Devendra Panday, New Delhi V. ITO (TDS), New Delhi

ITA 2792/DEL/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4280 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 29-09-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 16-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIB RAMANJANEYULU
• Keywords: Salary income; Additional evidence

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-II NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER ITA NO. 2792/DEL/2016 ASSTT. YR: 2010-11 DEVENDRA PANDEY VS. ITO, TDS WARD 71(1), D-106, 4 TH FLOOR, SECTOR-8, DELHI. DWARKA, DELHI. PAN: ALKPP 4978 P ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI MANOJ KUMAR CA RESPONDENT BY : SHRIB. RAMANJANEYULU SR. DR DATE OF HEARING : 29/09/2016. DATE OF ORDER : 7/10/2016. O R D E R PER S.V. MEHROTRA, A.M: THIS IS ASSESSEES APPEAL AGAINST THE ORDER DATED 09.03.2016, PASSED BY THE LD. CIT(A)-28, NEW DELHI IN APPEAL NO. 531/1 3-14/200/15-16, RELATING TO A.Y. 2010-11. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HAD FI LED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 9,10,224/-. THE AO IN PARA 1 OF HIS ORDER HAS ENUMERATED VARIOUS NOTICES ISSUED TO ASSESSEE, WHIC H REMAINED UNCOMPLIED. THE MAIN ISSUE WAS IN REGARD TO SOURCE OF DEPOSIT O F CASH OF RS. 11,51,000/- WITH CITY BANK, NEW DELHI AND RS. 23,28,500/- WITH IDBI BANK LTD. 2 FURTHER, AO NOTICED THAT ASSESSEE HAD CLAIMED CONVE YANCE/ TRANSPORT ALLOWANCE, DRIVERS SALARY AND OTHER ALLOWANCES AGA INST THE INCOME FROM SALARY. THE NECESSARY EVIDENCES WERE NOT FILED. HE DISALLOWED SOME OF THE CLAIMS AND MADE AN ADDITION OF RS. 3,79,176/- OVER AND ABOVE THE ADDITION OF RS. 34,79,500/- IN REGARD TO DEPOSITS WITH THE T WO BANKS NOTED ABOVE. 3. BEFORE LD. CIT(A) THE ASSESSEE SUBMITTED THAT WH EN THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY, HE APPOINTED M R. N.S. DALAL FOR REPRESENTING THE CASE BEFORE THE AO. ALL THE NOTICE S RECEIVED FROM THE OFFICE OF AO WERE SENT TO SHRI N.S. DALAL. HOWEVER, HE DID NOT APPEAR IN ANY PROCEEDINGS BEFORE THE AO AND THE CASE WAS DECIDED EX PARTE. THE ASSESSEE FILED ADDITIONAL EVIDENCE DURING THE COURSE OF APPE LLATE PROCEEDINGS. THE SAME WERE FORWARDED TO AO VIDE OFFICE LETTER DATED 26.12.2004 FOR VERIFICATION AND REPORT. THE COMMENTS OF THE AO HAV E BEEN REPRODUCED AT PAGES 2 AND 3 OF LD. CIT(A)S ORDER. IN THESE COMME NTS THE AO PRIMARILY HELD THAT SINCE NON-ATTENDANCE TO THE NOTICES ISSUE D WAS DELIBERATE, THEREFORE THE CASE DID NOT QUALIFY TO BE CONSIDERED UNDER RUL E 46A.THIS REPORT WAS FORWARDED TO ASSESSEE FOR HIS COMMENTS. THE ASSESSE ES REPLY HAS BEEN REPRODUCED IN PARA 4 OF LD. CIT(A)S ORDER IN WHICH PRIMARILY IT WAS EMPHASIZED THAT THE DEFAULT ON THE PART OF ASSESSEE WAS DUE TO PROFESSIONAL BREACH IN SERVICE BY CA. ACCORDINGLY, IT WAS REQUES TED TO ACCEPT THE ADDITIONAL EVIDENCE AND SENT IT BACK TO THE LD. AO FOR HIS COMMENTS ON MERITS. 4. LD. CIT(A), AFTER CONSIDERING THE CONDUCT OF ASS ESSEE BEFORE AO, POINTED OUT THAT ASSESSEE HAD NOT FURNISHED ANY SUP PORTING EVIDENCE TO PROVE THAT THE EXPLANATION OFFERED WAS GENUINE. HE FURTHE R POINTED OUT THAT IN ALL 3 HUMAN PROBABILITIES, SALARIED EMPLOYEE, WHOSE CASE HAD BEEN SELECTED FOR SCRUTINY, WOULD NOT FORWARD THE NOTICE RECEIVED BY ASSESSEE TO CA IN ROUTINE MANNER. HE FURTHER POINTED OUT THAT WHEN NOTICE U/S 271(1)(B) WAS ISSUED, THEN AT LEAST HE SHOULD HAVE APPEARED PERSONALLY OR AT LEAST SHOULD HAVE REPLIED TO THE SHOW CAUSE NOTICE OF THE AO. HE, ACC ORDINGLY, CONCLUDED THAT REQUEST OF ASSESSEE UNDER RULE 46A DESERVED TO BE R EJECTED. 5. AFTER CONSIDERING MERITS, LD. CIT(A) PARTLY CON FIRMED THE ADDITION MADE AGAINST INCOME FROM SALARY AND ALSO TREATED TH E AMOUNT DEPOSITED IN THE TWO BANK ACCOUNTS AS UNEXPLAINED CASH DEPOSITS. 6. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AFTE R ASSESSEE FILED REJOINDER BEFORE LD. CIT(A) VIDE LETTER DATED 20.2. 2015 AND REQUESTED THE LD. CIT(A) TO ACCEPT THE ADDITIONAL EVIDENCE AND AGAIN DIRECT TO AO TO COMMENT ON MERIT, LD. CIT(A) CALLED FOR REMAND REPORT ON ME RIT ONLY. HE FURTHER POINTED OUT THAT LD. AO CARRIED OUT THOROUGH INVEST IGATION AND ASKED VARIOUS DETAILS FROM ASSESSEE, WHICH WAS SUBMITTED BY ASSES SEE AT ITOS LEVEL. AFTER CONSIDERING THIS, THE AO HAD SENT HIS REMAND REPORT . HOWEVER, IN THE MEAN TIME THE CASE MOVED TO CIT(A)-XXVIII FROM CIT(A)-XX I, WHO AFTER CONSIDERING ALL THE REPLIES AND REMAND REPORTS, ACC EPTED CERTAIN ADDITIONAL EVIDENCES AND REJECTED CERTAIN OTHER EVIDENCES. UND ER SUCH CIRCUMSTANCES, LD. COUNSEL SUBMITTED THAT THE MATTER MAY BE RESTOR ED TO THE FILE OF AO SO AS TO ENABLE THE ASSESSEE TO LEAD THE NECESSARY EVIDEN CE TO SUBSTANTIATE ITS CLAIM. LD. COUNSEL REFERRED TO FIRST REMAND REPORT DATED 5.1.2015 AT PAGE 78 OF THE PB AND THE SECOND REMAND REPORT DATED 31.7.2 015, CONTAINED AT PAGE 87 OF THE PB. 4 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND HAVE PERUSED THE RECORD OF THE CASE. IT IS WELL SETTLED LAW THAT ASSESSEE CANNOT BE MADE TO SUFFER ON ACCOUNT OF THE FAULT OF THE CA OF THE ASSESSEE. THE ASSESSEE HAS GIVEN THE NAME OF THE CA WHOM HE HAD F ORWARDED THE NOTICE. THEREFORE, LD. CIT(A)S CONCLUSION THAT THE EXPLANA TION OF THE ASSESSEE WAS NOT GENUINE, DOES NOT APPEAR TO BE CORRECT. FURTHER , LD. CIT(A) HAS ALSO ACCEPTED SOME ADDITIONAL EVIDENCES AND REJECTED CER TAIN EVIDENCES, WHICH IS GIVEN IN THE STATEMENT OF FACTS FILED BY ASSESSEE, WHICH IS REPRODUCED HEREUNDER: S. NO. PARTICULARS PAGE NO. ACCEPTED/ REJECTED 1 COPY OF ITR 1-8 NOT AD EVIDENCE 2 FORM 16 9-10 ACCEPTED 3 CERTIFICATE FROM LANDMARK (EMPLOYER) 11 ACCEPTED 4 LEDGER OF CONTRA ACCOUNT OF IDBI BANK 12-13 NOT AD EVIDENCE 5 LEDGER OF CONTRA ACCOUNT OF CITY BANK 14-15 NOT AD EVIDENCE 6 CONFIRMATION FROM ANAMIKA LAHORI ALONG WITH PAN NO. 16-17 REJECTED 7 PURCHASE AND SALE DOCUMENT 18-42 REJECTED 8 BANK STATEMENT OF CITY BANK 43-64 NOT AD EVIDENCE 9 BANK STATEMENT OF IDBI BANK 65-75 NOT AD EVIDENCE 10 REPLY FURNISHED BEFORE AO 76-78 NOT AD EVIDENCE 11 CONFIRMATION FROM WIFE 79 REJECTED 12 CONFIRMATION FROM BROTHER 80 REJECTED 7.1. CONSIDERING THE ENTIRETY OF FACTS, I CONSIDER IT IN THE INTEREST OF JUSTICE THAT ONE MORE OPPORTUNITY SHOULD BE AFFORDED TO ASS ESSEE IN ORDER TO IMPART SUBSTANTIAL JUSTICE TO HIM BECAUSE HE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE NECESSARY EVIDENCE BEFORE AO. ACCORDI NGLY, ORDERS OF BOTH THE LOWER REVENUE AUTHORITIES ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO 5 THE FILE OF THE AO FOR PASSING DE NOVO ASSESSMENT I N ACCORDANCE WITH LAW, AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCEMENT IN OPEN COURT ON 7/10/2016. SD/- (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 7/10/2016. *MP* COPY OF ORDER TO: 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI.