2007-08. THE GROUNDS OF APPEAL READ AS UNDER :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW CIT (A) HAS ERRED IN 1. IN DELETING THE ADDITION OF RS.30 LACS ON ACCOUN T OF INCOME U/S 68 OF THE I T ACT VIOLATING THE RULE 46A OF THE INCOME TA X AS THE ADDITIONAL EVIDENCE WERE FILED BY THE ASSESSEE BEFORE THE APPE LLATE AUTHORITY WHICH WERE NEVER EXAMINED BY THE A.O. AND FOUND TO BE NOT ADMISSIBLE. 2. IN ACCEPTING THE SWEEPING SUBMISSIONS OF THE ASS ESSEE WHICH DO NOT STAND SUPPORTED BY EVIDENCES. 3. THE APPELLANT CRAVES THE RIGHT TO ADD OR ALTER A NY GROUND OF APPEAL. ITA NO.2772/DEL./2011 2 2. THE KARTA OF ASSESSEE HUF IS A CHARTERED ACCOUNT ANT. ON THE BASIS OF AIR INFORMATION THAT THE ASSESSEE HAS DEPOSITED RS.30 L ACS IN CASH IN SAVING BANK ACCOUNT DURING THE RELEVANT PERIOD, THE ADDITION WAS MADE U /S 68 OF THE INCOME-TAX ACT, 1961. 3. THE REVENUE HAS RAISED THE ISSUE OF VIOLATION OF RULE 46A OF INCOME-TAX ACT, 1961 IN THE GROUNDS OF APPEAL AND PRAYED THAT ADDITIONAL EVIDENCES FILED BEFORE THE CIT (A) WERE NEVER EXAMINED BY THE ASSESSING OFFICER AND THESE S HOULD NOT HAVE BEEN ADMITTED. 4. PRIOR TO THE DATE OF HEARING ON 20.11.2012, THIS CASE WAS FIXED FOR HEARING FOR VARIOUS DATES, I.E., ON 01.08.2011, NONE ATTENDED O N BEHALF OF THE ASSESSEE; ON 01.12.2011 & 27.03.2012, THE KARTA OF THE ASSESSEE HUF ATTENDE D AND CASE WAS ADJOURNED ON HIS REQUEST; ON 10.07.2012, NONE ATTENDED AND A FRESH N OTICE WAS ISSUED FOR 20.11.2012 AND ON THIS DATE, NONE ATTENDED ON BEHALF OF THE ASSESSEE. 5. WE HAVE HEARD THE REVENUE AND GONE THROUGH THE O RDER OF THE CIT (A) AND ALSO THE ORDER OF ASSESSING OFFICER. WE HAVE ALSO PERUSED T HE RECORDS AVAILABLE. AFTER HEARING, WE FIND THAT THE CIT (A) HAS ADMITTED THE ADDITIONAL E VIDENCES WHICH WERE NEVER FILED BEFORE THE ASSESSING OFFICER. THE EXPLANATION FOR SOURCE OF DEPOSIT OF RS.30 LACS HAS BEEN TAKEN AS A CASH WITHDRAWAL STARTING BY 15.05.2006 TO 05.1 2.2006. THE DETAILS ARE AS UNDER :- CASH WITHDRAWALS RS. 15.05.06 30000/- 02.06.06 463000/- 06.09.06 1000000/- 18.09.06 49000/- 26.09.06 950000/- 03.10.06 500000/- 05.12.06 8000/- TOTAL : 3000000/- THE CASH OF RS.23 LACS WAS DEPOSITED ON 15.12.2006 AND RS.7 LACS ON 16.12.2006. THE CIT (A) HAS RELIED ON THE SUBMISSION OF THE ASSESSE E THAT THE CASH WAS WITHDRAWN FROM THE ITA NO.2772/DEL./2011 3 BANK FOR THE PURCHASE OF THE PROPERTY FROM SMT. SUS HILA RANI GUPTA AND IT IS ALSO STATED THAT THE EVIDENCE FILED WAS IN HER POSSESSION DURIN G THE PERIOD WHEN THE ASSESSMENT WAS GOING ON. A COPY OF THE AGREEMENT TO SELL WAS ALSO FILED BEFORE THE CIT (A) WHICH HAS BEEN RELIED UPON TO BELIEVE THE ASSESSEES CONTENTI ON. AFTER GOING THROUGH THE ORDER OF CIT (A), WE FIND THAT THE ASSESSING OFFICER WAS NOT PROVIDED ADEQUATE OPPORTUNITY TO EXAMINE THE EVIDENCES SUBMITTED BEFORE THE CIT (A). IN VIEW OF THESE FACTS, THERE IS VIOLATION OF RULE 46A. IN THE INTEREST OF JUSTICE AND EQUITY, WE FIND IT APPROPRIATE TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING DE NOVO AFTER CONSIDERING AND EXAMINATION OF THE DOCUMENTS SUBMITTED OR TO BE SUB MITTED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF NOVEMBER, 2012. SD/- SD/- (U.B.S. BEDI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 30 TH NOVEMBER, 2012/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXIV, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.