Ms. Gunjan Gupta, New Delhi V. ITO, New Delhi

ITA 2834/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6810 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 13 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: 16-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 18-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

I.T.A .NO.-2834/DEL/2016 GUNJAN GUPTA VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-2834/DEL/2016 (ASSESSMENT YEAR-2009-10) GUNJAN GUPTA, 116-DU, VISHAKHA ENCLAVE, PRITAMPURA, NEW DELHI-110034. PAN-AHRPG5282E ( APPELLANT) VS ITO, WARD-70(1), NEW DELHI. (RESPONDENT) ASSESSEE BY SH.K.SAMPATH, ADV. & SH.V.RAJA KUMAR, ADV. REVENUE BY SH.F.R.MEENA, SR.DR DATE OF HEARING 16.11.2016 DATE OF PRONOUNCEMENT 01.02.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 02.02.2016 OF CIT(A)-21, NEW DELHI PERT AINING TO 2009-10 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN: 1. CONFIRMING THE ADDITIONS MADE BY THE ASSESSING O FFICER ON ACCOUNT OF CASH DEPOSITED IN BANK TREATING THE SAME AS UNDISCL OSED; 2. DIRECTING THE ASSESSING OFFICER TO FURTHER EXAMI NE THE NATURE AND SOURCE OF DEPOSITS RELATING TRANSACTIONS IN ASSESSEES BAN K ACCOUNT. BOTH THE ABOVE ACTIONS BEING ARBITRARY, ERRONEOUS, MISCONCEIVED AND UNJUST MUST BE QUASHED WITH DIRECTIONS FOR RELIEF. 2. AT THE TIME OF HEARING, LD.AR INVITING ATTENTIO N TO THE IMPUGNED ORDER SUBMITTED THAT THE CIT(A) WHILE ARRIVING AT THE CONCLUSION HAS TAK EN INCORRECT FACTS INTO CONSIDERATION. IT WAS SUBMITTED THAT DESPITE NOTING THE ARGUMENTS ADVANCE D BY THE ASSESSEE IN THE EARLIER PART OF HIS ORDER WHICH WAS A REPETITION OF THE SUBMISSIONS MADE BEFORE THE AO WHILE DECIDING THE ISSUE HE HAS MISTAKENLY NOT CONSIDERED THE FOLLOWIN G REPLIES OF THE ASSESSEE RECORDED IN UN- NUMBERED PAGE 4 AND THE SPECIFIC DETAILS RECORDED A T UN-NUMBERED PAGE 5 OF THE IMPUGNED ORDER WHICH ARE EXTRACTED HEREUNDER:- NOTE ON CASH DEPOSITS OF RS.16 LACS AS PER AIR ON 21.06.2008, DEPOSIT OF RS.9 LACS HAD BEEN EXPLAI NED WHERE THE SAME WAS WITHDRAWN ON 21.04.2008. ON 01.07.2008, DEPOSIT OF RS.5 LACS HAD BEEN EXPLAI NED WHERE THE SAME WAS WITHDRAWN ON 24.04.2008. ON 01.08.2008, DEPOSIT OF RS.2 LACS WAS A WRONG ENT RY MADE BY BANK WHICH WAS REVERSED AND RECTIFIED BY THE BANK ON THE SAME DATE ON 01.08.2008. 2.1. IT WAS SUBMITTED THAT THE ADDITION OF RS. 16 L ACS MADE BY THE AO STOOD EXPLAINED AND RS. 2 LACS IT WAS EXPLAINED AS THE MISTAKE RECORDIN G WAS CORRECTED BY THE BANK. QUA THE REMAINING ISSUE, ATTENTION WAS INVITED TO THE FACT TO THE FOLLOWING FACTUAL OBSERVATION MADE BY THE CIT(A):- PAGE 2 OF 2 I.T.A .NO.-2834/DEL/2016 GUNJAN GUPTA VS ITO I HAVE CAREFULLY GONE THROUGH THE BANK STATEMENT F ILED BY THE ASSESSEE AND FOUND THAT THE ASSESSEES CLAIM THAT HE WITHDREW THE MONE Y FIRST WHICH WAS LATER ON DEPOSITED IN HIS BANK ACCOUNT IS FACTUALLY INCORREC T IN SO MUCH AS THAT FROM THE BANK STATEMENT IT IS OBVIOUS THAT THE ASSESSEE HAS FIRST DEPOSITED THE MONEY WHICH WAS LATER ON WITHDRAWN BY HIM.. 2.2. THE REMAINING HAD BEEN EXPLAINED AS THE WITHDR AWAL MADE ON 21.04.2008; 24.04.2008 AND 01.08.2008 WAS DEPOSITED ON 21.06.2008 AND 01.0 7.2008 AND 01.08.2008. THESE FACTS IT WAS SUBMITTED ARE SUPPORTED BY THE STATEMENT FROM THE BANK WHICH THE LD.AR WAS WILLING TO SHOW BEFORE THE TAX AUTHORITIES. ACCORDINGLY, IT W AS HIS LIMITED PRAYER THAT THE CIT(A) MAY BE DIRECTED TO ADDRESS THE FACTUAL INACCURACY RECORDED IN HIS FINDING. LD.SR.DR HAD NO OBJECTION IF THE ISSUE IS RESTORED AND VERIFIED THE ORDER AT THE CIT(A) STAGE. 3. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES B EFORE THE BENCH, THE IMPUGNED ORDER IS SET ASIDE AS THE CONCLUSION HAS BEEN ARRIVED ON THE BASIS OF WRONG FACTS. THE CLAIM OF THE ASSESSEE THAT WITHDRAWALS WERE MADE FIRST AND THE D EPOSITS THEREAFTER STATED TO BE EXPLAINABLE FROM THE BANK STATEMENT IS SOUGHT TO BE VERIFIED. THE SAID CLAIM NEEDS TO BE EXAMINED ON FACTS FOR WHICH PURPOSE THE BANK STATEM ENTS ARE DIRECTED TO BE TAKEN INTO CONSIDERATION. ACCEPTING THE PRAYER OF THE PARTIES, THE IMPUGNED ORDER ACCORDINGLY IS SET ASIDE DIRECTING THE LD.CIT(A) TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE SAID ORDER WAS PRONOUNCED ON THE DATE OF HEARING ITSELF IN THE OPEN COURT. 4. 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